Lapas attēli
PDF
ePub

The State Court accepted the petition and bond and transferred the suit, but the Circuit Court remanded it on the ground that no real or substantial controversy, properly within the jurisdiction of that court, appeared to be involved. To obtain a review of this action of the Circuit Court the present writ of error has been brought, under the provision of section 5 of the act of 1875, which gives authority for that purpose.

It is well settled that in the courts of the United States the special facts necessary for jurisdiction must in some form appear in the record of every suit, and that the right of removal from the State Courts to the United States Courts is statutory. A suit commenced in a state court must remain there until cause is shown under some act of Congress for its transfer. The record in the State Court, which includes the petition for removal, should be in such a condition when the removal takes place as to show jurisdiction in the court to which it goes. If it is not, and the omission is not afterwards supplied, the suit must be remanded.

The attempt to transfer this cause was made under that part of section 2 of the act of 1875, which provides for the removal of suits "arising under the Constitution or laws of the United States." In the language of Chief Justice Marshall, a case "may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends upon the construction of either," (Cohens vs. Virginia, 6 Wheat., 379,) or when" the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction."(Osborne vs. U. S. Bank, 9 Wheat. 822.)

The question of jurisdiction was submitted to the circuit court upon the record sent from the state court. Upon the pleadings alone it is clear the defendants had not brought themselves within the statute. The complaint simply set forth the ownership by Keys of his property, and the acts of the defendants which, it was claimed, created a private nuisance. No rights were asserted under the Constitution or laws of the United States, and nothing was stated from which it could in any manner be inferred that the defendants sought to justify

the acts complained of by reason of any such authority. The defendants in their demurrer, which set forth specifically the grounds relied upon, presented no question of federal law. The validity of the judgment of the circuit court, therefore, depends upon the sufficiency of the facts set forth in the petition for removal.

For the purposes of the transfer of a cause, the petition for removal which the statute requires, performs the office of pleading. Upon its statements in connection with other parts of the record the courts must act in declaring the law upon the question it presents. It should, therefore, set forth the essential facts, not otherwise appearing in the case, which the law has made conditions precedent to the charge of jurisdiction. If it fails in this it is defective in substance, and must be treated accordingly Thus, in Phoenix Ins. Co. vs. Pechner, at the present term, we have decided that a petition for removal on account of the citizenship of the parties did not divest the state court of its power to proceed, because when takən in connection with the pleadings and process in the cause, it failed to show such citizenship at the time of the commencement of the action as would give the circuit court jurisdiction. And in Amory vs. Amory we held to the same effect in reference to a petition which failed to set forth the personal citizenship of the parties.

The office of pleading is to state facts, not conclusions of law. It is the duty of the court to declare the conclusions of the parties to state the premises.

In this petition the defendants set forth their ownership, by title derived under the laws of the United States, of certain valuable mines that can be only worked by the hydraulic process, which necessarily requires the use of the channels of the river and its tributaries in the manner complained of, and they allege that they claim the right to this use under the provisions of certain specified acts of Congress. They also allege that the action arises under, and that its determination will necessarily involve and require the construction of the laws of the United States specifically enumerated, as well as the pre-emption laws. They state no facts to show the right

they claim or to enable the court to see whether it necessarily depends upon the construction of the statutes.

Certainly an answer or plea, containing only the statements of the petition, would not be sufficient for the presentation of a defence to the action under the provisions of the statutes relied upon. The immunities of the statutes are, in effect, conclusions of law from the existence of peculiar facts. Protection is not afforded to all under all circumstances. In plead

ing the statute, therefore, the facts must be stated which call it into operation. The averment that it is in operation will not be enough, for that is the precise question the court is called upon to determine.

The statutes referred to contain many provisions, but the particular provision relied upon is nowhere indicated. A cause cannot be removed from a State Court simply because, in the progress of the litigation, it may become necessary to give a construction of the Constitution or laws of the United States. The decision of the case must depend upon the construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. That this was the intention of Congress is apparent from section 5 of the Act of 1875, which requires the Circuit Court to dismiss the cause or remand it to the State Court, if it shall appear, “at any time after such suit does not really or substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court."

Before, therefore, a Circuit Court can be required to retain a cause under this jurisdiction it must in some form appear upon the record, by a statement of facts "in legal and logical form," such as is required in good pleading, (1 Chit. Pl., 213,) that the suit is one which "really and substantially involves a dispute or controversy" as to a right which depends upon the construction or effect of the Constitution or some law or treaty of the United States. If these facts sufficiently appear in the pleadings, the petition for removal need not restate them, but if they do not, the omission must be supplied in some form, either by the petition or otherwise. Under the application of

this rule we think that the record in this case is insufficient, and that the Circuit Court did not err in remanding the cause.

The act of 1875 has made some radical changes in the law regulating removals. Important questions of practice are likely to arise under it which, until the statute has been longer in operation, it will not be easy to decide in advance. For the present, therefore, we think it best to confine ourselves to the determination of the precise question presented in any particular case, and not to anticipate any that may arise in the future. Under these circumstances the present case is not to be considered as conclusive upon any question except the one directly involved and decided. The judgment is affirmed.

BRADLEY, J.,-Dissenting Opinion,

The question intended to be raised in this case is, whether the grants made by the United States of placer mines as such, involve the right to discharge the refuse earth and gravel produced by working said mines, called tailings, into the neighboring streams, (in this case Bear river,) inasmuch as the mines cannot be worked except by means of a discharge of the streams of water loaded with such refuse. This question depends upon the construction of the titles given by the United States. When the government determined to sell mining property as such, and placer mines co nomine, did it, or did it not, intend to confer a right of working them in the only way in which they could be worked? It seems to me that the question is clearly raised by the allegations of the petition in this case; and the claim of the right is clearly made. Whether it can be maintained as against the occupants of inferior lands in the valleys which may be injured thereby is another question not now before us. I think the parties were entitled to a removal of the cause.

Recent Decisions.

Supreme Court of the United States.

[October Term, 1877.]

THE UNITED STATES, APPELLENTS, vs. THE NATIONAL BANK OF BOSTON.

Appeal from the Court of Claims.

Mr. Justice SWAYNE delivered the opinion of the Court. Upon analyzing this case as it is presented in the record the facts are found to be few and simple.

Hartwell was cashier of the sub-treasury in Boston. He embezzled a large amount of money belonging to the United States by lending it to Mellen, Ward & Co. As the time for the examination of the funds of the sub-treasury approached, Mellen, Ward & Co. endeavored to tide Hartwell over the crisis and to conceal his guilt and their own by the devices out of which the controversy has arisen. They had sold to the Mercantile National Bank of Boston a large amount of gold certificates, with the understanding that they might buy back the like amount by paying what the bank had paid, and interest at the rate of six per cent. per annum. Carter, one of the firm, arranged with Smith, the cashier of the plaintiff, to buy from the Merchants' Bank gold certificates to the amount of 420,000, and to pay for them with the checks of Mellen, Ward & Co., certified to be good by Smith, as such cashier, and then to deposit the certificates in the sub-treasury, where they were to remain until the ensuing day. A receipt was to be taken from the proper sub-treasury officer. The certificates were bought, paid for, and deposited accordingly. Hartwell received them from Smith, in the presence of Carter, and made out the receipt to Mellen, Ward & Co., or order. Smith inquired why the receipt was made out to them. Carter there

« iepriekšējāTurpināt »