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1872, (17 St. 59,) the name of the company was changed to the Texas & Pa. cific Railway Company. The powers, privileges, and advantages given to the company by congress, and the duties imposed upon it, are specified in the actge referred to. It comes clearly within the reason and conclusion applied to the Union Pacific Railway Company. If we are correct, therefore, in the conclusion to which we have come, that suits by and against such corporations are "suits arising under the laws of the United States," then they are, in terms, embraced in the second section of the act of March 3, 1875, and the cases now under consideration were removable to the respective circuit courts of the United States, to which it was sought to remove them, unless any of them were obnoxious to some other objection peculiar to the individual cases.
The point suggested by the supreme court of Texas in the Case of Harwood, that the petition was not verified by oath, would not be tenable if it were raised by the defendant in error, since it was evidently waived by him at the time, having never been raised or mentioned in any way. The same may be said of the delay in filing the petition in the Case of Murphy. See Ayers v. Watson, 113 U. S. 594; S. C., ante, 641.
In the Kansas City Case, of proceedings for widening a street running through the depot grounds of the company at that place, brought here by writ of error to the circuit court of the United States for the Western district of Missouri, it is contendeded by the city of Kansas, the defendant in errorFirst, that the consolidated railway company must be regarded as having the same status as if it were still the Kansas Pacific Railway Company, a corporation of the state of Kansas; secondly, that the case had already been tried once before the mayor and a jury, and an appeal had been taken to the circuit court of Jackson county before the petition for removal was filed, and therefore the application came too late; and, thirdly, that the proceeding was pot a separate one against the railroad company, but a joint one against that company and many other persons, and the appeal of the railway company and other parties carried the whole case to the circuit court of Jackson county to be retried in toto; and a removal of the case by the railway company to the circuit court of the United States must be a removal of the whole case, anda not merely the case of the railway company, which would cast upon the federal court an administrative function in local matters, for which it was incompetent and destitute of jurisdiction.
The first of these points has already received consideration. But it may be added, as bearing on this particular case, that the original Kansas company was authorized by the ninth section of the Pacific Railroad act of July 1, 1862, to extend its road into the state of Missouri; that is, “to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, on the south side thereof, (which is in the state of Missouri,] so as to connect with the Pacific Railroad of Missouri, to the aforesaid point on the one-hundredth meridian of longitude," namely, the point where the Union Pacific was to commence. This provision looked to the establishment of a continuous line of railroad from the Mississippi river, at St. Louis, (the eastern terminus of the Pacific Railroad of Missouri,) to the Pacific ocean. The power assumed by congress in giving this authority to the Kansas company was, undoubtedly, assumed to be within the power “to regulate commerce among the several states;" and, although by an act of the legislature of Missouri, passed in February, 1865, the consent of that state was also given to the extension of the road into its territory, and to its connection with the Missouri road, the fact remains that the company claimed and assumed to exercise its powers under the act of congress, as well as by the consent of the legislature of Missouri. So that the right of appropriating the very property in question in this case was claimed under authority of an act of congress. This circumstance adds strength to the claim of the plaintiff in error that the case was one "arising under the laws of the United States." The second ground of objection, that the cause had been once tried before
the mayor by a jury, and an appeal taken before a petition for removal was filed, and therefore the application was too late, is answered by the reasoning of this court in the case of Boom Co. v. Patterson, 98 U. S. 403, which
was a case very similar in this respect to the present. It was there held that @the preliminary proceedings were in the nature of an inquest to ascertain the value of the property condemned, or sought to be condemned, by the right of eminent domain, and was “not a suit at law in the ordinary sense of those terms,” consequently not "a suit” within the meaning of the removal acts; but that, “when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute of the state, the form of a suit at law, and was thenceforth subject to its ordinary rules and inci. dents." In that case, “the point in issue on the appeal was the compensation to be made to the owner of the land; in other words, the value of the property taken. No other question was open to contestation in the district court.” The court therefore considered the case to be within the rule laid down in Gaines v. Fuentes, 92 U. S. 20, in which it was held that a controversy between citizens of different states is involved in a suit whenever any property or claim of the parties, capable of pecuniary estimation, is the subject of litigation, and is presented by the pleadings for judicial determination. And, in this view, the case of Boom Co. v. Patterson was held to be removable to the federal court. That case, we think, governs the present, so far, at least, as relates to the trial before the mayor, which was in its nature an inquest of valuations and assessments, not having the character of a suit.
