Federal

questions

involved.

moval. It is further urged, in support of the jurisdiction, that upon the face of the record it is made to appear that there is a federal question involved in the controversy, and on this ground the jurisdiction can be sustained. If it be admitted that the facts pleaded in the answer of the defendant company do present a question arising under the constitution and laws of the United States, that does not change or affect the inherent nature of the proceeding. If the subject matter of the petition filed is without the jurisdiction of the circuit court, for the reasons already assigned, pleading a defense thereto, based upon the constitution of the United States, cannot confer the power to grant the relief sought by the petition in case the defense is overruled. The remedy in such cases is to set up in the state court the defense presenting the federal question, and if the ruling therein is adverse to the right asserted under the federal constitution, then this question can be taken from the court of last resort in the state to the supreme court of the United States. In this way the administration of the public laws of the state is left to the state tribunals, although the federal question is decided by the highest federal court.

The conclusion reached is that the subject matter of the proceeding originally brought in the district court of Dubuque county is not within federal cognizance: that the pleading a defense, based upon the federal constitution and laws, does not change the character of the controversy, and therefore the proceeding is not one of which the circuit court of the United States can take jurisdiction, by removal or otherwise. The motion to remand must therefore be sus

tained.

CALDWELL, J., concurs.

Jurisdiction of Federal Court over Removed Case which could not Origi. nally have been Brought in that Court.-See People v. Colorado Central R. Co. (C. C.), 45 Am. & Eng. R. Cas. 599.

Removal of Proceeding in State Court to Condemn Right of Way.-In Kansas City & T. R. Co. v. Interstate Lumber Co., 37 Fed. Rep. 3, it was held that a proceeding in state court for condemnation of right of way, is a suit at law, and may be removed into federal court in pursuance of acts for the removal of causes. And under the Missouri statutes for the condemnation of land by railroad companies, providing that a summons shall be issued to the owner giving him ten days' notice of the time when the petition will be heard, where the cause is removed to the United States circuit court on the return day of the summons, the appointment of commissioners by the latter court to assess damages is a proceeding in the cause, and will not be made prior to the next regular term after the removal. The court say: "The statute directs in substance that where lands are sought to be appropriated by any railroad for public use, and the parties cannot agree upon the proper compensation, such corporation may apply to the circuit court of the county where the land lies, or the judge thereof in va

cation, by petition setting forth certain specified facts, praying the appointment of three commissioners or a jury to assess the damages. Upon filing the petition, a summons shall be issued, giving such owner at least 10 days notice of the time when the petition will be heard. Provision is also made for notice by publication to unknown and non-resident parties. The court, or judge in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three commissioners, freeholders and residents of the county where the land is situated, to assess the damages, who, after viewing the property, shall forthwith return under oath such assessment of damages to the clerk of the court. The clerk shall file such report, and record the same, and thereupon such company shall pay the clerk the amount of the assessment for the party in whose favor it is made; and, on making such payment, it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid, etc. It is then provided that upon the filing of such report the clerk of the court shall duly notify the party whose property is affected of the filing thereof; and the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions filed by either party in the clerk's office within 10 days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown. Such new appraisement, at the request of either party, shall be by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; such proceedings, however, not to affect the right of the company to enter upon the land, it having paid the original assessment, but only the amount of compensation to be allowed. What has been said respecting remanding the cause is quite applicable to this motion. Judge Dillon, in his work on Removal of Causes, (page 71,) says:

'The jurisdiction of the circuit court does not properly attach until the record of the state court is entered therein. If it be entered before the time, it has been made a question whether it will then attach. For some purposes it would seem that it might; as, for example, if it became necessary meanwhile to issue an injunction, or appoint a receiver, (which should be done, however, only upon notice,) in order to protect the right of the parties, or to preserve the property in litigation.'

"SO BILLINGS, J., in New Orleans R. Co. v. Crescent City R. Co., 5 Fed. Rep. 160, on refusing to dissolve an injunction before the return day of the record, very aptly expressed the limitation of the rule as to what the United States circuit court might do ad interim:

"What the court should do in this, as in all cases where the record is here before the return day, is by all proper orders to preserve the property in dispute, and the rights of all the litigants.'

"But it must be conceded that to entertain this motion, and proceed now to the appointment of commissioners, is to proceed with the cause. It is to assume that the cause is properly here, and to take a step therein in the nature of adjudication. As shown by the preceding discussion herein, the court may be called upon to determine, in the first instance, whether or not it has acquired jurisdiction, either over the subject matter, or from the character of the parties. Unless it has so acquired jurisdiction, it could not proceed to appoint the commissioners, as its act therein would be coram non judice. In the next place, the court must determine, from an inspection of the petition, whether or not the jurisdictional facts are stated entitling the petitioner to institute the condemnation proceeding. If it be said in answer to this that the state court has already determined the sufficiency of the petition in issuing the summons to the defendant, it is not maintainable, because the statute directs that upon filing the petition summons shall be issued, giving the owner 10 days' notice of the

