or modify a treaty with a foreign state. 2. A United States circuit court cannot, on
This was not done.

The resolution in question was introduced as a joint resolution, but it never received the assent of the House of Representatives or the signature of the President. While a joint resolution, when approved by the President, or, being disapproved, is passed by two thirds of each House, has the effect of a law (Const. art. 1, §7), no such effect can be given to a resolution of either House acting independently of the other. Indeed, the above clause expressly requires concurrent

petition for removal from a state court of a suit to enjoin the importation of armed men Into Sebastian county, Arkansas, and the town of Huntington therein, where a strike exists, take judicial notice, for the purpose of maintaining jurisdiction, that such persons could only be brought to Huntington by way of the Indian territory, and that the word "import," as used in the bill, means to bring into from another state or foreign country, as the court cannot make the complainant's case other than it made it by taking judicial notice of facts which it did not choose to rely on in its pleading.

action upon a resolution "before the same 3. A suit brought in the state court to enjoin shall take effect."

This question was considered by Mr. Attorney General Cushing in his opinion on certain Resolutions of Congress (6 Ops. Atty. Gen. 680), in which he held that while joint resolutions of Congress are not distinguishable from bills, and have the effect of law, separate resolutions of either House of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or heads of departments. The whole subject is there elaborately discussed.

In any view taken of this resolution it appears to me that it can be considered only as expressing the individual views of the Senators voting upon it.

I have no doubt the treaty might have provided, as did the act of Congress annexing Hawaii, that the existing customs rela

[185]tions *between the Spanish possessions ceded by the treaty and the United States should remain unchanged until legislation had been had upon the subject; but in the absence of such provision the case is clearly controlled by that of De Lima v. Bidwell.

STATE OF ARKANSAS, Appt.,

v.

KANSAS & TEXAS COAL COMPANY and
St. Louis & San Francisco Railroad Com-
pany.

the threatened importation of armed men into a county where a strike existed, on the ground that this would amount to a public nuisance and would endanger the health, morals, peace, and good order of the community, is not removable to a United States circuit court, under the act of March 3, 1887, as corrected by the act of August 13, 1888, as one arising under the Constitution and laws of the United States, since, even assuming that the bill shows upon its face that the relief sought would be inconsistent with the power to regulate commerce, or with regulations established by Congress, or with the 14th Amendment, It only demonstrates that the bill cannot be maintained, and not that the cause of action arose under the Constitution or laws of the United States.

PPEAL from an order of the Circuit
Court of the United States for the

Western District of Arkansas overruling a

motion to remand the cause to the state court. Reversed and remanded, with a direction to remand to the state court.

See same case below, 96 Fed. 353.

Statement by Mr. Chief Justice Fuller:
This was a bill filed in the circuit court

of Sebastian county, for the district of Greenwood, Arkansas, "by "The state of Ar-[186] kansas, on the relation of Jo Johnson, prosecuting attorney for the twelfth judicial circuit," against the Kansas & Texas Coal Company and the St. Louis & San Francisco Removal of causes--diverse citizenship Railroad Company, which "for her cause of

merce clause of the Federal Constitution and Starin v. New York, 115 U. S. 248, 29 L. of laws passed in pursuance thereof; and ed. 388, 6 Sup. Ct. Rep. 28; Carson v. Dunwhich constituted a defense in the premises. ham. 121 U. S. 421, 30 L. ed. 992, 7 Sup.

Complainant moved to remand the cause, Ct. Rep. 1030.

and defendants moved to dissolve the injune- Messrs. Joseph M. Hill, James Briztion and that complainant be restrained zolara, and Adiel Sherwood submitted from the prosecution of the suit in the state the cause for appellees:

The verb "import" means to bring into the state from another state or foreign country.

New York v. Compagnic Générale Trans, atlantique, 107 U. S. 59, 27 L. ed. 383, 2 Sup. Ct. Rep. 87; Standard Dict.; Webster's Dict.; Church of Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 227, 12 Sup. Ct. Rep. 511; United States v. Laws, 163 U. S. 258, 41 L. ed. 151, 16 Sup. Ct. Rep. 998; Wilson v. United States, 1 Brock. 423, 30 Fed. Cas. No. 17,846.

Although a state is one of the parties, the case can be removed to the Federal court where a Federal question is involved.

Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260.

The test to determine the presence of a Federal question is whether the complaint shows on its face that some right, privilege. or immunity on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite con

struction.

Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Starin v. New York, 115 U. S. 248, 29 L. ed. 288, 6 Sup. Ct. Rep. 28; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260; Southern P. R. Co. v. California, 118 U. S. 109, 30 L. ed. 103, 6 Sup. Ct. Rep. 993; Shreveport v. Cole, 129 U. S. 36, 32 L. ed. 589, 9 Sup. Ct. Rep. 210. These cases all arose prior to the present judiciary act, but in this respect the act of 1887-88, makes no change, and this line of authorities has been expressly approved and adopted in cases arising since the passage of the present judiciary act.

New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905.

In determining this question the court looks into the real controversy, irrespective of any suppressions or omissions, etc., in the complaint, and if it is found, by fair intendment, to raise a Federal question, it is removable.

South Carolina ex rel. Tillman v. Coosaw Min. Co. 45 Fed. 804.

Causes are removable notwithstanding the complaint is demurrable.

St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982; Schunk v. Moline, M. & S. Co. 147 U. S. 500, 37 L. ed. 255, 13 Sup. Ct. Rep. 416; Moon, Removal of Causes, § 44.

Mr. Chief Justice Fuller delivered the opinion of the court:

The gravamen of the bill was the injury to the health, morals, peace, and good order of the people of the town and county, the infliction of which was alleged to be threat[188]ened by the "bringing within their precincts

court was of opinion that the bill could not be maintained; but, without intimating any conclusion to the contrary, or criticising its formal sufliciency, the question that mee us on the threshold is whether the a ought to have been remanded to the state court.

We need not spend any time on the contention that this was a controversy between citizens of different states. The circuit court correctly held otherwise. The state of Ar kansas was the party complainant, and u state is not a citizen. Postal Teleg. Cable Co. v. United States, 155 U. S. 482, sub nom. Postal Teleg. Cable Co. v. Alabama, 39 I ed. 231, 15 Sup. Ct. Rep. 192.

We inquire, then, if the cause was removable because arising under the Constitution or laws of the United States.

The general policy of the act of March 3. 1887, as corrected by the act of August 13, 1888 (24 Stat. at L. 552, chap. 373; 25 Stat. at L. 433, chap. 866), as is apparent on its face, and as has been repeatedly recognized by this court, was to contract the jurisdiction of the circuit courts. Those cases, and those only, were made removable under § 2, in respect of which original jurisdiction was given to the circuit courts by § 1. Hence it has been settled that a case cannot be removed from a state court into the circuit court of the United States on the sole ground that it is one arising under the Con stitution, laws, or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And, moreover, that jurisdiction is not conferred by allegations that defendant intends to assert a defense based on the Constitution or a law or treaty of the United States, or under statutes of the United States or of a state, in conflict with the Constitution. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Rep. 738; Sawyer v. Kochersperger, 170 U. S. 303, 42 L. ed. 1046, 18 Sup. Ct. Rep. 946; Florida C. & P. R. Co. v. Bell, 176 Û. S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399.

*In this case the state asserted no right[189] under the Constitution or laws of the United States, and put forward no ground of relief derived from either. There were no averments on which the state could have invoked the original jurisdiction of the circuit court under § 1 of the act, and that is the test of the right of removal under § 2.

The police power was appealed to, the power to protect life, liberty, and property, to conserve the public health and good order, which always belonged to the states, and was not surrendered to the general gov

of certain persons by defendants. No stat- ernment, or directly restrained by the Conute of the state was referred to as appli- stitution. The 14th Amendment, in forbidcable, but the enforcement of the police pow-ding a state to make or enforce any law er was sought through the interposition of abridging the privileges or immunities of a court of equity by way of prevention of citizens of the United States, or to deprive an impending public nuisance. The circuit any person of life, liberty, or property with

146

out due process of law, or to deny to any per- | had to judicial knowledge." Oregon Short son within its jurisdiction the equal pro- Line & U. N. R. Co. v. Skottowe, 162 U. S. tection of the laws, did not invest Congress 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869;

with power to legislate upon subjects which are within the domain of state legislation. Re Rahrer, 140 U. S. 554, sub nom. Wilkerson v. Rahrer, 35 L. ed. 574, 11 Sup. Ct. Rep. 865. It is true that when the police power and the commercial power come into collision, that which is not supreme must give way to that which is supreme. But how is such collision made to appear?

Defendants argue that the circuit court might have properly taken judicial notice, or did so, of the fact that the persons whose advent was objected to as perilous to the conimunity could only be brought to Huntington by way of the Indian territory, and also that the word "import" as used in the bili meant to bring into from another state or foreign country; that, therefore, "the question is fairly presented by the complaint whether the state of Arkansas has the authority to prevent the coal company and the railroad company from bringing into the state, over the line of this railroad, laborers from other states or foreign countries;" and hence that the circuit court had jurisdiction. We do not agree with either premise or conclusion.

