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[Nos. 9, 10, Original.]

Submitted May 14, 1906. Decided Decem

ber 10, 1906.

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.† Lynch, 137 U. S. 280, 34 L. ed. 700, 11 Sup. Ct. Rep. 114. That was a petition for a writ of mandamus against the Fourth Auditor and the Second Comptroller of the Treasury, to compel them to audit the account of petitioner, who was an officer in the Navy. It was insisted that by the disallowance of petitioner's claim for mileage these officers exercised a discretion which they did not possess; that this was an invalid exercise of an authority under the United States; and that hence the validity

of the authority was drawn in question. We

held otherwise, and said:

"The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of an authority, every time an act done by such authority is disputed.

"What the relator sought was an order coercing these officers to proceed in a particular way, and this order the supreme court of the District declined to grant. If we were to reverse that judgment upon the ground urged, it would not be for want of power in the Auditor to audit the account, and in the Comptroller to revise and pass upon it, but because those officers had disallowed what they ought to have allowed and erroneously construed what needed no construction. This would not in any degree involve the validity of their authority."

United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 48 L. ed. 555, 24 Sup. Ct. Rep. 416, is not to the contrary, for there the validity of a rule constituting the authority of certain officers in the Patent Office was drawn in question.

Writ of error dismissed.

PETITION for a writ of mandamus to

compel the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri to remand a cause to the Circuit Court of the City of St. Louis, from which it was removed. Awarded. Also a

PETITION for a writ of prohibition to stay proceedings in the Circuit Court of United States for the Eastern Division of the Eastern District of Missouri in a cause alleged to have been removed improperly to that court from the Circuit Court of the City of St. Louis. Dismissed.

Statement by Mr. Chief Justice Fuller:

Abram C. Wisner, a citizen of the state of Michigan, commenced an action at law, on February 17, A. D. 1906, in the circuit court in and for the city of St. Louis and state of Missouri, against John D. Beardsley, a citizen of the state of Louisiana, by filing a petition, together with an affidavit, on which that court issued a writ of attachment, in the usual form, directed to the sheriff of St. Louis. The sheriff returned no property found, but that he had garnisheed the Mississippi Valley Trust Company, a corporation of Missouri, and also had served Beardsley with summons in the city of St. Louis.

Saturday, March 17, A. D. 1906, the garnishee answered, and on the same day Beardsley filed his petition to remove the 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. 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.

Ex parte ABRAM C. WISNER.

1. A suit which, by reason of the nonresidence of both parties, could not have been brought in the Federal circuit court in the first instance, cannot be removed to that court from a state court, under the acts of March 3, 1887 (24 Stat. at L. 552, chap. 373), and August 13, 1888 (25 Stat. at L. 433, chap. 866),1 on the ground of diverse citizenship, at least, where the plaintiff resists such removal, even if the consent of both parties could confer jurisdiction.*

Mandamus-to remand case to state court.

2. Mandamus, rather than prohibition, is the proper remedy where the circuit court of the United States refuses to remand to the state court from which it was removed

1U. S. Comp. St. 1901, p. 508.

*Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 33.

ed States.

Monday, March 19, Wisner moved to remand in these words:

"Now at this day comes plaintiff, by his attorneys, Jones, Jones, & Hocker, and appearing specially for the purposes of this motion only, saving and reserving any and all objections which he has to the manifold imperfections in the mode, manner, and method of the removal papers, and expressof this cause, or of the plaintiff therein, rely denying that this court has jurisdiction spectfully moves the court to remand this cause to the circuit court of the city of St. Louis, from whence it was removed, for the

Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 233.

reason that this suit does not involve a | controversy or dispute properly within the jurisdiction of this court, and that it appears upon the face of the record herein that the plaintiff is a citizen and resident of the state of Michigan and the defendant a citizen and resident of the state of Louisiana, and the cause is not one within the original jurisdiction of this court; hence this court cannot acquire jurisdiction by removal."

