Statement of the Case.

"That the persons named in said bill of complaint as complainants never did, and that none of said persons ever did, in truth or in fact or in good faith, request the said Stephen W. Purington and John A. Stanly, claiming to be the trustees aforesaid, or in any capacity, or either of them, to institute any suit, action or proceeding against the defendants, the said James P. Merritt and Frederick A. Merritt, or either of them, or any person or persons whatever, to quiet the title to real estate, or any part thereof, alleged in the said bill of complaint to have been conveyed to said Stephen W. Purington and John A. Stanly in trust, or to secure an injunction restraining the said James P. Merritt and Frederick A. Merritt, or either of them, from violating what is alleged in said bi'l of complaint to be their covenants, promises and agreements, alleged in said bill to have been made by them with Catharine M. Garcelon, or from violating any of said alleged covenants, promises or agreements, or to secure a specific performance of said alleged covenants, promises or agreements or any of them, or any action, suit or proceeding whatever; that said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, or in any capacity, never in truth or in fact or in good faith declined or refused to bring such or any action; that if the persons or any of them named in said bill of complaint as complainants therein ever did request said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, or either of them, to institute any action, suit or proceeding whatever, or if they or either of them ever declined or refused so to do, such request and such declination were not and each of them was not made honestly or in good faith, but at the fraudulent instance and request of said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, and solely to enable said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, to feign and falsely pretend to refuse such request, and thereupon to institute falsely fraudulently and prosecute in this court this action against this defendant.

"That in truth and in fact said bill of complaint was prepared and filed in this court by said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, and

Counsel for Parties.

by them only, and the same and this action has ever since been and is now being prosecuted by them only.

"That this action is not in truth or in fact a controversy between citizens of different States. That this action is in truth and in a fact a controversy solely between citizens of the State of California, that is to say, until the death of said Stephen W. Purington, between the said Stephen W. Purington and John A. Stanly, claiming to be trustees as aforesaid, citizens of the State of California, and since his death, by said John A. Stanly, claiming to be such trustee, on the one side, and the said Frederick A. Merritt and this defendant on the other side. That this court has no jurisdiction of the said bill of complaint and no jurisdiction of this cause."

The cause was heard on a motion of the defendant James P. Merritt to dismiss the suit as a collusive one within the meaning of section five of the act of March 3, 1875. It was adjudged that the plea in abatement was not sustained by the evidence, and the motion to dismiss was consequently overruled. 63 Fed. Rep. 213. A final decree in favor of the plaintiffs was entered June 18, 1896. From that decree an appeal was prosecuted directly to this court. But on the 24th of May, 1897, the appeal was dismissed upon the authority of Colvin v. Jacksonville, 158 U. S. 456; The Bayonne, 159 U. S. 687, 692; and Chappell v. United States, 160 U. S. 499,507, 508. Merritt v. President & Trustees of Bowdoin College, 167 U. S. 745. In the first of the cases cited it was adjudged that when a case is brought here directly from a Circuit Court of the United States upon the ground that it involves the jurisdiction of that court, the certificate as to jurisdiction must be granted during the term at which the judgment or decree is entered. The present appeal was taken on the 17th of June, 1897, and the case is before the court on a motion of appellees to dismiss the same for want of jurisdiction in this court.

Mr. William A. Maury, Mr. Thomas H. Hubbard, Mr. George N. Williams, Mr. Robert Y. Hayne and Mr. E. S. Pillsbury for the motion.

Mr. A. T. Britton, Mr. A. B. Browne, opposing.

Opinion of the Court.

MR. JUSTICE HARLAN delivered the opinion of the court.

The object of the plea in abatement was to bring about a dismissal of the suit under the fifth section of the act of March 3, 1875, c. 137, 18 Stat. 470. That section provides for the dismissal of a suit in a Circuit Court of the United States if it shall appear to the satisfaction of the court at any time that the parties to it "have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act."

By the act of March 3, 1891, c. 517, 26 Stat. 826, appeals or writs of error may be taken from the District Courts or the Circuit Courts directly to this court in certain cases, among which are cases in which the "jurisdiction of the court is in issue," and cases that involve "the construction or application of the Constitution of the United States." The former appeal was dismissed upon the ground that a direct appeal to this court would not lie on an issue as to the jurisdiction of the Circuit Court unless the question of jurisdiction was certified during the term at which the final decree was rendered.