A more embarrassing question arises under the third objection raised by the defendant in error, to-wit, that the whole case relating to the widening of the street was carried before the circuit court of Jackson county by the appeal, and must also be carried to the circuit court of the United States in the same condition if the application for a removal is sustained, whereby the latter court will be called upon to exercise administrative functions of a local character to which it is incompetent. To understand the bearing of this objection, it is necessary to inquire-First, the condition of the case in the circuit court of Jackson county on the appeal; and, secondly, the rules which must govern the case on its removal to the federal court, if such a removal should be effected. The condition of the case in the circuit court of Jackson county on the appeal depends upon the statute of Missouri*under which the proceedings were had for widening the street. This statute was an amendment to the city charter of the city of Kansas, passed in 1875. We have carefully examined its provisions. After giving very full directions as to the preliminary proceedings, such as the ordinance for opening or widening a street, the notices to be given, the summoning of jurors, and the duties to be performed by them, the recording of their verdict, etc., the sixth section declares: “In case the city,
defendant to such proceedings, shall feel aggrieved by the verdict of the jury, such party so aggrieved may, within twenty days from the time the verdict of the jury is confirmed by the common council, appeal to the circuit court in and for the county of Jackson, in this state. If the appeal is taken by either party, the same shall be taken and perfected by the filing with the clerk of the city, within the time aforesaid, such an affidavit as is required by law in appealing from the judgment of a justice of the peace. If any appeal is so taken, the clerk of the said city shall, within six days from the taking of such appeal, file a complete transcript of the proceedings, and all papers filed and used in the trial certified by him, with the clerk of the circuit court; and said circuit court shall thereupon become possessed of the cause, and said cause, unless dismissed, shall be tried de novo in said court, and the parties thereto shall have a speedy trial thereof, and to that end said causes shall have precedence over all other causes; and, if necessary to a full determination of any question arising in the said cause, the circuit court shall have power to make and bring in other parties to such proceedings, on service of notice upon them tor six days, or hy publishing a notice to them for the same length of time, in
any daily newspaper printed in said city of Kansas; and the parties so made by either kind of notice, and all persons claiming under them, shall be bound by such proceedings; * * and the judge of said circuit court shall have power, and it shall be his duty, to hold a sitting of his court for the speedy trial thereof, at the court-house in said city, at any time in vacation, and summon a jury before him (unless a jury is waived) for the trial of such appeals only; such trials to be had in all respects, and subject to the same rules: and the same law, as other trials had in the circuit court, and the same record thereof made and kept. The verdict of the jury, or the finding of the circuit judge sitting as a jury, as the case may be, shall conform in all respects to the requirements of section three of this act for the government of the jury mak. ing the first assessment, and the verdict shall have the same force and effect as is provided in regard to said first verdict, and shall be binding on the parties; and the assessments against private property shall be paid in the same time, and until paid bear the same rate of interest, as is above provided; and the amount assessed by the jury against property shall be a lien on the sev. eral parcels of property charged, from the day the ordinance for the improvement takes effect until paid.
On appeal under this section the jury shall consist of six men, freeholders of the city, and be chosen by the judge; and any finding or verdict in that court shall, unless set aside for good cause, be confirmed, and judgment entered thereon that the city have and hold the property sought to be taken for the purposes specified in the ordinance providing for the improvement, and pay therefor the amount assessed against the city, and full compensation assessed therefor; and that the several lots and parcels of private property, assessed to pay compensation by the verdict or finding, stand charged and be bound respectively for the payment of assessments, with interest, as provided in this act.
We have not been furnished by the counsel on either side with reference to any decisions of the Missouri courts giving construction to this section. Whether the direction that the cause shall be tried de novo requires that all the valuations and assessments are to be retried, or only those affecting the appellants, is not expressly stated. The principle of valuation and assessment to be followed by the jury is laid down in the third section of the act, as follows:
“Sec. 3. The jury shall first ascertain the actual damage done to each person or corporation in consequence of the taking of their property for such purposes, without reference to the proposed improvement, as the just compensation to be made therefor; and, second, to pay such compensation, assess against the city the amount of benefit to the city and public generally, inclu-* sive of benefit to any property of the city, and against the several lots and parcels of private property deemed benefited, as determined according to the last section, by the proposed improvement, the balance of such compensation. each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed. Parties interested may submit proof to the jury, and the latter shall examine personally the property to be taken and assessed.
From this it would seem that the balance of damages for property taken, after deducting the amount to be paid by the city, is to be divided and assessed pro rata upon those whose property is benefited, in proportion to the benefit to each. But each piece of property taken is valued by itself, “without reference to the proposed improvement,” and the amount of benefit to each piece of property benefited is ascertained separately without reference to the other pieces benefited. It is only after this has been done that the aggregate amounts are ascertained, and the damages are assessed pro rata against the pieces of property benefited according to the benefit to each, which is the result of a mere arithmetical calculation. In the state circuit court the jury ascertains and finds all these facts, and reports them in one general verdict.
What, then, is the relation in which the railway company, as an appellant, stands towards the city of Kansas in this litigation ? Clearly, it has two distinct issues, or grounds of controversy: First, the value of its property taken for the street; secondly, the amount of benefit which the widening of the street will create to its remaining property, not so taken. It may have a third issue, and, judging from the course of the argument, it has a third issue, still more important to it than either of the others, to-wit, the right of a city to open a street at all across its depot grounds. Now this controversy, involving these three issues, is a distinct controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is*a distinct and separate one, and is capable of being tried distinctly and separately from the others. If the state cir. cuit court had equity powers, it might direct a separate issue for the trial of this controversy by itself. It might try the other appeals without a jury, (the parties waiving a jury,) and try this controversy by a jury.
