Code, but it cannot be superseded, and in the mean time the suit itself remains in the lower court. The court of common pleas commenced on the 22d of April, and the answer of Butler was due on the third day of the term, but he did not wait, and filed his petition for the removal to this court on the 22d of April, the first day of the term, and executed bond. Subsequently he filed a transcript of the then record in this court. The plaintiff appeared in this court, and on May 1st moved to remand the case, which was done for the reason already stated. Subsequently, on the 3d day of May, and during the same term of the Knox county common pleas court, the defendant Butler filed in that court the order of this court remanding the case, and tendered and filed an amended petition for the removal of the case to this court. The learned counsel insists that, as the amended petition was not filed until after the answer was due in the state court, it is too late, but the answer to this suggestion is that, being filed as an amended petition, it related back to the time when the original petition was filed. He also insists that, Butler having filed a transcript in this court under the petition and bond which was filed April 22, 1889, he cannot file a transcript of the same record with the addition of his amended petition filed May 3d for removal, and he refers the court to Railroad Co. v. McLean, 108 U. S. 215, 2 Sup. Ct. Rep. 498, and Johnston v. Donvan, 30 Fed. Rep. 395, as sustaining this view. The latter case is distinctly in point, but I think the learned judge who decided that case failed to recognize the distinction which we think exists between an order remanding a case to the state court because the circuit court has never had jurisdiction, and that where the order remanding to the state court is made after the jurisdiction of the state court has ceased, and the jurisdiction of the federal court has attached. It is true that under the act of March, 1875, an order remanding or refusing to remand to the state court was a final order, and could be taken to supreme court by writ of error, and that such an order is now a final order under the act of March, 1887, and would, after execution, be beyond the control of the circuit court. Yet I do not think a petition for removal from a state court which does not allege the grounds which are essential to give the federal court jurisdiction and divest the jurisdiction of a state court would be a bar to another petition, which does allege all the jurisdictional facts, any more than the dismissal of a suit by the circuit court because the petition did not state the facts necessary to give the court jurisdiction would be a bar to another suit for the same cause of action in which the necessary allegations are made. The supreme court has, in Railroad Co. v. McLean, declared that if a case has been removed from the state court, and the jurisdiction is in the circuit court, an order remanding the case to the state court will bar another removal on the same transcript. But it has not declared that, if the case is remanded because the circuit court has never had jurisdiction, such an order would prevent a legal removal thereafter. The court says:

"Assuming that the second petition for removal was filed before or at the term at which the cause could have been tried in the state court, we are of

opinion that a party is not entitled, under existing laws, to file a second petition for the removal upon the same grounds, where upon the first removal by the same party the federal court declined to proceed, and remanded the suit because of his failure to file the required copy within the time fixed by the statute. When the circuit court first remanded the cause, the order to that effect not being superseded, the state court was reinvested with jurisdiction, which could not be defeated by another removal upon the same grounds, and by the same party. A different construction of the statute, it can be readily seen, might work injurious delays in the preparation and trial of causes."

It will be seen by a reference to the facts of this case that the removal from the state court was complete, and the jurisdiction of the circuit court had attached by reason of the first petition; but in the case at bar there had not been a removal from the state court, nor had the jurisdiction of this court attached.

It is insisted that because the defendant, Butler, prayed an appeal to the Kentucky court of appeals from the order of the judge made April 9, 1889, appointing a receiver, which appeal was granted, he could not thereafter file in the Knox court of common pleas a petition for removal to this court, and we are referred to the case of Railroad Co. v. Railroad Co., 29 Fed. Rep. 337, to sustain this view. That case arose under the act of 1875, and the court indicated the opinion that the motion for an injunction which was granted in that case was a trial within the meaning of that act, and therefore the petition for removal from the state court came too late. The court commented upon the fact that the order granting an injunction had been appealed from and superseded, and that before this was done the party had an opportunity of filing his petition for removal in the state court. In the case at bar Butler could not have filed his petition until the term of the state court, which commenced on the 22d of April, which was the day upon which he did file it. The order of the judge of the state court, appointing a receiver, was appealable, but it could not be superseded. The appeal, though prayed and granted, does not appear to have been perfected by the filing of the transcript there, and we think the effect of the petition to remove to this court was an abandonment of the appeal by Butler. We are of the opinion that Butler's motions to set aside the order of May 1, 1889, and to file an amended petition of removal in this court, should be overruled, and that his motion to file the transcript from the Knox county common pleas court should be sustained, and it is so ordered.

HOOVER v. CRAWFORD COUNTY.

(Circuit Court, W. D. Arkansas. June 18, 1889.)

FEDERAL COURTS-JURISDICTION-ACTIONS AGAINST COUNTIES.

If a legislature of a state permits a county to contract and issue obligations as evidences of indebtedness to citizens of other states, such legislature cannot prevent such citizens from bringing suits in a federal court in the state of the county by a law which provides that counties cannot be sued, for the laws of the state permit the counties to create on behalf of the citizens of

other states a property right as against the counties, and this gives the right to such citizens to sue the counties in the federal courts. And such right is one which is beyond the control of any legislative action of the state, and can be regulated alone by the constitution and laws of the United States. (Syllabus by the Court.)

At Law.

Suit by J. W. Hoover against the county of Crawford, on 59 pieces of county scrip of different values, and of the aggregate value of $3,000. All of said scrip bears date July 12, 1887. Defendant demurs to the complaint "because it fails to state facts sufficient to constitute a cause of action."

Du Val & Cravens, for plaintiff.

Lee Sandels & Warner, for defendant.

