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1, p. 1540), which authorizes the making of such regulations and prebes the punishment for their violation. Motion in Arrest of Judgment. action was begun upon an indictment fled February 2, 1906, charging endants with unlawfully pasturing sheep over the Stanislaus forest without having secured permit. A motion in arrest of judgment was sed. The motion was denied by the court on October 2, 1906, and ! the defendants was fined the sum of $20. The motion in arrest of nt was made' upon the ground that the violation of the regulation tion was not a crime, and that it was beyond the authority of Congress e Secretary of the Interior to make violation of the said regulation able

HAVEN, District Judge. The general reasoning found in the in of the Circuit Court of Appeals for this circuit in the case of rvignes v. United States, 122 Fed. 30, 58 C. C. A. 346, has d in my mind such doubt of the correctness of my prior decision

case of United States v. Peter Camou, filed June 24, 1902 (not ted), that I deem it proper at this time to overrule the motion to dants for an arrest of judgment; and if dissatisfied with this ş, the defendants have the right to bring the question involved e the Circuit Court of Appeals for decision. e motion in arrest of judgment will be denied, and each of the dants fined in the sum of $20.

CITY OF NEW CASTLE V. WESTERN UNION TELEGRAPH CO.

(Circuit Court, W. D, Pennsylvania. March 23, 1907.)

No.

AL OT CAUSES-MOTION TO REMAND-BURDEN OF PROOF.

On a motion to remand a cause to the state court where the amount in ontroversy in the suit is put in issue, the burden of proving that it is ufficient to give the federal court jurisdiction rests on the defendant, and he mere allegation of such fact in the petition for removal is not suffilent as against a sworn denial by the plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Caus8, § 230.)

- Equity. On motion to remand to state court
s. A. Gardner, for complainant.
S. & E. G. Ferguson, for respondent.

WING, District Judge. On May 21, 1906, the plaintiff filed its in equity in the court of common pleas of Lawrence county, Pa., nst the defendant, setting forth that the plaintiff is a city of the d class of Pennsylvania, having full police power and the regula

and control of its streets and highways, and that, in pursuance uch power, it has constructed and established through a small part ts territory, being the closely built-up portions of said city, and that part on which the poles and wires most numerously exist and where the public travel is greatest, a certain underground conduit system, and has, by ordinance duly enacted, required the placing therein of electric wires and cables which heretofore have been suspended on poles along the said streets and highways; that the defendant company has certain lines of poles and wires occupying a portion of the streets of said city in which the conduit system has been established, and after due notice from the authorities to place the said wires within said conduits has refused to do so, and asking that the defendant be required to remove its said line of poles and wires and place said wires in said conduit, and be restrained from maintaining its said aerial line or system on and along the streets and highways where said conduit system has been established. The bill was duly served on the 22d of May, and on the 4th of June the defendant presented its petition to said court, setting forth that the plaintiff is a citizen and resident of the state of Pennsylvania and the defendant a citizen and resident of the state of New York, that the matter in dispute exceeds the sum of $2,000, exclusive of interest and costs, and presenting its bond conditioned for the filing of the record of said case in the Circuit Court of the United States for the Western District of Pennsylvania, and for paying all costs that may be awarded by said court, etc., and praying that the petition and bond be accepted and approved and said cause removed to said Circuit Court, which request was granted by the court, and the record of said cause was thereupon removed into this court.

On September 7, 1906, the plaintiff moved to have the case remanded to the court of common pleas of Lawrence county, Pa., because, inter alia, the matter in dispute between the parties does not exceed the sum of $2,000, exclusive of interest and costs, and because the matter in controversy is not capable of being valued in money, and therefore this court has no jurisdiction. Upon this petition a rule was granted by this court, to which the defendant answered on November 21, 1906, alleging, inter alia, “that the right of this defendent to maintain its poles and wires, and operate the same within the said district of said city of New Castle, is of the value of not less than two thousand dollars," and that "the cost and expense of removing its said poles and wires, and placing the same in the said municipal conduits or subways of said city of New Castle, would exceed the sum of two thousand dollars." Both the motion to remand and the answer to the rule granted thereon are verified by affidavit. The defendant has filed no answer to the bill.

