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And, prior to that case, we had disposed a case over which the Federal court has no of the same question in United States v. jurisdiction.f. Lynch, 137 U. S. 280, 34 L. ed. 700, 11 Sup. Ct. Rep. 114. That was a petition for a
[Nos. 9, 10, Original.] writ of mandamus against the Fourth Au. submitted May 14, 1906. Decided Decem. ditor and the Second Comptroller of the
ber 10, 1906. Treasury, to compel them to audit the ac
count of petitioner; what was an officer in PETITION hora..writ. of mandamusta
of the authority was drawn in question. We proceedingso in the Circuit Court of the
the Navy. insisted that by the dis- compel Circuit of the United allowance of petitioner's claim for mileage States for the Eastern Division of the these officers exercised a discretion which Eastern District of Missouri to remand a they did not possess; that this was an in- cause to the Circuit Court of the City of St. valid exercise of an authority under the Louis, from which it was removed. AwardUnited States; and that hence the validity ed. Also a
ETITION a writ of held otherwise, and said:
"The validity of a statute is not drawn United States for the Eastern Division of in question every time rights claimed under the Eastern District of Missouri in a cause such statute are controverted, nor is the alleged to have been removed improperly to validity of an authority, every time an act that court from the Circuit Court of the done by such authority is disputed.
City of St. Louis. Dismissed. “What the relator sought was an order coercing these officers to proceed in a par
Statement by Mr. Chief Justice Fuller: ticular way, and this order the supreme
Abram C. Wisner, a citizen of the state court of the District declined to grant. If of Michigan, commenced an action at law, we were to reverse that judgment upon the on February 17, A. D. 1906, in the circuit ground urged, it would not be for want of court in and for the city of St. Louis and power in the Auditor to audit the account, state of Missouri, against John D. Beardsand in the Comptroller to revise and pass ley, a citizen of the state of Louisiana, by upon it, but because those officers had dis- filing a petition, together with an affidavit, allowed what they ought to have allowed on which that court issued a writ of attachand erroneously construed what needed no ment, in the usual form, directed to the construction. This would not in any de- sheriff of St. Louis. The sheriff returned no gree involve the validity of their author- property found, but that he had garnisheed ity."
the Mississippi Valley Trust Company, a United States ex rel. Steinmetz v. Allen, corporation of Missouri, and also had served 192 U. S. 543, 48 L. ed. 555, 24 Sup. Ct. Rep. Beardsley with summons in the city of St. 416, is not to the contrary, for there the Louis. validity of a rule constituting the authority
Saturday, March 17, A. D. 1906, the garof certain officers in the Patent Office was nishee answered, and on the same day drawn in question.
Beardsley filed his petition to remove the Writ of error dismissed.
action from the state court into the circuit court of the United States for the eastern division of the eastern district of Missouri, on the ground of diversity of citizenship,
together with the bond required in such case. Ex parte ABRAM C. WISNER. An order of removal was thereupon entered
by the state court and the transcript of recRemoval of causes-diverse citizenship-non- ord was filed in the circuit court of the Unitresidence of both parties-consent.
ed States. 1. A suit which, by reason of the non
Monday, March 19, Wisner moved to reresidence of both parties, could not have been brought in the Federal circuit court in mand in these words: the first instance, cannot be removed to that
“Now at this day comes plaintiff, by his court from a state court, under the acts of attorneys, Jones, Jones, & Hocker, and apMarch 3, 1887 (24 Stat. at L. 552, chap. 373), pearing specially for the purposes of this and August 13, 1888 (25 Stat. at L. 433, motion only, saving and reserving any and chap. 866),1 on the ground of diverse citizen- all objections which he has to the manifold ship, at least, where the plaintiff resists such imperfections in the mode, manner, and removal, even if the consent of both parties method of the removal papers, and expresscould confer jurisdiction.* Mandamus--to remand case to state court of this cause, or of the plaintiff therein, re
ly denying that this court has jurisdiction
. 2. Mandamus, rather than prohibition, is the proper remedy where the circuit court spectfully moves the court to reinand this of the United States refuses to remand to cause to the circuit court of the city of St. the state court from which it was removed Louis, from whence it was removed, for the U. S. Comp. St. 1901, p. 508.
*Ed. Note.-For cases in point, see vol. 42, Cent. *Ed. Note.-For cases in point, see vol. 42, Cent.
