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disclaimer as to “vested” rights. Having denied the vested rights, the disclaimer becomes but another way by which defendant asserts title.

The proposition is untenable that the city of Los Angeles, even through its common council, could disclaim, deny or in any way affect the validity of a legislative enactment. No power outside of a judicial tribunal is clothed with any such authority. It would be a dangerous doctrine to establish in this country, to hold that the exercise of powers by the legislature of a State, or the effect of its enactments, can be so revised and annulled by a party to a suit.

No authority is anywhere shown as coming from the city council, authorizing or empowering its counsel, appearing in this case, to make any such disclaimer as is attempted to be made in the answer.

The acts, ordinances and charters in favor of defendant, alleged in the bill, impair the obligation of the contracts made through and by the several patents of the United States to the predecessors in title of complainants.

The complainants are subjected to the deprivation of property rights, privileges and immunities secured to them by the Constitution and laws of the United States, under color of the statutes of the State of California, referred to in the bill, and in violation of section 1979, Title XXIV of the Revised Statutes.

Mr. W. B. Matthews and Mr. J. R. Scott, with whom Mr. Henry T. Lee was on the brief, for appellee:

As the requisite diversity of citizenship does not exist, the court has no jurisdiction of this suit unless it is one arising under the Constitution, laws or treaties of the United States.

A case arises under the Constitution, a law or a treaty of the United States, only when its correct decision depends upon the construction of the Constitution or of such law or treaty. Cohens v. Virginia, 6 Wheat. 379; Osborne v. Bank of the United States, 9 Wheat. 822; Tennessee v. Davis, 100 U. S. 261;

Argument for Appellee.

202 U. S.

Bankers' Casualty Co. v. Minn., St. P. &c. Ry., 192 U. S. 371, 381; New Orleans v. Benjamin, 153 U. S. 411.

The jurisdiction of the court must be made to appear from complainants' statement of their own claims, and not from their statement of the nature of the defendant's claim.

While the appellants, in the prayer of the bill, ask for a decree quieting their title to the lands described in the bill, it is evident that they did not intend by their pleading to state a cause of action to quiet title under the old chancery practice. See Boston &c. Mining Co. v. Montana Ore Co., 188 U. S. 632.

It is apparent that this bill was intended to be framed under section 738, Code of Civil Procedure of California. This statute is similar to statutes in many other States, upon the same subject, and it has the effect of enlarging the ancient jurisdiction of courts of equity in respect to suits to quiet title. Wehrman v. Conklin, 155 U. S. 314, 325. These enlarged equitable rights are administered in Federal courts, so far as they do not conflict with any provision of the Constitution or with the statutes of the United States. Broderick's Will, 21 Wall. 503; Holland v. Challen, 110 U. S. 15, 26; United States v. Wilson, 118 U. S. 86; Frost v. Spitley, 110 U. S. 557.

Section 738 of the Code of Civil Procedure of California, was copied from the old Practice Act of that State, Laws Cal. 1851, pp. 92, 93, in reference to which the Supreme Court of California, in the case of Head v. Fordyce, 17 California, 151, said:

“The act was intended to embrace every description of claim whereby the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion of an outstanding title, already held, or to grow out of the adverse pretension."

The allegations of the bill, that the adverse claims of the city to the waters of the Los Angeles river, and the waters in the lands of the complainants, are based upon an erroneous construction of the treaty of Guadalupe Hidalgo, etc., are un

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necessary to a statement of appellants' case in a suit to quiet title to such property under the enlarged equitable jurisdiction of the Circuit Court. These allegations are plainly intended to raise a Federal question where none would otherwise appear, and they are, therefore, improper. Tennessee v. Union & Planters' Bank, 152 U. S. 454; Boston &c. Mining Co. v. Montana Ore Co., 188 U. S. 632; Arkansas v. Kansas & Texas Coal Co, 183 U. S. 185; Florida Central &c. Railroad v. Bell, 176 U. S. 321.

The bill discloses an entire misconception, on the part of the appellants, of the nature and purpose of a suit to remove a cloud, in two particulars: first, such a suit is aimed at an instrument or record and not at mere threats, claims, or pretensions; and, second, it is not available for the purpose of having a statute canceled, or adjudged to be void. Castro v. Barry, 79 California, 443, 446; Pixley v. Huggins, 15 California, 127; Parker v. Shannon, 121 Illinois, 452; Burr v. Hunt, 18 California, 303; Hannewinkle v. Georgetown, 15 Wall. 547.

