public is interested. But, notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognisance." We understand the meaning of this language to be substantially this: That the right of eminent domain, or of appropriating private. property to public use, is a sovereign right, vested in the state itself, acting through its legislature; that the state may delegate this right to railway and other corporations, as it has done in this state, and may impose upon the exercise of the right such conditions as it chooses, with reference to the manner in which the application shall be made, the necessity for the appropriation of any particular lands. determined, and their value ascertained, and when the court observes that the necessity of appropriating any particular property is not a subject of judicial cognisance, it means simply that it is not necessarily a subject of judicial cognisance. The legislature may seize upon and appropriate directly a piece of private property upon paying the owner its value, or it may authorize a corporation to do this by an appeal to its judicial tribunals. The court itself has no right to appropriate property; but in carrying out the will of the legislature, and in making the proper inquiries as to the necessity of the appropriation and the value of the lands, it is exercising judicial power. "If that inquiry take the form of a proceeding before the courts between parties, the owners of the land on the one side, and the company seeking the appropriation on the other, there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the state." In the Minnesota case, as reported in 3 Dill. 465, it appears that the boom company was authorized by a special act to condemn the land necessary to its business, while in this state. the same power is conferred by a general act upon all railroad companies. There is, however, no practical difference in the nature of the power vested in the courts in each case. It is true, there are some expressions in the cases of Toledo, &c., Ry. Co. v. Dunlap, 47 Mich. 466, 452, and Port Huron, &c., Ry. Co. v. Voorheis, 50 Mich. 506, which indicate that, in the opinion of the Supreme Court, these proceedings to condemn lands are not in themselves, and never have been, regarded as judicial proceedings, because the legislature might, and sometimes does, authorize such proceedings to be carried on before highway commis sioners or other non-judicial bodies, and because, even when acting by appointment from a court of justice, the jury or commissioners are judges of the law as well as of the facts. But Mr. Justice CAMPBELL afterwards qualifies this remark to a certain extent by observing that "they are not judicial proceedings in the ordinary sense;" a comment in which we entirely concur. We understand, however, that whenever a court of justice is called upon to determine or adjust the rights of two or more parties standing adversely to each other, the court is acting in a judicial capacity, whether the decision of the question presented lies with a judge, or a jury, commissioners or referees selected by the court. Especially is this the case when such proceedings are subject to review by an appellate tribunal. In In re New York Cent. Rd., 56 N. Y. 407, 409, the Court of Appeals held that the power of determining what lands were necessary to be appropriated to the use of railways was a judicial question, and, when controverted, the facts must obviously, in some form, be laid before the court to enable it to decide. So, in Warren v. Wisconsin Rd., 6 Biss. 425, which was also a proceeding to condemn land for railway purposes, a motion was made to remand, on the ground that, as it was a proceeding by the state in the exercise of its right of eminent domain, the suit was to be regarded as substantially a suit against the state, of which the federal court had no jurisdiction. The motion, however, was denied; the court holding that the state had no interest in the controversy, and that, although it was a special proceeding, it was a suit within the meaning of removal acts. In Railway Co. v. Whitton's Adm'r., 13 Wall. 270, the Supreme Court holds that when a general rule as to property, or personal right or injuries to either, is established by state legislation, its enforcement by the federal courts in a case between proper parties is a matter of course, and the jurisdiction of the court in such case is not subject to state limitation. In Weston v. City Council of Charleston, 2 Pet. 449, it was said that the term "suit" was certainly a very comprehensive one, and was understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him. But we think this point is also covered by the case of Kohl v. United States, 91 U. S. 367, in which the Circuit Court was sustained in assuming jurisdiction of a proceeding to enforce the right of eminent domain in favor of the United States, to condemn lands for a government building, although there was no statute authorizing the