448, 12 L. ed. 1147, 1150; Stevenson v. Fain, 195 U. S. 165, 167, 49 L. ed. 142, 143, 25 Sup. Ct. Rep. 6). In the latter case we said: "The use of the word 'controversies' as in contradistinction to the word 'cases,' and the omission of the word 'all' in respect of controversies, left it to Congress to define the controversies over which the courts it was empowered to ordain and establish might exercise jurisdiction, and the manner in which it was to be done."

The 1st section of the act of March 3, 1887 (24 Stat. at L. 522, chap. 373), as cor

The motion was heard and denied April 2, 1906, the circuit court referring to Foulk v. Gray, 120 Fed. 156, and Rome Petroleum & Iron Co. v. Hughes Specialty Well Drill-rected by the act of August 13, 1888 (25 ing Co. 130 Fed. 585, as representing the different views of the courts below on the question involved.

On April 23, Wisner applied to this court for leave to file a petition for mandamus as well as a petition for prohibition; leave was granted, and rules entered, returnable May 14, 1906, and the cases submitted on the returns to the rules.

Messrs. J. J. Darlington, James C. Jones, H. S. Mecartney, G. G. B. Drummond. Oliver & Mecartney, and Jones, Jones, & Hocker for petitioner.

Messrs. John M. Moore, Edward C. Eliot, and George H. Williams for respondent.

Stat. at L. 433, chap. 866), amended §§ 1, 2, and 3 of the act of Congress of March 3, 1875 (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), as follows:

"That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are 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:

By article 3 of the Constitution the judicial power of the United States was "vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."

And the judicial power was extended "to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens, or subjects."

The Supreme Court alone possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it (United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259); but the jurisdiction of the circuit courts depends upon some act of Congress (Turner v. Bank of North America, 4 Dall. 8, 10, 1 L. ed. 718, 719; McIntire v. Wood, 7 Cranch, 504, 506, 3 L. ed. 420, 421; Sheldon v. Sill, 8 How. 441,

pute exceeds, exclusive of interest and costs, the sum or value aforesaid; . . . But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant;

"Sec. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the

United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court,

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"Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed."

Section 3, as amended, provided for petition and bond for "the removal of such suit into the circuit court to be held in the district where such suit is pending."

As it is the nonresident defendant alone who is authorized to remove, the circuit court for the proper district is evidently the circuit court of the district of the residence of the plaintiff.

And it is settled that no suit is removable under § 2 unless it be one that plaintiff could have brought originally in the circuit court. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Mexican Nat. R. Co. v. Davidson, 157 U. S. 208, 39 L. ed. 675, 15 Sup. Ct. Rep. 563; Cochran V. Montgomery County, 199 U. S. 272, 50 L. ed. 188, 26 Sup. Ct. Rep. 58.

In Shaw v. Quincy Min. Co. (Ex parte Shaw) 145 U. S. 444, 446, 36 L. ed. 768, 770, 12 Sup. Ct. Rep. 935, 936, Mr. Justice Gray, speaking for the court, in disposing of the question whether, under § 1, "a corporation incorporated in one state of the Union, and having a usual place of business in another state in which it has not been incorporated, may be sued in a circuit court of the United States held in the latter state, by a citizen of a different state," said:

"This question, upon which there has been a diversity of opinion in the circuit courts, can be best determined by a review of the acts of Congress, and of the decisions of this court, regarding the original jurisdiction of the circuit courts of the United States over suits between citizens of different states.

"In carrying out the provision of the Constitution which declares that the judicial power of the United States shall extend to controversies between citizens of different states,' Congress, by the judiciary act of September 24, 1789, chap. 20, § 11, conferred jurisdiction on the circuit court of suits of a civil nature, at common law or in equity, between a citizen of the state where the suit is brought and a citizen of another state,' and provided that 'no civil suit shall be brought' 'against an inhabitant of the United States,' 'in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.' 1 Stat. at L. 78, 79."