It is manifest that, by the force of the terms used, a statute, which is alleged to be unconstitutional, cannot, at the same time, be alleged to constitute a cloud upon a title. If it is unconstitutional, it is a nullity. An unconstitutional law is void and is no law. Siebold's Case, 100 U. S. 376. This is a general rule of equity in suits to remove a cloud on a title and it is embodied in sections 3412 and 3413, of the Civil Code of California, which provide substantially that where an instrument is void on its face or upon the face of another instrument which is necessary to the use of the former in evidence, it is not to be deemed capable of creating a cloud. Williams v. Corcoran, 46 California, 553. So in this case the statutes and charters which are declared in the bill to be obnoxious to the Constitution of the United States, if they are subject to that objection, are void on their face, and therefore do not constitute a cloud on the title of appellant.

The question of the repugnancy of the acts of the legislature

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and the charters of the city to the Federal Constitution is primarily for the state courts.

The question of the repugnancy of these acts or charters to the impairment clause or the deprivation clause of the Constitution, does not actually or necessarily arise under the allegations of the bill. The judicial power extends to all cases in law or equity, arising under the Constitution, but these are cases actually, and not potentially, arising, and jurisdiction cannot be assumed on mere hypothesis. New Orleans v. Benjamin, 153 U. S. 411, 424; Defiance Water Company v. Defiance, 191 U. S. 184.

Section 1979, Title XXIV, Revised Statutes of the United States, has no application to suits of this nature. Holt v. Indiana Manufacturing Company, 176 U. S. 68.

The fact that the United States, in issuing patents to the predecessors of the appellants, under the act of March 3, 1851, did not pretend that it was the owner of such lands, is shown by the provisions contained in the act, that patents issued thereunder shall be “conclusive between the United States and said claimants only, and shall not affect the interests of third persons.” The act is not drawn in question and made the subject of dispute merely because adverse claims are made to rights claimed thereunder. Cook County v. Calumet & C. Canal & D. Co., 138 U. S. 653; Blackburn v. Portland Gold Mining Co., 175 U. S. 571; DeLamar's Nevada Gold Min. Co. v. Nesbitt, 175 U.S. 523.

The disclaimers contained in the answer effectually remove any possible ground of Federal jurisdiction. Crystal Springs Land & Water Co. v. Los Angeles, 177 U. S. 169; Boston &c. Mining Co. v. Montana Ore Co., supra.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

There being no diversity of citizenship, the jurisdiction of the Circuit Court could only be maintained upon the ground

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that the suit arose under the Constitution or laws or treaties of the United States, and a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution or some law or treaty of the United States, upon the determination of which the result depends. And this must appear from the plaintiff's statement of his own claim, and cannot be aided by allegations as to the defenses which might be interposed.

Complainants prayed for a decree quieting their title to the lands described in the bill, but the averments did not bring the case within the classes of bills of peace or to quiet title, recognized by the usual chancery practice as succinctly stated in Boston &c. Mining Company v. Montana Ore Company, 188 U. S. 632. It was apparently framed under section 738 of the California Code of Civil Procedure, providing that “an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” This statute enlarged the ancient jurisdiction of courts of equity in respect of suits to quiet title, but, the equitable rights themselves remaining, the enlargement thereof may be administered by the Circuit Courts of the United States as well as by the courts of the State. Broderick's Will, 21 Wall. 503; Holland v. Challen, 110 U. S. 15; Gormley v. Clark, 134 U. S. 338, 348.

It seems, and it has often been held by the Supreme Court of California, that in an action under this section it is not necessary that the complaint should allege the nature of the estate or interest claimed by the defendant. Head v. Fordyce, 17 California, 149, 151; Castro v. Barry, 79 California, 443; Mining Company v. Mining Company, 83 California, 589.

We are dealing with the question of the jurisdiction of the Circuit Court, and the general rule as to that is thus stated by Mr. Justice Peckham, speaking for the court, in Boston Mining Company v. Montana Ore Company, 188 U. S. 632:

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