Year: 1872

ia this dyke cannot be adjudged nuisance and abat
ed as such, neither can it be done in the supreme
c0ut of the United States for the Jurisdiction in such
| a case Is concurrent"


Tbs unanimous opinion of the supreme court on
this question ought to be sufficient


Judge Grier in the case of the Passaic bridges in
the circuit of the United States for the district
OF New jersey in speaking of this decision of the su
prcme court in the Wheeling bridge case above cited
uses me following explicit language on the question
OF the jurisdiction Of the circuit in such case:


thust be noted as circumstance of that case that
although the State of Pennsylvania in her corporate
capacity was complainant, and propter dignitae en-
titled TO sue in the supreme OF the United States
yet, that when the bill was filed, the same complaint
might have been sustained in the circuit of the
United States of Virginia"


1T seems clear that Judge Grier was foolish enough
I'd believe that this question had been decided in the
Wheeling bridge case, and that that decision was con-
clisve This case is fully reported in the appendix
the Sd of w Wallace.


Sin in 1866 in the circuit court of the
e. for the northern district of Georgia. in the
OF the State of Georgia Atkins, this question
distinctly raised and the objection of of urisdic-
ton because the state was party made and that
court overrued the objection and sustained the urs-
dichon by force of the opinion of the supreme court
in The Wheeling bridge case and which it cited
thUity ] Abbott G. c. r. %.


Since the above opinion of the supreme court in
the Wheeling Bridge case that court has sustained
jurisdiction appeal of case of the State of Pennsy
vaa Ravenel, from the circuit for the east
err district of Pennsylvania The was originally
commenced IN the state court removed to the circuit
of the United States bv consent and that court
proceeded to try the and rendered judgment of
large amount against the defendant and the defend
ant appealed to the supreme court mot by consent)
and he supreme court affirmed the Judgment. 81
How, l03.


30 lawyer will contend that consent of parties wil
cOIfer jurisdiction the federal courts, when the
constitution or laws of the United States have not
Conferred it.


f. then, the circuit courts of the United States
have no jurisdiction in when state is party
the above proceedings and judgment in the circuit
court and III the supreme court j,tce


It is little singular that the want of jurisdiction in


the circuit court in such case, did not to any
OF the learned lawyers and judges who participated in
the trial. argument and decision of that case.


The State cf Indiana Plaintiff brought suit in the
circuit for the district of Indiana before Judge
Mclean, sitting Circuit Judge, against one Jane
Miller, to recover certain lands claimed be within
the grant of the Saline lands to the state. The
en erained jurisdiction of the and rendered udg-
ment without question. 3, Mclean, Isl.


In the case of the state of Georgia Brasford, 2
Dallas 402 Mr. Justice Wilson SAYS: " 1t is true that
under the Federal constitution, inferior tribunal
cannot compel State to appear party, but it is
very different proposition to say that state cannot
by her own consent appear in any court than the
preme court"


In the case of the United States vs. Peters, s,
Cranch l39 the supreme court the following sig
nifcant language: THE right of state assert as
plaintiff, any interest it may have in subject which
forms the matter of controversy between individuals
in of the courts of the United States not affect
ed by this amendment. 9th amendment)
Against this conclusive array of authorities and
precedents, only two claimed and which have
occurred in the circuit of the II. s. Tho one
tie of Gale vs.. Babcock, Wash, G. c. R., 1879.
This application for the removal of cause
from the state court, under the 18th section of the
ant LaF1
whether the had been brought by the petition
within that section The Judge incidentally remark
ed without either consideration necessity that the
circuit court had no jurisdiction when state
party. The state not the ostensbe party in
that The remanded, because it was not
under the 18th section The only other case
is found it seems, in that venerable law book called
" The Bankrupt Register" in the 5th vol, &c. where
District Judge bv the name of Brooks-who is he ?
in the State of North Carolina, has recently decd
ed the grave question that the circuit courts have
Jurisdiction when state is party. Truly, "a Daniel
come to judgment"


1t is safe say that the circuit courts of the United
States have entertained jurisdiction and tried more
cases. when state was party plaintiff, citizens OF
another state than the supreme court since the act
of 1899, and this judicial usage so fully warranted
and approved by the opinions of the supreme court
and of most of the old judges sitting in their circuits
ought to be conclusive.


These reasons and authorities were deemed bv the
counsel for the state abundanty sufficient not only to
warrant but mperatively require, them to bring this
suit in the circuit of the United States for the
district of Minnesota.


That jurisdiction is now refused by that court, and
shall be compelled, from necessity, to bring the
same suit in the supreme court of the United States
and shall do the best to secure an early and
favorable judgment in it.


Most respectfully submitted
II. n. SETTER,
Solicitor.