Dig. Removal of Causes, $ 233. Dig. Removal of Causes, $ 33.
reason that this suit does not involve a | 448, 12 L. ed. 1147, 1150; Stevenson v. Fain, controversy or dispute properly within the 195 U. S. 165, 167, 49 L. ed. 142, 143, 25 Sup. jurisdiction of this court, and that it ap. Ct. Rep. 6). In the latter case we said: pears upon the face of the record herein that “The use of the word 'controversies' as in the plaintiff is a citizen and resident of the contradistinction to the word 'cases,' and state of Michigan and the defendant a citi- the omission of the word 'all' in respect of zen and resident of the state of Louisiana, controversies, left it to Congress to define the and the cause is not one within the original controversies over which the courts it was jurisdiction of this court; hence this court empowered to ordain and establish might cannot acquire jurisdiction by removal.” exercise jurisdiction, and the manner in
The motion was heard and denied April which it was to be done.” 2, 1906, the circuit court referring to Foulk The 1st section of the act of March 3, v. Gray, 120 Fed. 156, and Rome Petroleum 1887 (24 Stat. at L. 522, chap. 373), as cor& Iron Co. v. Hughes Specialty Well Drill-rected by the act of August 13, 1888 (25 ing Co. 130 Fed. 585, as representing the dif- Stat. at L. 433, chap. 866), amended $$ 1, ferent views of the courts below on the ques. 2, and 3 of the act of Congress of March 3, tion involved.
1875 (18 Stat. at L. 470, chap. 137, U. S. On April 23, Wisner applied to this court Comp. Stat. 1901, p. 508), as follows: for leave to file a petition for mandamus as "That the circuit courts of the United well as a petition for prohibition; leave was States shall have original cognizance, congranted, and rules entered, returnable May current with the courts of the several states, 14, 1906, and the cases submitted on the re- of all suits of a civil nature, at common law turns to the rules.
or in equity, where the matter in dispute
exceeds, exclusive of interest and costs, the Messrs. J. J. Darlington, James C. Jones, sum or value of two thousand dollars, and H. S. Mecartney, G. G. B. Drummond, Oliver arising under the Constitution or laws of & Mecartney, and Jones, Jones, & Hocker the United States, or treaties made, or which for petitioner.
shall be made, under their authority, or in Messrs. John M. Moore, Edward C. Eliot, which controversy the United States are and George H. Williams for respondent. plaintiffs or petitioners, or in which there
shall be a controversy between citizens of Mr. Chief Justice Fuller delivered the opin- different states, in which the matter in dision of the court:
pute exceeds, exclusive of interest and costs, By article 3 of the Constitution the judi- the sum or value aforesaid; ... But cial power of the United States was “vested no person shall be arrested in one district in one Supreme Court, and in such inferior | for trial in another in any civil action becourts as the Congress may, from time to fore a circuit or district court; and no civil time, ordain and establish.”
suit shall be brought before either of said And the judicial power was extended “to courts against any person by any original all cases, in law and equity, arising under process or proceeding in any other district this Constitution, the laws of the United than that whereof he is an inhabitant; but States, and treaties made, or which shall where the jurisdiction is founded only on be made, under their authority; to all cases the fact that the action is between citizens affecting ambassadors, other public minis- of different states, suit shall be brought only ters, and consuls; to all cases of admiralty in the district of the residence of either the and maritime jurisdiction; to controversies plaintiff or the defendant; to which the United States shall be a party; “Sec. 2. That any suit of a civil nature, at to controversies between two or more states; law or in equity, arising under the Constitubetween a state and citizens of another tion or laws of the United States, or treatstate; between citizens of different states; ies made, or which shall be made, under between citizens of the same state claiming their authority, of which the circuit courts lands under grants of different states, and of the United States are given original jurisbetween a state or the citizens thereof, and diction by the preceding section, which may foreign states, citizens, or subjects."