It is now sought to bring the case here by appeal directly from the Circuit Court upon the ground that it involves the "construction or application of the Constitution of the United States." This position cannot be sustained. When it appears that parties have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under the act of 1875, then the Circuit Court is, within the meaning of the act of 1891, without jurisdiction to proceed. But the plea in this case raised no question as to the constitutionality of the act of 1875, and called for no order or judgment that would require a construction or application of the Constitution, although an allowance of the plea may have involved the application of an act of Congress. The plea set out certain facts which, if found to be true, required the dismissal of the suit as one of which the court could not take cognizance under the statute regulating the jurisdiction of the Circuit Courts of

Syllabus.

the United States. While the issue involved the jurisdiction of the Circuit Court, it did not involve or require, within the meaning of the act of March 3, 1891, either the construction or application of the Constitution.

For the reasons stated, the motion to dismiss the present appeal is sustained, and the appeal is

Dismissed.

The CHIEF JUSTICE did not sit in this case nor participate in its decision.

BACKUS v. FORT STREET UNION DEРОТ
COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

No. 55. Argued January 17, 18, 1898. - Decided March 7, 1898.

As the respondents, both at the trial in the Circuit Court of the State, and in the subsequent proceedings on the certiorari in the Supreme Court of the State, specifically set up and claimed rights under the Federal Constitution which were denied, the jurisdiction of this court is not open to doubt.

While this court may examine proceedings had in a state court, under state authority, for the appropriation of private property to public purposes, so far as to inquire whether that court prescribed any rule of law in disregard of the owner's right to just compensation, it may not inquire into matters which do not necessarily involve, in any substantial sense, the Federal right alleged to have been denied.

The settled rule of this court in cases for the determination of the amount of damages to be paid for private property condemned and taken for public use, is that it accepts the construction placed by the Supreme Court of the State upon its own constitution and statutes.

In case of such condemnation and taking, a State may authorize possession to be taken prior to the final determination of the amount of compensation, provided adequate provision for compensation is made.

As to the court to determine the question, or the form of procedure, all that is essential is that, in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation; and when this has been provided for there is that due process of law which is required by the Federal Constitution.

Statement of the Case.

There is no vested right in a mode of procedure established by state law for the condemnation of property for public use; but each succeeding legislature may establish a different one, provided only that in each is preserved the essential element of protection.

An appellate court is not required to set aside the judgment of the trial court by reason of failure to give instructions which were not asked for. The limit of interference by this court with the judgments of state courts is reached when it appears that no fundamental rights have been disregarded by the state tribunals.

The Supreme Court of Michigan was called upon to consider only such objections as had been particularly specified, and all others were deemed to have been waived.

The decision by the Supreme Court that it had power to set aside the verdict and order a new trial was not a reversal of a ruling that the Circuit Court had no such power.

This court is bound to accept the construction placed upon the state statute by the Supreme Court of the State, and to hold that it means that if the second appraisal was less than the first, and the amount of the first had been paid, the company was entitled to recover the difference from the party to whom it had been paid.

THE facts in this case are as follows: The defendant in error is a corporation created under the laws of the State of Michigan, for the purpose of constructing a union depot in the city of Detroit. In order to connect this depot with the railroads desiring to enter, it was necessary to place tracks on River street, and some of the way, at least, these tracks had to be elevated above the grade of the street. As a part of its enterprise the Depot Company undertook the work of constructing these tracks. The plaintiffs in error were the owners of a manufacturing plant. The individual plaintiff in error held the title in fee to the property and the corporation plaintiff in error was his lessee. This manufacturing plant fronted on River street, and fronted on that part of it where the tracks were necessarily on a viaduct far above the surface. No part of the ground actually occupied by the plant was sought to be taken, but under the laws of Michigan the owner of a lot fronting on a street owns to the centre of the highway and is entitled to recover damages in case that street is appropriated to the use of a railroad. The third clause in section 4 of the Union Depot act (1 How. Comp. § 3461) provides specifically that the amount of these damages shall be ascer