The word "import" necessarily meant bringing into the county and town from outside their boundaries, but we do not think, taking the whole bill together, that as here used its necessary signification was the bringing in from outside of the state.

[190] *And as to judicial knowledge, the princi-
ple applies "that the right of a court to act
upon what is in point of fact known to it
must be subordinate to those requirements
of form and orderly communication which
regulate the mode of bringing controversies
into court, and of stating and conducting
them." Thayer, Ev. chap. 7, 281.

In Mountain View Min. & Mill. Co. v. Mc-
Fadden, 180 U. S. 533, 45 L. ed. 656, 21 Sup.
Ct. Rep. 488, which was a petition for re-
moval, the suit was one brought in support
of an adverse claim under the Revised Stat-
utes, §§ 2325, 2326, and it had been previous-
ly decided that such a suit was not one aris-
ing under the laws of the United States in
such a sense as to confer jurisdiction on the
Federal courts regardless of the citizenship
of the parties. And we said: "It is con-
ceded by counsel on both sides that those de-
cisions are controlling, unless the circuit
court was entitled to maintain jurisdiction
by taking judicial notice of the fact that
the Mountain View lode claim was located
upon what had been or was an Indian ves-
ervation,' and 'of the act of Congress declar.
ing the north half of the reservation
which the claim was
upon
located,
to have been restored to the public domain:'
notwithstanding no claim based on these
facts was stated in the complaint. But the
circuit court could not make plaintiffs' case
other than they made it by taking judicial
notice of facts which they did not choose to

Chappell v. Waterworth, 155 U. S. 102, 39
L. ed. 85, 15 Sup. Ct. Rep. 34; Com. v.
Whecler, 162 Mass. 429, 38 Ν. Ε. 1115;
Partridge v. Strange, 1 Plowd. 77.

But even assuming that the bill showed
upon its face that the relief sought would
be inconsistent with the power to regulate
commerce, or with regulations established
by Congress, or with the 14th Amendment,
as contended, it would only demonstrate that
the bill could not be maintained at all, and
not that the cause of action arose under the
Constitution or laws of the United States.
When Federal questions arise in cases
pending in the state courts, those courts are
competent, and it is their duty, to decide
them. *If errors supervene, the remedy by [191]
writ of error is open to the party aggrieved.
Robb
Connolly, 111 U. S. 624, 637, 637, 28 L
ed. 542, 546, 4 Sup. Ct. Rep. 544.

v.

Decree reversed and cause remanded, with a direction to remand to the state court. Costs of this court and of the circuit court to be paid by the appellees and defendants.

a

The fallure of an insolvent debtor to file a voluntary petition in bankruptcy at least five days before a sale of his property under a judgment entered against him upon an irrevocable power of attorney given years before constitutes the suffering or permitting of the creditor to obtain preference, which amounts to an act of bankruptcy under the bankrupt act of July 1, 1898, chap. 541, § 3, though the judgment is entered without the knowledge or consent of the debtor and he is unable to prevent its enforcement in any other way than by filing his petition in bankruptcy.

CERTIFICATE from the United States Circuit Court of Appeals for the Seventh Circuit desiring instructions upon questions arising in a bankruptcy case

rely on in their pleading. The averments brought by Wilson Brothers et al. in the brought no controversy in this regard into District Court of the United States for the court, in respect of which resort might be Western District of Wisconsin against

147

Cassius B. Nelson for the purpose of having him adjudicated a bankrupt. Questions answered in the affirmative.

Statement by Mr. Justice Gray:

[191] *The circuit court of appeals for the seventh circuit certified to this court the fol

lowing statement of facts and questions of

law:

sitting in bankruptcy, to procure an adju-
dication against him as a bankrupt. The [193]
act of bankruptcy therein alleged was in
substance that while insolvent he suffered
and permitted the said Sarah Johnstone,
one of his creditors, to obtain preference
upon his property, through legal proceed-
ings, by the entry of the said judgment and
the levy thereunder upon his stock of goods,
and failed to vacate or discharge the prefer-
ence obtained through such legal proceed-
ings at least five days before the sale of the
property under such judgment and execи-
tion. Upon issue joined, the district court
ruled that the said Nelson had not, by rea-
bankruptcy, and this ruling is before us for
review.