now be pending, or which may hereafter be The Supreme Court alone possesses juris- brought, in any state court, may be rediction derived immediately from the Con- moved by the defendant or defendants therestitution, and of which the legislative power in to the circuit court of the United States cannot deprive it (United States v. Hudson, for the proper district. Any other suit of a 7 Cranch, 32, 3 L. ed. 259); but the jurisdic civil nature, at law or in equity, of which tion of the circuit courts depends upon some the circuit courts of the United States are act of Congress (Turner v. Bank of North given jurisdiction by the preceding section America, 4 Dall. 8, 10, 1 L. ed. 718, 719; and which are now pending, or which may McIntire v. Wood, 7 Cranch, 504, 506, 3 L. hereafter be brought, in any state court, ed. 420, 421; Sheldon v. Sill, 8 How. 441, may be removed into the circuit court of the United States for the proper district by the “This question, upon which there has defendant or defendants therein, being non- been a diversity of opinion in the circuit residents of that state. And when, in any courts, can be best determined by a review suit mentioned in this section, there shall of the acts of Congress, and of the decisions be a controversy which is wholly between of this court, regarding the original juriscitizens of different states, and which can diction of the circuit courts of the United be fully determined as between them, then States over suits between citizens of dif- . either one or more of the defendants actual. ferent states. ly interested in such controversy may re- "In carrying out the provision of the Conmove said suit into the circuit court of the stitution which declares that the judicial United States for the proper district. And power of the United States shall extend to where a suit is now pending, or may be controversies 'between citizens of different hereafter brought, in any state court, in states, Congress, by the judiciary act of which there is a controversy between a citi. September 24, 1789, chap. 20, $ 11, conferred zen of the state in which the suit is brought jurisdiction on the circuit court of suits of and a citizen of another state, any defend-a civil nature, at common law or in equity, ant, being such citizen of another state, between a citizen of the state where the may remove such suit into the circuit court suit is brought and a citizen of another of the United States for the proper district, state, and provided that 'no civil suit shall at any time before the trial thereof, when it be brought against an inhabitant of the shall be made to appear to said circuit court United States,' 'in any other district than that, from prejudice or local influence, he that whereof he is an inhabitant, or in which will not be able to obtain justice in such he shall be found at the time of serving state court,
the writ.' 1 Stat. at L. 78, 79." “Whenever any cause shall be removed And, after observations in relation to the from any state court into any circuit court use of the word "inhabitant” in that act, of the United States, and the circuit court and referring to the act of May 4, 1858 (11 shall decide that the cause was improperly Stat. at L. 272, chap. 27), § 1, and the act removed, and order the same to be remanded of March 3, 1875 (18 Stat. at L. 470, chap. to the state court from whence it came, 137, U. S. Comp. Stat. 1901, p. 508), § 1, such remand shall be immediately carried Mr. Justice Gray thus continued: into execution, and no appeal or writ of error "The act of 1887, both in its original form, from the decision of the circuit court so re- and as corrected in 1888, re-enacts the rule manding such cause shall be allowed.” that no civil suit shall be brought against
Section 3, as amended, provided for peti- any person in any other district than that tion and bond for “the removal of such suit whereof he is an inhabitant, but omits the into the circuit court to be held in the dis- clause allowing a defendant to be sued in trict where such suit is pending."
the district where he is found, and adds As it is the nonresident defendant alone this clause: "But where the jurisdiction [of who is authorized to remove, the circuit either] is founded only on the fact that the court for the proper district is evidently action is between citizens of different states, the circuit court of the district of the res- suit shall be brought only in the district of idence of the plaintiff.
the residence of either the plaintiff or the And it is settled that no suit is removable defendant.' 24 Stat. at L. 552, chap. 373; 25 under § 2 unless it be one that plaintiff Stat. at L. 434, chap. 866, U. S. Comp. Stat. could have brought originally in the circuit 1901, p. 508.
1901, p. 508. As has been adjudged by this court. Tennessee v. Union & Planters' court, the last clause is by way of proviso Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. to the next preceding clause, which forbids Ct. Rep. 654; Mexican Nat. R. Co. v. David any suit to be brought in any other district son, 157 U. S. 208, 39 L. ed. 675, 15 Sup. than that whereof the defendant is an inCt. Rep. 563; Cochran Montgomery habitant; and the effect is that 'where the County, 199 U. S. 272, 50 L. ed. 188, 26 Sup. jurisdiction is founded upon any of the Ct. Rep. 58.