It thus appears that the question before the court is one of jurisdiction, viz., whether the matter in controversy exceeds in value the sum of $2,000, exclusive of interest and costs, or whether it is capable of being valued in money. The petition for removal of the cause having alleged that the matter in controversy does exceed said sum, that the plaintiff and defendant are citizens of different states, and having been made in time, accompanied by proper bond, the court of common pleas of Lawrence county could not do otherwise than accept said petition and approve said bond. But that was a proceeding wholly ex parte. Now, by the motion made here to remand the cause and the reasons assigned in support of that motion, the question of the amount

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roversy in this case is put at issue, and the disposition of this rule s upon whether or not the defendant has here shown that that t does exceed the sum of $2,000, exclusive of interest and Under the authorities the burden of showing this jurisdictional sts upon the defendant, and it has offered no proof in support allegation of the amount in controversy here, but relies wholly the statement in its petition for removal; which statement is g more than the simple allegation necessary to obtain that order, there was no controversy as to the amount involved in the case. atement in its answer to this rule, that its right to maintain ana e its pole line of wires “is of the value of not less than two thouHollars,” is insufficient, even if proved.

question here is really as to the right of the defendant comto maintain its aerial line of poles and wires in the portions of y of New Castle now occupied by it in which the conduit system cen established, and consequently the amount in controversy is determined by the value of that right. The plaintiff is seeking covery against the defendant, has no demand against it for either y or property, but simply asks that it change the character of its aph line from that of poles and wires to the conduit system, and does not seek to deprive the defendant of any of its franchise

in said city, but merely to change and control the manner of
xercise of its rights. If this is a correct statement of the question
ved in this proceeding and of the manner in which the amount in
te is to be ascertained, it is evidently incorrect to determine that
int, as the defendant has endeavored to do in one statement of
nswer, by a calculation of the cost to the defendant company of
ng the change from one system to the other. Indeed, it may be
the conduit system will prove more valuable and less expensive
le defendant company than its present one, as is alleged by the
tiff in the reasons assigned in the motion to remand. But, in any
t, the burden of showing the jurisdictional facts is upon the de-
ant, and it has failed to do more than make the allegation in its
ion aforesaid. Moon on the Removal of Causes, § 201 ; Carson
unham, 121 U. S. 421, 7 Sup. Ct. 1030, 30 L. Ed. 992.
s the matter thus appears, there is considerable doubt as to whether
amount in dispute here is sufficient to give this court jurisdiction,

indeed, whether the amount is capable of anything like correct
nate or ascertainment, and therefore the cause should be remanded
this rule made absolute. Hutchenson v. Bigbee (C. C.) 56 Fed.
; Fitzgerald v. Railway Company (C. C.) 45 Fed. 812; Winne-
is v. Edgington (C. C.) 27 Fed. 324; Huntingdon v. Saunders,
U. S. 318, 16 Sup. Ct. 1120, 41 L. Ed. 174.
Other matters set out in the petition and answer do not appear
tinent to this inquiry, and therefore are not commented upon.
'he rule is made absolute, and the cause remanded.

CITY OF NEW CASTLE V. POSTAL TELEGRAPH-CABLE 00.

(Circuit Court, W. D. Pennsylvania. March 23, 1907.)

No. 9.

REMOVAL OF CAUSES-MOTION TO REMAND-BURDEN OF PROOF.

On a motion to remand a cause to the state court, a mere allegation by defendant in an answer filed to the rule that the case involves a construction of the Constitution or laws of the United States is not sufficient to show jurisdiction in the federal court, without a statement of facts showing how such question can arise, and the nature and character of it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, $ 230.)

In Equity. On motion to remand to state court.
James A. Gardner, for complainant.
B. A. Winternitz and Rodgers, Blakely & Calvert, for respondent.

