Year: 1868

The Great Railway Litigations-The Erie


Gases Postponed-Thc Chicago, Rock Island


and Pacific Railroad Case on Appeal.


Before Judges Barnard, Ingraham ana Cardozo-


In Re the Erie Rdil,cay Company, 6c.-The argu.
ments on the appeals taken from various proceed
ings at special term in the different branches of this
litigation were yesterday postponed until wednes-
day next, and the motions to dissolve the njunc.
tions will be heard on Thursday.


James FISK, J., ct al Us. The chicago, Rock Island
ana Pacific Railroad Company ct al Gc.-This
case came before the court yesterday appeal from
an order denying motion made at special term for
the removal OF the cause into the United States Cir.
cult Court OF this district, Charles O'Conor and
Charles Tracey appearing as counsel for the appel
lants, the defendants, and David d. Field behalf
OF the respondents.


1t was argued among other points on behalf OF the
appellants that the constitution declares that the
judicial power Of the United States shall extend to
controversies betweep citizens OF different States
that the Federal Judiciary act OF $780, in defining the
original jurisdiction OF the Circuit Courts under this
constitutional head extended 1t further than to
cases "where the suit is between citizen OF the
State where the suit is brought and citizen of an
other State;' that In 1865 the right Of removal
fully declared than by the twelfth section of the
original judiciary act and In certain respects 1t was
SUBJECT Is ON ON e
that certain affidavit be made, gives the right Of
removal 10 the citizen OF another State In terms
comprehensive as the constitution ITSELF provided
any OF the parties opposed to him, whether plain
tn or defendant, be q citizen of the State In which
the action is pending.


For the respondent II contended that the court
having stated Its opinion upon the argument already
had that the petition could not be granted under the
judiciary act the only question remaining Is whether
the case can be removed under the acts OF Congress-
one chapter 2ss and the other Of 1897 chapter
1867 The suit cannot be removed under either OF these
acts because all the plaintiffs citizens OF the
State New York; where the suit is brought Such
was the construction given TO the Judiciary act OF
17se. The same construction should be given to
these acts.


The act of 1866 specifies the suit as one "by cit.
zen OF the State IN which the suit is brought against


citizen OF another State - and the act OF 1857 as
one IN which there Is controversy between citizen
OF the state In which the suit is brought and citi
zen OF another State.n The twelfth section OF the
Judiciary act specified the suit as one "by citizen
OF the State In which the suit Is brought against a
citizen OF another State" This language precisely
that OF 1896 The language OF the act OF 1861 differs
only In this that the suit be In which there
Ii controversy between a citizen Of the State In
which the suit Is brought and a citizen OF another
State. The suit cannot be removed because the two
pettioning defendants are both citizens OF New York
This must be deemed TO be conclusive upon the am
davis as they now stand. The act OF 1897 does not
authorize the removal OF suit against corporation
The language s, such citizen OF another state whe-
ther he be plaintin or defendant, II he will
mako and file in such State court an am
davit stating that he has reason to and does
believe" &c II the two petitioning defendants were
both citizens OF Illinois, they claim the suit could
not be removed TO the Circuit Court, because when
removed the cause could not "there proceed In the
same manner as II II had been brought there by
original process against the defcndantsu pettionng
for removal; that ~ to say 1t could not proceed at
ALL Neither the federal constitution nor the act OF
Congress contemplates the denial OF justice to any
Citizen and II the effect OF the removal would be TO
take from party his right to sue, the removal can
not be made. The primary claim IL against the di.
rectors for breach Of trust and to the prosec cuton
OF this claim the corporation Is necessary party.


At the close OF the argument the court tooy The
papers, rcser,ny It's decision.