"On February 5, 1885, Cassius B. Nelson executed and delivered to Sarah Johnstone his promissory note in writing for the sum of $8,960, payable 'five years or before after date,' with interest at the rate of 4 per cent per annum until paid. To this note was attached an irrevocable power of attorney, duly executed by the said Nelson under his son of the premises, committed an act of

"The questions of law upon which this court desires the advice and instruction of the Supreme Court are:

hand and seal in the usual form, authorizing any attorney of any court of record in his name to confess judgment thereon after [192]maturity of the note. This note was given for so much money at the time loaned to Nelson, and the interest on the note was paid "1. Whether the said Cassius B. Nelson, from time to time up to November 1, 1898. by failure to file his voluntary petition in Nelson was a trader, and entered into busi- bankruptcy before the sale under such levy, ness as such at the city of Madison, Wiscon- and to procure thereon an adjudication of

sin, soon after the giving of the note, and carried on such business until his stock in trade was levied upon by the sheriff under execution, as hereinafter stated. On November 1, 1898, Nelson, as he well knew, was and had long been insolvent, and thereafter continued to be and is now insolvent, his liabilities largely exceeding his assets.

"On November 21, 1898, Sarah Johnstone caused judgment to be duly entered in the

bankruptcy, or by his failure to pay and discharge the judgment before the sale under such levy, committed an act of bankruptcy, within the meaning of § 3a, subd. (3), of the bankrupt act.

"2. Whether the judgment so entered and the levy of the execution thereon was a preference 'suffered' or 'permitted' by the said Nelson within the meaning of clause (3) of § 3a of the bankrupt law.

"3. Whether the failure of Nelson to vacate and discharge the preference so obtained, if it was one, at least five days before the execution sale, was an act of bank.

Mr. Harrison Musgrave argued the cause, and, with Messrs. Daniel K. Tenney and James M. Flower, filed a brief for appellants:

The three questions certified should be answered in the affirmative.

circuit court of the state of Wisconsin for
the county of Dane against said Nelson upon
the note and warrant of attorney aforesaid
for the sum of $8,975, damages and costs,
being the face of the note and $15 costs. ruptcy."
Upon that judgment execution was imme-
diately thereafter issued out of the court to
the sheriff of that county, who thereunder
and by authority thereof on the same day
levied upon the stock and goods of Nelson,
and thereafter and on December 15, 1898,
sold the same at public auction, and applied
the proceeds thereof, to wit, the sum of
$4,400, upon and in part payment of the
judgment so rendered. This proceeding left
the said Nelson without means to meet any
other of his obligations. The judgment was
so entered and the levy made without the
procurement of Nelson and without his
knowledge or consent. Such judgment was
not subject to attack by Nelson, and could
not have been vacated or discharged by any
legal proceedings which might have been in-
stituted by him in that behalf; nor could
the levy under the execution issued upon
such judgment have been set aside or va-
cated by Nelson, except by his filing his
voluntary petition in bankruptcy ba prior to
the sale, and obtaining an adjudication of
bankruptcy thereunder, or by payment of
the judgment.

"On December 10, 1898, creditors of the said Nelson, of the requisite number and holding debts against him to the requisite amount, filed their petition against the said Nelson in the district court of the United States for the western district of Wisconsin,

Re Reichman, 91 Fed. 624; Re Moyer, 93 Fed. 188; Re Cliffe, 94 Fed. 354; Re Arnold, 94 Fed. 1001; Re Ferguson, 95 Fed. 429; Re Rome Planing Mill, 96 Fed. 812; Parmenter Mfg. Co. v. Stoever, 38 C. C. A. 200, 97 Fed. 330; Re Chapman, 99 Fed. 395; Bear v. Chase, 40 C. C. A. 182, 99 Fed. 920; Re Thomas, 103 Fed. 272; Re Meyers, 1 Am. Bankr. Rep. 1, 1 N. B. N. 207; Collier, Bankruptcy, 3d ed. p. 37; Re Storm, 103 Fed. 618.

The word "preference," as used in the act, has no necessary reference to the intent of the debtor.

Re Richards, 37 C. C. A. 634, 96 Fed. 936; Bear v. Chase, 40 C. C. A. 182, 99 Fed. 920; Re Kenney, 45 С. С. А. 113, 105 Fed. 897.

The payment of a matured account in the course of business is a "transfer" within the meaning of the bankruptcy act, and, if made during insolvency, and within four months of the filing of a petition in bankruptcy, is a preference under § 60a.

Columbus Electric Co. v. Worden, 39 С. С. A. 582, 99 Fed. 400.