EWING, District Judge. This case is similar in all respects to that of the City of New Castle v. Western Union Telegraph Company, 152 Fed. 569, in which an opinion has just been filed, except that in the answer on the rule to show cause why the cause should not be remanded the defendant denies that the matter in dispute does not exceed the sum or value of $2,000, exclusive of interest and costs, and avers that a decree granting the relief prayed for by the plaintiff would subject the defendant to expense and damage greatly in excess of the sum of $2,000, exclusive of interest and costs, and that the value of the defendant's rights affected by this suit largely exceeds the sum of $2,000, exclusive of interest and costs; and, in addition, states that the defendant maintains many thousand offices throughout the United States for receiving and transmitting messages, from each and every of which intercommunication is had with each and every other office in the United States, including each and every such Office in the state of Pennsylvania; that the defendant is therefore engaged in interstate commerce, and its poles and wires in the said city of New Castle form a part of the equipment of a through system of telegraph lines over which it transmits messages, not only throughout the United States, but to and from all parts of the civilized world; that by virtue of its compliance with the act of Congress approved July 24, 1866 (14 Stat. 221, c. 230), it is authorized to construct, maintain, and operate its lines of telegraph over and along any of the post roads of the United States, and that by the Act Cong. March 1, 1884, c. 9, § 1, 23 Stat. 3 (U. S. Comp. St. 1901, p. 2708], all public roads and highways kept up and maintained are declared to be post roads, and that the said highways passing in and through the said city of New Castle are post roads within the meaning of the act of Congress aforesaid, and therefore that the matter in dispute in this suit arises under the Constitution and laws of the United States, and for that reason alone the case is within the jurisdiction of this court.

Regarding the allegations as to the amount here in controversy, although stated in somewhat different language from that employed by the Western Union Telegraph Company in the case referred to,

t substantially to the same thing, and rise no higher than n of that jurisdictional fact, without any evidence in supf, and are therefore met by the allegations of the plaintiff ary. What has therefore been said in the case against the nion Telegraph Company is equally applicable here. The s on the defendant and it has not produced the necessary · support its contention. ations as to interstate commerce and its occupation of post nere introduced for the first time, and formed no part of upon which it based its petition for the removal of the cause ourts of Lawrence county, and, moreover, are not supported ts which show in what way any question does arise in this wing any construction of the Constitution or laws of the ites, A mere allegation to that effect, without a statement owing how such question can arise, and the nature and chart, but rather giving only a legal conclusion, is insufficient. hing & Water Company v. Keyes, 96 U. S. 199, 2+ L. Ed. son v. Dunham, 121 U. S. 426, 7 Sup. Ct. 1030, 30 L. Ed.

not appear, therefore, that there is any better cause in this supporting the jurisdiction of this court than in that against ern Union Telegraph Company, and for the reasons above addition to those stated in the opinion filed in the case against ern Union Telegraph Company above referred to, the rule bsolute, and the case is remanded.

GEORGE NASH & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. January 18, 1907.)

No. 4,244. s DUTIES-CLASSIFICATION-SCREW RODS. nstruing the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule

Stat. 159 [U. S. Comp. $t. 1901, p. 1636), for iron rods cold, drawn, olished in any way in addition to the process of hot rolling, held,

it does not include wire screw rods which have been cold rolled to itate their use in screw-making machines, and which have incidentalcquired a polish, but that such articles are dutiable as wire screw ; under paragraph 141, 30 Stat. 162 [U. S. Comp. St. 1901, p. 1640.] CONSTRUCTION-SPECIFIC DESIGNATION–GENERAL PROVISIONS. hen Congress has designated an article by a specific name, and by such ne imposes a duty upon it, general terms in a subsequent act or in a r part of the same act, although sufficiently broad to comprehend such icle, are not applicable. Application for Review of a Decision of the Board of United General Appraisers.

decision below, see G. A. 6,338 (T. D. 27,288), relating to tations at the port of New York. mmerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for the -ters. sgood Nichols, Asst. U. S. Atty.

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