And, after observations in relation to the use of the word "inhabitant” in that act, and referring to the act of May 4, 1858 (11 Stat. at L. 272, chap. 27), § 1, and the act of March 3, 1875 (18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), § 1, Mr. Justice Gray thus continued:

"The act of 1887, both in its original form, and as corrected in 1888, re-enacts the rule that no civil suit shall be brought against any person in any other district than that whereof he is an inhabitant, but omits the clause allowing a defendant to be sued in the district where he is found, and adds this clause: 'But where the jurisdiction [of either] is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' 24 Stat. at L. 552, chap. 373; 25 Stat. at L. 434, chap. 866, U. S. Comp. Stat. 1901, p. 508. As has been adjudged by this court, the last clause is by way of proviso to the next preceding clause, which forbids any suit to be brought in any other district than that whereof the defendant is an inhabitant; and the effect is that 'where the jurisdiction is founded upon any of the causes mentioned in this section, except the citizenship of the parties, it must be brought in the district of which the defendant is an inhabitant; but where the jurisdiction is founded solely upon the fact that the parties are citizens of different states, the suit may be brought in the district in which either the plaintiff or the defendant resides.' McCormick Harvesting Co. v. Walthers, 134 U. S. 41, 43, 33 L. ed. 833, 834, 10 Sup. Ct. Rep. 485. And the general object of this act, as appears upon its face, and as has

been often declared by this court, is to contract, not to enlarge, the jurisdiction of the circuit courts of the United States. Smith v. Lyon, 133 U. S. 315, 320, 33 L. ed. 635, 637, 10 Sup. Ct. Rep. 303; Re Pennsylvania Co. 137 U. S. 451, 454, 34 L. ed. 738, 740, 11 Sup. Ct. Rep. 141; Fisk v. Henarie, 142 U. S. 459, 467, 35 L. ed. 1079, 1082, 12 Sup. Ct. Rep. 207.

"As to natural persons, therefore, it cannot be doubted that the effect of this act, read in the light of earlier acts upon the same subject, and of the judicial construction thereof, is that the phrase 'district of the residence of' a person is equivalent to 'district whereof he is an inhabitant,' and cannot be construed as giving jurisdiction, by reason of citizenship, to a circuit court held in a state of which neither party is a citizen, but, on the contrary, restricts the jurisdiction to the district in which one of the parties resides, within the state of which he is a citizen; and that this act, therefore, having taken away the alternative, permitted in the earlier acts, of suing a person in the district 'in which he shall be found,' requires any suit, the jurisdiction of which is founded only on its being between citizens of different states, to be brought in the state of which one is a citizen, and in the district therein of which he is an inhabitant and resident."

In short, the acts of 1887, 1888 restored the rule of 1789, as we stated in Cochran v. Montgomery County, supra.

In the present case neither of the parties was a citizen of the state of Missouri, in which state the suit was brought, and, therefore, it could not have been brought in the circuit court in the first instance.

equity or in admiralty; probate cases, or cases under special statutes; to particular classes of persons; to proceedings in particular modes; and so on." Louisville Trust Co. v. Comingor, 184 U. S. 18, 25, 46 L. ed. 413, 416, 22 Sup. Ct. Rep. 293. In Central Trust Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98, 14 Sup. Ct. Rep. 286, it was assumed, however, that the requirement that no suit should be brought in any other district than that of the plaintiff or of the defendant might be waived, where neither resided therein, because, in that case, the nonresident plaintiff had sued in the circuit court and the nonresident defendant had answered on the merits, which showed the consent of both parties, and not unnaturally led to the result announced, while in this case there was no such consent. As was stated by Mr. Justice Brewer, in Kinney v. Columbia Sav. & L. Asso. 191 U. S. 78, 82, 48 L. ed. 103, 105, 24 Sup. Ct. Rep. 30, 32: "A petition and bond for removal are in the nature of process. They constitute the process by which the case is transferred from the state to the Federal court." When, then, Beardsley filed his petition for removal, he sought affirmative relief in another district than his own. But plaintiff, in resisting the application, and moving to remand, denied the jurisdiction of the circuit court. In St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982, where the plaintiffs were citizens and residents of the western district of Arkansas, and commenced their action in the circuit court of the United States for the district, and the defendant was a corporation and citizen of the state of Missouri, it was held that, as the defendant appeared and pleaded to the merits, he thereby waived his right to challenge thereafter the juris

Wisner did not, of choice, select the state court as the forum, since he could not have sued 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 of Missouri. And the question of jurisdiction relates to the time of commencing the suit.

that the suit had been brought in the wrong district. And there are many other cases to the same effect.