proceeding. That it was a suit was said to admit of no question. If proceedings to condemn be a suit, then the conduct and determination of such suit must be an exercise of judicial power. But conceding that if the only question in this case were the amount of damages to be paid by the railroad company, the jurisdiction of this court would be sustained by the authorities above cited, it is insisted that these cases are inapplicable, because by the statute of this state the jury or commissioners must pass upon the question of the necessity for taking the property, as well as the amount of damages to be awarded. But we think that in this particular counsel overlook the distinction between the power to condemn, which confessedly resides in the state, and proceedings to condemn, which the state has delegated to its courts. The proceeding is certainly not deprived of its character as a suit by reason of its taking cognisance of this additional question; and if it be a suit, the right of removal attaches. Wherever a right is given by the law of a state, and the courts of such state are invested with the power of enforcing such right, the proceeding may be removed to a federal court if the other requisites of removability exist. The motion to remand must be denied, and the case will proceed in the manner provided for in the state statute. Nature of Removable Suits.-The opinion of the principal case fully accords with the previous rulings of the courts, on the points involved, and contains a very clear statement of the proper construction of the federal removal act as to the nature of a removable suit. The language of the several removal acts concerning the nature of the suit is quite broad. Sect. 639, of the Act of 1866, provides for the removal of " any suit ** wherein the amount in dispute * * exceeds the sum or value of five hundred dollars," and, of course, there must be either diversity of citizenship of the parties to the suit, or its determination must depend upon the construction of a federal law." Any suit of a civil nature at law or in equity," is the language of sect. 2 of the Removal Act of March 3d, 1875; the language of either act being broad enough to embrace all suits state courts. of a civil nature where the sum in dis- 503. " guage" of the removal acts: Dillon on Removal, 3d ed. p. 49, sect. 41. Test of Removability.-Is there a controversy between citizens of different states, is the controlling question. The general principle applicable is that a controversy between citizens is involved in a suit whenever any property or claim of the parties, capable of pecuniary estimation, is the subject of the litigation, and is presented by the pleadings for judicial determination. This rule was laid down in Gaines v. Fuentes, 92 U. S. 20, and has been subsequently reaffirmed: Boom Co. v. Patterson, 98 U. S. 403; Northern Pacific Terminal Co. v. Lowenberg, 18 Fed. Rep. 339 (U. S. Cir. Ct. Dist. Oregon). If such a controversy is involved, this constitutes a suit within the meaning of the removal act, and may be transferred to the federal courts, provided, of course, that the suit is between citizens of different states, or there is a federal question involved, and the amount in dispute exceeds $500, notwithstanding that it may have been brought in a state court of limited jurisdiction: Gaines v. Fuentes, supra; Dillon on Removal of Causes, 3d ed., p. 60, sect. 48. But see Rathbone Oil Co. v. Rauch, 5 West Va. 79, where it is held that no motion to remove a cause can be made before a justice of the peace, for the reason that this is not a state court within the meaning of the law of Congress. The act reads "any state court." Condemnation Proceedings.-This question has been more frequently contested, perhaps, in condemnation proceedings than in any other kind of cases, and several close points have been raised as to the propriety or right of the federal courts to assume jurisdiction of such proceedings. 1. It has been urged that such are not judicial proceedings; that the exercise of the right of eminent domain belongs exclusively to the state, and that the fact that it is delegated by the state legislature to corporations does not give the This It proceedings a judicial character. reasoning is specious. In all such proceedings there is necessarily a contest between the party seeking to condemn and the owner of the property. The necessity of the taking and the value are always involved. These questions are to be referred to some tribunal which, in determining them, necessarily exercises judicial powers, whatever be the nature of such tribunal in other respects. adjusts the rights of the parties, standing adversely to each other. This is understood to be the province of a court of justice: A "court is a place where justice is judicially administered," and a controversy of this kind presents all the features of a proper case for the judicial administration of justice. And it can make no