causes mentioned in this section, except the In Shaw v. Quincy Min. Co. (Ex parte citizenship of the parties, it must be brought Shaw) 145 U, S. 444, 446, 36 L. ed. 768, 770, in the district of which the defendant is an 12 Sup. Ct. Rep. 935, 936, Mr. Justice Gray, inhabitant; but where the jurisdiction is speaking for the court, in disposing of the founded solely upon the fact that the parties question whether, under g 1, "a corporation are citizens of different states, the suit may incorporated in one state of the Union, and be brought in the district in which either having a usual place of business in another the plaintiff or the defendant resides.' state in which it has not been incorporated, McCormick Harvesting Co. v. Walthers, 134 may be sued in a circuit court of the United U. S. 41, 43, 33 L. ed. 833, 834, 10 Sup. Ct. States held in the latter state, by a citizen Rep. 485. And the general object of this of a different state," said:
act, as appears upon its face, and as has
been often declared by this court, is to equity or in admiralty; probate cases, or contract, not to enlarge, the jurisdiction of cases under special statutes; to particular the circuit courts of the United States.classes of persons; to proceedings in particSmith v. Lyon, 133 U. S. 315, 320, 33 L. ed. ular modes; and so on.” Louisville Trust 635, 637, 10 Sup. Ct. Rep. 303; Re Pennsyl. Co. v. Comingor, 184 U. S. 18, 25, 46 L. ed. vania Co. 137 U. S. 451, 454, 34 L. ed. 738, 413, 416, 22 Sup. Ct. Rep. 293. In Central 740, 11 Sup. Ct. Rep. 141; Fisk v. Henarie, Trust Co. v. McGeorge, 151 U. S. 129, 38 142 U. S. 459, 467, 35 L. ed. 1079, 1082, 12 L. ed. 98, 14 Sup. Ct. Rep. 286, it was asSup. Ct. Rep. 207.
sumed, however, that the requirement that “As to natural persons, therefore, it can- no suit should be brought in any other disnot be doubted that the effect of this act, trict than that of the plaintiff or of the read in the light of earlier acts upon the defendant might be waived, where neither same subject, and of the judicial construc- resided therein, because, in that case, the tion thereof, is that the phrase 'district of nonresident plaintiff had sued in the circuit the residence of a person is equivalent to court and the nonresident defendant had 'district whereof he is an inhabitant,' and answered on the merits, which showed the cannot be construed as giving jurisdiction, consent of both parties, and not unnaturally by reason of citizenship, to a circuit court led to the result announced, while in this held in a state of which neither party is a case there was no such consent. As was citizen, but, on the contrary, restricts the stated by Mr. Justice Brewer, in Kinney v. jurisdiction to the district in which one of Columbia Sav. & L. Asso. 191 U. S. 78, 82, 48 the parties resides, within the state of which L. ed. 103, 105, 24 Sup. Ct. Rep. 30, 32: he is a citizen; and that this act, therefore, “A petition and bond for removal are in the having taken away the alternative, per- nature of process. They constitute the mitted in the earlier acts, of suing a person process by which the case is transferred in the district 'in which he shall be found,' from the state to the Federal court.” When, requires any suit, the jurisdiction of which then, Beardsley filed his petition for removis founded only on its being between citizens al, he sought affirmative relief in another of different states, to be brought in the district than his own. But plaintiff, in restate of which one is a citizen, and in the sisting the application, and moving to redistrict therein of which he is an inhabitant mand, denied the jurisdiction of the circuit and resident."
court. In St. Louis & S. F. R. Co. v. McIn short, the acts of 1887, 1888 restored Bride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. the rule of 1789, as we stated in Cochran v. Ct. Rep. 982, where the plaintiffs were citiMontgomery County, supra.
zens and residents of the western district In the present case neither of the parties of Arkansas, and commenced their action in was a citizen of the state of Missouri, in the circuit court of the United States for which state the suit was brought, and, there the district, and the defendant was a corpofore, it could not have been brought in the ration and citizen of the state of Missouri, circuit court in the first instance.
it was held that, as the defendant appeared Wisner did not, of choice, select the state and pleaded to the merits, he thereby waived court as the forum, since he could not have his right to challenge thereafter the jurissued in the circuit court under the act, be- diction of the court over him, on the ground cause neither he nor Beardsley was a citizen that the suit had been brought in the of Missouri. And the question of jurisdic-wrong district. And there are many other tion relates to the time of commencing the cases to the same effect. suit.
Our conclusion is that the case should But it is contended that Beardsley was have been remanded; and, as the circuit entitled to remove the case to the circuit court had no jurisdiction to proceed, that court, and as, by his petition for removal, mandamus is the proper remedy. he waived the objection so far as he was Mandamus awarded; petition for prohi. personally concerned that he was not sued bition dismissed. in his district, hence that the circuit court obtained jurisdiction over the suit. This Mr. Justice Brewer concurred in the result. does not follow, inasmuch as, in view of the intention of Congress by the act of 1887 to contract the jurisdiction of the circuit courts, and of the limitations imposed there. ILLINOIS CENTRAL RAILROAD COMby, jurisdiction of the suit could not have
