contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being thus constituted, have a case which does not arise literally as well as substantially under the law? Take the case of a contract, which is put as the strongest against the bank. When a bank sues, the first question which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue? Has it a right to come, not into this court particularly, but into any court? This depends upon a law of the United States. The next question is, has this being a right to make this particular contract? If this question be decided in the negative, the cause is determined against the plaintiff; and this question, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. * * * The question forms an original ingredient in every cause. Whether it be in fact relied on or not in the defense, it is still a part of the cause, and may be relied upon. The right of the plaintiff to sue cannot depend on the defense which the defendant may choose to set up. His right to sue is anterior to that defense, and must depend on the state of things when the action was brought. The questions which the case involves, then, must determine its character, whether those questions be made in the cause or not." Pages 823, 824.

"It is said that a clear distinction exists between the party and the cause; that the party may originate under a law with which the cause has no connection; and that congress may, with the same propriety, give a naturalized citizen, who is the mere creature of a law, a right to sue in the courts of the United States, as give that right to the bank. This distinction is not denied; and if the act of congress was a simple act of incorporation, and contained nothing more, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being it has made all the faculties and capacities which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the constitution, every act of the bank arises out of this law." Page 827.

If the case of Osborn v. Bank is to be adhered to as a sound exposition of the constitution, there is no escape from the conclusion that these suits against the plaintiffs in error, considering the said plaintiffs as corporations created by and organized under the acts of congress referred to in the several petitions for removal in these cases, were and are suits arising under the laws of the United States. An examination of those acts of congress shows that the corporations now before us, not only derive their existence, but their powers, their functions, their duties, and a large portion of their resources, from those acts, and, by virtue thereof, sustain important relations to the government of the United States.

A question is made in the cases coming from Kansas about the constitution of the company owning and controlling the line of railroad running through that state. The allegations of the petition for removal in the Myers Case (and the others are substantially the same) are: That on February 1, 1880, pursuant to section 16 of the act of congress of July 1, 1862, and section 16 of the act of July 2, 1864, the Kansas Pacific Railway Company, a corporation created by the territorial legislature of Kansas, and organized under the laws of said territory, and the Denver Pacific Railway & Telegraph Company, a corporation created and organized under the laws of the territory of Colorado, both of which companies are mentioned in the said acts of congress, and their roads by said acts made a part of the Pacific Railroad system, were, by agreement, consolidated with the Union Pacific Railroad Company, and said consolidated company assumed and adopted the name of the Union Pacific Rail

way Company, which assumed, took, and thenceforth has had, by virtue of said agreement of consolidation, possession and ownership of all the railroads and other property, real and personal, of said constituent companies; and has operated and managed the same under and by authority of said acts of congress, and is governed and controlled by said acts, and is to all intents and purposes, and in fact, a corporation under the laws of the United States. These allegations, if true, (and they must be taken to be so on the application for reinoval,) show that the present corporation, the Union Pacific Railway Company, which is the corporation sued, and which appears and defends the suits, is a corporation formed and organized under an act of congress. Besides, the legislation of congress in reference to all the companies so consolidated, in the acts of 1862 and 1864, and subsequent acts, all of which is reviewed and commented on in the opinion of this court in Ames v. Kansas, 111 U. S. 449, S. C. 4 SUP. CT. REP. 437, shows that all the said companies, before the said consolidation, had received large donations of land, subsidies, powers, and privileges from congress, and had accepted and were subject to important duties to the United States Government, and were subject to a wide control of said government both in the construction and management of their roads and works; and one of said companies, to-wit, the Union Pacific Railroad Company, was originally incorporated and organized under said acts, and was strictly a corporation of the United States, subject to the acts of congress, and having important duties to perform to the government in the prosecution of its business. The facts that the last-named company is one of the constituent elements of the consolidated company, and that the entire system of roads now in its possession, and under its charge and control, constitutes one of the most comprehensive and important mediums of interstate commerce in the country, and that in all its transactions it is subject to the supervision and control of the government of the United States, are sufficient, it seems to us, to bring the Kansas cases, as well as the other cases, fairly within the principle of the case of Osborn v. Bank. The organization of the company under the consolidation proceedings makes it, at least, a corporation de facto, and the legality of its constitution as a corporation will not be inquired into collaterally. It has, as we know, from the case of Ames v. Kansas, been called in question in a regular way by an information in the nature of a quo warranto, and until that, or some other case directly assailing the validity of the consolidation, is decided, the plaintiff in error must be regarded as a corporation organized under and by virtue of the laws of the United States. And the whole being, capacities, authority, and obligations of the company thus consolidated are so based upon, permeated by, and enveloped in the acts of congress referred to, that it is impracticable, so far as the operations and transactions of the company are concerned, to disentangle those qualities and capacities which have their source and foundation in these acts from those which are derived from state or territorial authority.

With regard to transactions occurring in Nebraska, on the original line of the Union Pacific Railroad Company, it is not disputed that the present company derives all its corporate and other powers from the acts of congress, and is strictly and purely a United States corporation; and the Texas & Pacific Railway Company stands in the same predicament and occupies the same position in Texas, in relation to consolidation with state organizations, as the Union Pacific does in Kansas, and the same considerations apply to both. It was originally incorporated by the name of the Texas Pacific Railroad Company, by act of congress approved March 3, 1871, (16 St. 573,) with power to construct a railroad from Marshall, Texas, to San Diego, on the Pacific coast, and to purchase or consolidate with any railroad company chartered by congressional, state, or territorial authority on the same route. Under this act, and by authority of the legislature of Texas, a consolidation was effected with the Southern Pacific Railroad Company and the Southern Trans-continental Railway Company, corporations of Texas; and by act of congress of May 2,

AT.

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 acts 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 not 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, and 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 v.5s-71

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 incidents." 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, or any 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 for six days, or by 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 several 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, inclusive 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.