difference, so far as its judicial capacity is concerned, whether it determines the questions of law or fact as they arise, or, under the particular state law, it refers them to a jury, commissioners, or referees. It is the tribunal which acts. It is the practice of many important state courts to refer cases. And the referee determines both questions of law and fact, subject to the approval of the appointing court. Nor does the fact that the state may, through its legislative department, directly appropriate private property, destroy the judicial character of the tribunal it has designated to assume control of such proceedings, when such tribunal is acting. See Port Huron, &c., Rd. v. Voorhies, 50 Mich. 506; Toledo, &c., Rd. v. Dunlap, 47 Mich. 456, 462; In re N. Y. Cent. Rd. 66 N. Y. 407, 409, where this objection is fully considered. 2. And it has been contended, that, although this is a proceeding partaking of a judicial nature, yet not a judicial proceeding in the ordinary sense, hence not a "civil suit" as contemplated by the removal act. 3. It has also been urged that this is virtually a proceeding between the state and the party seeking to condemn, there fore not subject to the federal jurisdic- brought provides, in effect, that it shall tion. Illustration Cases.-The cases fully answer these objections. City of Chicago v. Hutchinson et al., 15 Fed. Rep. 129; s. c. 23 Am. Law Reg. 730, was a proceeding by the city of Chicago to condemn land for a public street, in the Superior Court of Cook county, against the various owners. Upon application of a non-resident landowner, the controversy between her and the city was removed to the federal court. In Warren v. Wisconsin Valley Rd., 6 Biss. C. C. 425, the railroad company instituted proceedings to condemn land under the Wisconsin statute. The damages were appraised by commissioners appointed by the court. The landowner appealed to the state Circuit Court. Under the statute, the appeal when properly perfected, "shall be considered an action pending in court," the appeal shall be tried by a jury unless waived, and judgment shall be rendered thereon according to the rights of the parties. This was held to be a suit of a civil nature, and removable within the act of Congress. In Northern Pac. Terminal Co. v. Lowenberg, 18 Fed. Rep. 339 (Cir. Ct. D., Oregon), suit was commenced in the state Circuit Court of Oregon to appropriate land for the use of the railroad company. Under Oregon laws, a proceeding to condemn land is to be tried substantially the same as other civil actions. See Gen. Laws of Oregon, p. 533, sects. 42-52, Deady & Lane's ed. The cause was held removable. DEADY, J., observed (p. 342): "There is nothing in the nature or purpose of this action to prevent its removal to this court. It is an action brought against the owner of private property for the purpose of obtaining it to use it in the construction and operation of a railway, and at the same time ascertaining the value of such right or the amount that ought to be paid therefor. The statute under which it is VOL. XXXIV.-24 be commenced and proceeded in the final determination in the same manner as an ordinary action of law. The plaintiff's right to appropriate private property to its use, and the money value of such use, are in their nature proper subjects of judicial inquiry. *** And (p. 343) the mere fact that the plaintiff derives its right to appropriate private property to its use in virtue of the right of eminent domain, is altogether immaterial. In granting this right to the plaintiff, the state has seen proper to impose the condition that in case of a controversy between it and the owner of private property, as to the right of appropriation, or the value thereof, resort must be had to a judicial proceeding to determine it. And of course such proceeding, when instituted, is subject to the usual incidents of an ordinary action or suit, including the right of removal. In this respect it stands in exactly the same category as an action of ejectment to recover possession of the same premises." In Boom Company v. Patterson, 98 U. S. 403, the proceeding was to condemn land. Under the Minnesota statute (where land was located), the method of condemning land is, to apply to the District Court of the county where the land is situated for the appointment of commissioners to appraise its value and take proceedings for its condemnation. The landowner is to be properly notified, &c. If the award of the commissioners is unsatisfactory, either party may appeal to the District Court, where the proceeding is to be entered by the clerk, "as a case upon the docket" of the court; and the persons claiming an interest in the land, to be designated as plaintiffs, and the company seeking to condemn, as defendant. The court is then to "proceed to hear and determine the case." Issues of fact are to be tried by a jury, unless a jury be waived. The amount so found as the value of the land is to be |