If this view of the subject is correct, we see no difficulty in removing the controversy between the city of Kansas and the railway company for trial in the circuit court of the United States. The proceedings for widening the street, pending in the state court, may have to await the decision of the case in the federal court; and the result of those proceedings may be materially affected by the decision of that case; but that consideration does not affect the separate and distinct character of the controversy between the city and the railway company, although it might raise a question of proper parties in a pure chancery proceeding as between the city and the company. This controversy is to all intents and purposes “a suit." The indirect effect upon the general proceedings for widening the street which would ensue in case the federal court should determine that the city of Kansas had no right to widen the street in the company's depot grounds, or that the valuation of its property was much too small, or the assessment for benefits against it was much too large, furnishes no good reason for depriving the company of its right to remove its suit into a United States court. We think that the case was removable to that court under the act of March 3, 1875.
This disposes of all the cases now before us, and renders it unnecessary to inquire whether the allegations in the several petitions of removal were, or were not, sutficient to bring the case within the 640th section of the Revised Statutes; or whether this section still remains in force.
The judgments are reversed in all the cases, and the causes will be re manded, with instructions to enter judgment in accordance with this opinion.
WAITE, C. J., dissenting. I am unable to agree to these judgments. In my opinion congress did not intend to give the words “arising under the constitution or laws of the United States," in the act of 1875, the broad meaning they have when used by Chief Justice MARSHALL in the argument of the opinion in Osborn v. Bank of U.S. I do not doubt the power of congress to authorize suits by or against federal corporations to be brought in the courts of the United States. That was decided in Osborn's Case, and with it I have no fault to find. Neither do I doubt that congress did, in the charters under which these corporations exist, authorize suits by or against them to be brought in the courts of the United States as well as in the courts of the states; but I cannot believe that, if the charters had given jurisdiction to the courts of the United States in only a limited class of actions, and had pro vided that in all others the suits must be brought in the courts of the proper state, the act of 1875 would have extended the jurisdiction of the courts of the United States to all suits by or against such corporations when the value of the matter in dispute exceeded $500.
The acts of incorporation made no provision for the removal to the courts of the United States of suits begun in a state court. The act of July 27, 1868, c. 255, § 2, (15 St. 227,) now section 640 of the Revised Statutes, did, however,
give authority for that purpose in suits brought against the company in a state court “upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the constitution, or of any treaty or law of the United States." If all suits by or against, and all defenses by, a federal corporation necessarily arise under the laws of the United States “because the charter of incorporation not only creates it, but gives it every faculty which it possesses,” why require the corporation, when asking for a removal, to cause an oath to be filed with its petition that it has a defense in the suit which arises under the constitution or laws? If, “because the power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter a law of them United States,” every suit by or against, and every defense to such a suit by, a federal corporation must arise under the laws of the United States, why require it to set forth in its petition for removal that its defense does arise under such a law? If such a corporation cannot “have a case which does not arise literally, as well as substantially, under the law,” what is the necessity for saying more than that it is such a corporation?
The act of 1868 (section 640) related specifically to this class of corporations and this class of suits, and it shows distinctly that the words "arising under the laws of the United States" were there used in a restricted sense. no evidence of any intention by congress to use them in any other sense in the act of 1875, when applied to the same kind of suits and to the same kind of corporations.
I am authorized to say that Mr. Justice MILLER unites with me in this dissent.
(114 U. S. 616)
(May 4, 1885.)
The doctrine laid down in Railroad Co. v. Houston, 95 U. 8. 697, cited and applied
to the facts of this case. 2. SamE-CONTRIBUTORY NEGLIGENCE.
Where a person, in a sleigh drawn by one horse, on a wagon road, approaching a crossing of a railroad track, with which he was familiar, could have seen a coming train, during its progress through a distance of 70 rods from the crossing, if he had looked froni a point at any distance within 600 feet from the crossing, and was struck by the train at the crossing and injured, he was guilty of contributory neg. ligence, even though the train was not a regular one, and was running at a high rate of speed, and did not stop at a depot 70 rods from the crossing in the direction from which the train came, and did not blow a whistle or ring a bell between the
depot and the crossing. B. SAME-DIRECTING VERDICT.
On these facts, it was proper for the trial court to direct a verdict for the de fendant. In Error to the Circuit Court of the United States for the District of Minnesota.
John B. Sanborn and S. L. Pierce, for plaintiff in error. Chas. E. Flandrau, for defendant in error.
BLATCHFORD, J. This is an action brought by William R. Schofield against the Chicago, Milwaukee & St. Paul Railway Company, in a state court of Minnesota, and removed by the defendant into the circuit court of the United States for the district of Minnesota. It was tried before a jury, and, after the plaintiff had rested his case, the jury, under the instruction of the court, rendered a verdict for the defendant. The suit was one to recover damages for personal injuries to the plaintiff, caused by his being struck by a train
1 S. C. 8 Fed. Rep. 488.