PANY, Piff. in Err.,
V. obtained, even with the consent of both
J. U. McKENDREE.
ENDR parties. As we have heretofore remarked: “Jurisdiction as to the subject-matter may Error to state court-Federal question-cerbe limited in various ways as to civil and tificate. criminal cases; cases at common law or in 1. The certificate of a state court that the defendant railway company, in a suit , fectious germs when unloaded, having been to recover damages for the infection of cat- brought from an infected district, in contle because of a violation of the quarantine flict with well-known quarantine laws. regulations promulgated by the Secretary
A general demurrer was interposed by deof Agriculture under cover of the act of
fendant and overruled. February 2, 1903 (32 Stat. at L. 791, chap. 349, U. S. Comp. Stat. Supp. 1905, p. 613),
After an answer of general denial the deinsisted that such statute was unconstitu- fendant filed an amended answer: tional, and that, even if constitutional, did "Further answering herein, the defendant not authorize such regulations or give a says that the claims of the plaintiff herein remedy in damages, removes any doubt as asserted are based upon a certain alleged to whether a Federal question was raised act of Congress of the United States of within the meaning and intent of U. S. Rev. America approved February 2, 1903, entitled Stat. & 709, U. S. Comp. Stat. 1901, p. 'An Act to Enable the Secretary of Agri575, governing writs of error to state courts, where, after a demurrer to the answer of the culture to More Effectually Suppress and railway company setting forth the uncon- Prevent the Spread of Contagious and Institutionality of the law and the action of fectious Diseases of Live Stock, and for the Secretary thereunder had been sustained, Other Purposes, which act is published and verdict and judgment were rendered against contained in volume 32, United States Statthe defendant.*
utes at Large, beginning at page 791, chapCommerce-quarantine regulations.
ter 349, and also in a supplement to the 2. Quarantine regulations promulgated United States Compiled Statutes issued in by the Secretary of Agriculture acting under 1903, by the West Publishing Company, St. cover of the act of February 2, 1903, enti
, tled “An Act to Enable the Secretary of Paul, Minnesota, beginning at page 372 of Agriculture to More Effectually Suppress said volume (U. S. Comp. Stat. Supp. 1905, and Prevent the Spread of Contagious and p. 613), and said claims are further based Infectious Diseases of Live Stock, and for upon certain alleged regulations adopted and Other Purposes," are void as in excess of promulgated by the Secretary of Agriculture the powers conferred by that act, where, on on March 13, 1903, pursuant to the authority their face, they apply as well to intrastate attempted to be conferred upon him by said as to interstate commerce.
alleged act of Congress above mentioned, ap
proved February 2, 1903. [No. 13.]
“The defendant says that said act of Con
gress hereinbefore mentioned, and said reg. Submitted December 14, 1905. Restored to ulations adopted by the Secretary of Agridocket for oral argument December 18, 1905. Suggestion of lack of jurisdiction culture, as hereinbefore stated, are each and submitted April 16, 1906.
Decided De- all of them repugnant to and in contravencember 17, 1906.
tion of the Constitution of the United States
of America, and in excess of the powers of I
lisle County in the State of Kentucky to ture under the Constitution of the United review a judgment in favor of plaintiff in an States, and they are each and all, therefore, action to recover damages from a railway unconstitutional and void, and, under the company for the infection of cattle because Constitution of the United States, this deof a violation of quarantine regulations fendant has the right, privilege, and immupromulgated by the Secretary of Agricul- nity of being exempt from the assertion or ture. Reversed and remanded for further prosecution of any claims against it based proceedings.
upon or arising under such act of Congress
or said regulation, or any of them, and this Statement by Mr. Justice Day:
defendant, as permitted by $ 709 of the ReDefendant in error, plaintiff
plaintiff below, vised Statutes of the United States (U. S. brought an action against the railroad com. Comp. Stat. 1901, p. 575), hereby specialpany as a common carrier operating a rail. ly sets up and claims and pleads in defense road through Carlisle county, Kentucky, of this action the right and privilege and setting forth that the defendant received certain cars of infected cattle and trans- immunity which is secured to it by the Conported them to Arlington, Carlisle county, stitution of the United States, to be exKentucky, where they were unloaded July empt from all suits and prosecutions and all 13, 1903, and placed in stock pens where the claims against it based upon or arising uncattle of the plaintiff, rightfully running der such unconstitutional and void act of loose upon the corūmons, could and did come Congress and regulations adopted or proin contact with the infected cattle, and con- mulgated by the Secretary of Agriculture." tracted Texas cow fever. That the company
A demurrer was filed by the plaintiff to knew or could have known, by the exercise the amended answer. of reasonable care, that the cattle had in- The plaintiff filed an amended petition, the
*Ed. Note. -For cases in point, see vol. 13, Cent. Dig. Courts, $ 1064.