Our conclusion is that the case should have been remanded; and, as the circuit court had no jurisdiction to proceed, that mandamus is the proper remedy.

Mandamus awarded; petition for prohibition dismissed.

But it is contended that Beardsley was entitled to remove the case to the circuit court, and as, by his petition for removal, he waived the objection so far as he was personally concerned that he was not sued in his district, hence that the circuit court obtained jurisdiction over the suit. This 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 COM

by, jurisdiction of the suit could not have obtained, even with the consent of both parties. As we have heretofore remarked: "Jurisdiction as to the subject-matter may be limited in various ways as to civil and criminal cases; cases at common law or in

Mr. Justice Brewer concurred in the result.

PANY, Plff. in Err.,

V.

J. U. MCKENDREE.

Error to state court-Federal question-certificate.

1. The certificate of a state court that

A general demurrer was interposed by defendant and overruled.

After an answer of general denial the defendant filed an amended answer:

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 of Agriculture under cover of the act of February 2, 1903 (32 Stat. at L. 791, chap. 349, U. S. Comp. Stat. Supp. 1905, p. 613), insisted that such statute was unconstitutional, and that, even if constitutional, did not authorize such regulations or give a remedy in damages, removes any doubt as to whether a Federal question was raised within the meaning and intent of U. S. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575, governing writs of error to state courts, where, after a demurrer to the answer of the railway company setting forth the unconstitutionality of the law and the action of the Secretary thereunder had been sustained, verdict and judgment were rendered against the defendant.*

Commerce-quarantine regulations.

2. Quarantine regulations promulgated by the Secretary of Agriculture acting under cover of the act of February 2, 1903, entitled "An Act to Enable the Secretary of Agriculture to More Effectually Suppress and Prevent the Spread of Contagious and Infectious Diseases of Live Stock, and for Other Purposes," are void as in excess of the powers conferred by that act, where, on their face, they apply as well to intrastate

as to interstate commerce.

[No. 13.]

Submitted December 14, 1905. Restored to docket for oral argument December 18, 1905. Suggestion of lack of jurisdiction submitted April 16, 1906. Decided December 17, 1906.

"Further answering herein, the defendant says that the claims of the plaintiff herein asserted are based upon a certain alleged act of Congress of the United States of America approved February 2, 1903, entitled An Act to Enable the Secretary of Agriculture to More Effectually Suppress and Prevent the Spread of Contagious and Infectious Diseases of Live Stock, and for Other Purposes,' which act is published and contained in volume 32, United States Statutes at Large, beginning at page 791, chapter 349, and also in a supplement to the United States Compiled Statutes issued in 1903, by the West Publishing Company, St. Paul, Minnesota, beginning at page 372 of said volume (U. S. Comp. Stat. Supp. 1905, p. 613), and said claims are further based upon certain alleged regulations adopted and promulgated by the Secretary of Agriculture on March 13, 1903, pursuant to the authority attempted to be conferred upon him by said alleged act of Congress above mentioned, approved February 2, 1903.

"The defendant says that said act of Congress herein before mentioned, and said regulations adopted by the Secretary of Agriculture, as hereinbefore stated, are each and all of them repugnant to and in contraven

tion of the Constitution of the United States of America, and in excess of the powers of

IN ERROR to the Circuit Court of Car-Congress and of the Secretary of Agricul

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 proceedings.

prosecution of any claims against it based 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 of this action the right and privilege and certain cars of infected cattle and trans-immunity which is secured to it by the Conported them to Arlington, Carlisle county, Kentucky, where they were unloaded July 13, 1903, and placed in stock pens where the cattle of the plaintiff, rightfully running loose upon the commons, could and did come in contact with the infected cattle, and contracted Texas cow fever. That the company knew or could have known, by the exercise of reasonable care, that the cattle had in

stitution of the United States, to be exempt from all suits and prosecutions and all claims against it based upon or arising under such unconstitutional and void act of Congress and regulations adopted or promulgated by the Secretary of Agriculture." A demurrer was filed by the plaintiff to the amended answer.

The plaintiff filed an amended petition, the

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1064.

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