PARKER, J. It is claimed in this case that the defendant county cannot be sued because its suable character has been taken away, unless the right is asserted in its own court, by the act of the legislature of Arkansas of February 27, 1879. At that date the legislature passed the following act:

"Section 1. That sections 937, 938, 939, 944, 945, 946, 947, 948, 949, and 4516 of Gantt's Digest of the Statutes of Arkansas, and all laws and parts of laws making counties corporations, and authorizing them to sue and be sued as such, be, and they and each and every of them are hereby, repealed. Sec. 2. That hereafter all persons having demands against any county shall present the same, duly verified according to law, to the county court of said county for allowance or rejection. From the order of the county court thereon appeals may be prosecuted, as now provided by law. If on any such appeal the judgment of the county court is reversed, the judgment and reversal shall be certified by the court rendering the same to the county court, and the county court shall thereupon enter the judgment of the superior court as its own. Sec. 3. When any county has any demand against any persons or corporations, suit thereon may be brought in the name of the state for the use of the county. * *"

The sections of the general law of the state referred to in the act set out above as being repealed by said act provide that the counties may sue and be sued, and also for the method of getting service on them. The purpose of the legislature evidently was to take away from the federal courts the right to entertain a suit against the county in the state. We have a right to infer this from the nature of the act passed by the legislature of the state, and from the existing condition of things at the time the act was passed. Previous to that time many suits had been brought in the federal courts in the state against counties upon evidences of indebtedness similar in character to these sued on in this suit. Judgments had been obtained, and payment compelled, by such courts. have never heard that any act of intentional wrong or injustice had been done by these courts. They had simply enforced the collection of honest debts. This act seems to me to be but the exhibition of a foolish and futile purpose founded on an unwarrantable and unreasonable prejudice against federal courts, which are as much the courts of the whole people as the courts of the counties or of the circuits in a state. Can

the purpose of this act be accomplished by the legislature of the state? The legislature has not taken away the whole character of the county as such. Under the general laws of the state it has a right to make contracts, and to issue obligations similar to the ones sued on here. To this extent the legislature has left the county with a function characteristic of a corporate existence. For this purpose it is a civil division of a state, and, consequently, to this extent a county. It is an axiom of the law of this country that the legal jurisdiction of the United States courts comes from the constitution and laws of the United States; and under our system it can come from no other source. And when the conditions exist which under the constitution and laws of the United States give jurisdiction, the same is free from the touch of any legislative body of a state as the legal jurisdiction of the state courts is free from the touch of congress. I think it enough for this case to find that the defendant county had a right to contract with a citizen of another state. This right to contract implies liability to suit by a citizen of another state, and this gives jurisdiction to the federal courts. The supreme court of the United States, in Cowles v. Mercer Co., 7 Wall. 118, which is a case analogous in principle to this, said:

"It is enough for this case that we find the board of supervisors to be a corporation authorized to contract for the county. The power to contract with citizens of other states implies liability to suit by citizens of other states, and no statute limitation of suability can defeat a jurisdiction given by the constitution."

This seems to be conclusive of this question. In Payne v. Hook, Id. 430, the supreme court says:

"We have repeatedly held that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.'"

The laws of the state give the county the power to create on behalf of the plaintiff a property right as against it. In Railway Co. v. Whitton, 13 Wall. 270, the supreme court of the United States decides it is a correct principle that "whenever a general rule as to property or personal rights or injuries to either is established by state legislation, its enforcement by a federal court in a case between proper parties is a matter of course, and the jurisdiction in such case is not subject to state limitation." In Bank v. Jolly's Adm'rs, 18 How. 506, the supreme court of the United States declared that

"The law of a state limiting the remedies of its citizens in its own courts cannot be applied to prevent the citizens of other states from suing in the courts of the United States in that state for the recovery of any property or money there, to which they may be legally or equitably entitled."

The doctrine of the above cases has been declared by the supreme court as long ago as the case of Suydam v. Broadnax, 14 Pet. 67. In Hyde v. Stone, 20 How. 175, the supreme court declares:

"This court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot

be impaired by the laws of the states which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases state laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the states, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction."

The principle of all these cases has again but recently been reiterated by the supreme court in the case of Ellis v. Davis, 109 U. S. 498, 3 Sup. Ct. Rep. 327. Indeed, there is not and cannot be any dissent from it. Then, as long as the legislature of the state leaves the counties with the power to make contracts with citizens of other states, to create thereby a property right in favor of such citizens, the right to sue the counties in the federal courts exists.

It has been suggested that this scrip was taken by plaintiff subject to all the laws of the state. This is true, but he takes it subject to all valid laws. If a so-called "law" is invalid under that which is the supreme law of the land, the constitution of the United States,-then such statute is not a law, but only a simple declaration of a law-making power that is a nullity. I regard the point discussed at ove as the only one in the case; and, in the face of the settled law, the demurrer in this case must be overruled.

GLENN v. ABELL.

(Circuit Court, D. South Carolina. May 31, 1889.)

BANKRUPTCY-PROVABLE DEBTS.

The liability of a subscriber to corporate stock for his unpaid subscription is a provable debt in bankruptcy against the estate of such subscriber, though no assessment has yet been made, under Rev. St. U. S. § 5067, providing that all debts due and payable from the bankrupt at the commencement of proceedings or then existing and payable in the future shall be provable debts.

At Law.

Rutledge & Rutledge, for plaintiff.

Wells & Orr, for defendant.

SIMONTON, J. This is an action at law. Both parties by stipulation in writing waive a jury and submit all the issues to the court.

FINDINGS OF FACT.

The National Express & Transportation Company was a corporation created by an act of the state of Virginia, December 12, 1865. Its capital stock was fixed at $5,000,000, with the privilege of increasing it to $10,000,000. The shares were fixed at $100 each. mence business when one-third of its shares were subscribed for, and It could com