time when said petition will be heard; showing that the petition is not to be heard until after such summons. And as the cause was removed from the state court on the return day of the summons, the petition remains to be heard. The succeeding section of the statute provides that the next step to be taken is that the court, or judge in vacation, shall be satisfied that due notice of the pendency of the petition has been given. These are facts to be ascertained by the court in the progress of the cause; and whatever construction may be placed upon the termsaid petition will be heard,' whether it pertain, as contended by counsel for defendant, to the determination in advance of the question whether or not the use be a public one to which the property is to be applied, or whether it pertains solely, as contended by counsel for the petitioner, to the giving the property owner the right to be heard in the matter of appointing proper commissioners, it still remains an action taken by the court in the progress of the condemnation proceedings, and as such it cannot be regarded as in the nature of a mere provisional order designed to maintain the statu quo of the parties, or to preserve the property in litigation.' It was for this reason, in the main, that Judge NELSON, in Re Barnesville & M. R. Co., 2 McCrary (U. S.), 216, 4 Fed. Rep. 10, refused, before the return day, to appoint such commissioners. As already suggested, before the appointment of such commissioners could be made on this record, I should have to determine the question as to whether this cause was properly removed to this court; and as I am inclined to the opinion that the same was prematurely removed, and as I have just held that I cannot remand it until the next cessation of this court, it must follow that I must decline to appoint commissioners as requested."

WHEELING BRIDGE & TERMINAL R. Co.

V.

CAMDEN CONSOLIDATED OIL CO.

(West Virginia Supreme Court of Appeals, June 13, 1891.) Partial Construction of Railroad-Retention of Corporate Existence and Franchise. A railroad company chartered under the general law of the state may complete and operate a part of its railroad, and, as to the part so completed and operated, retain its corporate existence, franchise, and powers. Chapter 54, § 66, Code, (Ed. 1877.)

Same-Construction of Branch Road.-A railroad company organized under such general law may build and construct lateral and branch roads not exceeding 50 miles in length, and use and operate any part or portion of their main line and branch or branches when completed, the same as though the whole of the proposed railroad were fully completed. Chapter 54, $69, Code 1887.

Same Branch Road from a Branch Road.-Such branches may have, in part, a common stem leading from the main line, that is, there may be a branch from a branch-provided the limit as to length is not exceeded. Location of Road-Filing of Map and Profile.-Under the provisions of the general law of this state, the filing of the map and profile of the location of the railroad in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of the road is located, is not in law a condition precedent to the appointment of commissioners to ascertain a just compensation to the owners of the real estate proposed to be lawfally taken for the purpose of such road; but the

circuit court may, in its discretion, require such map and profile, or such part as may be needed, to be filed or produced before appointing such commissioners.

Power to Condemn-Condition Precedent-The Delivery of the Certificate of Incorporation of such company, or of a copy thereof properly certified, to the clerk of the county court for record in the county in which the principal office or place of business of such company is, is not a condition precedent to the proper and lawful exercise of the right to condemn.

ERROR to Circuit Court, Ohio County.

J. F. Jacob and H. M. Russell, for plaintiff in error. Ewing, Melvin & Riley and W. P. Hubbard, for defendant in error.

Case stated.

HOLT, J.-This is a writ of error to the judgment and rulings of the circuit court of Ohio county in a proceeding by way of petition on the part of the railway company to condemn certain real estate belonging to the Camden Consolidated Oil Company. The constitution of the state of West Virginia requires that "the legislature shall provide for the organization of all corporations hereafter to be created by general laws uniform as to the class to which they relate; but no corporation shall be created by special law." Const. W. Va. art. 11, § 1; Code W. Va. (Warth's Ed.) p. 40. In pursuance of this requirement, the legislature has from time to time enacted the law as we now find it in chapters 52-55, pp. 484-559, Code W. Va. Under this law the railway company became incorporated and received its charter on the 6th day of March, 1882, but by the name of the "Wheeling & Harrisburg Railway Company of West Virginia." On the 12th day of September, 1889, the name was changed to the present one, "Wheeling Bridge & Terminal Railway Company." The railroad which this corporation proposed to build commences at the west corporation line of the city of Wheeling, in Ohio county, on the line between the state of Ohio and the state of West Virginia, and is to run thence by the most practical route to a point in Marshall county, at or near where the line between the state of West Virginia and the state of Pennsylvania is crossed by Wheeling creek. The city of Wheeling, by ordinance of its council passed February 28, 1888, which took effect May 28, 1888, gave its consent that this railway company might construct, maintain, and operate a branch railroad for terminal and connecting tracks and facilities in the city of Wheeling, subject to certain restrictions and conditions which need not here be mentioned; and on the 18th day of January, 1889, the city passed another ordinance on the subject. This railroad company has already built along its main line a double track railroad bridge across the Ohio river, two double track tunnels,

-one 557 feet long; the other 1,203 long,-to a point called the "Peninsula," in the valley of Wheeling creek, and a branch from that point down Wheeling creek, on the south side, thence through Chapline hill, by a double track tunnel, 2,460 feet long, to the lower end of the city of Wheeling, on the Ohio river. The railway company has found it necessary for its legitimate purpose to have a freight station near the northern portal of its Chapline-Hill tunnel; but there is no room on the south side of Wheeling creek. Therefore it is compelled to build a switch or branch across Wheeling creek to the north side for that purpose; and this proceeding has been instituted for the condemnation of the land in question, lying on the north side, belonging to the oil company. The oil company appeared in the court below, and resisted such condemnation, putting its objections in the form of seven common law pleas, which it tendered and offered to file, to each of which the plaintiff objected. The court rejected pleas numbered 1, 2, 4, and 5, but permitted numbers 3, 6, and 7 to be filed, on which issues were made up, and tried by a jury. During the trial the court gave at the instance of plaintiff, and against the objection of defendant, seven several instructions. The defendant then moved that the jury be directed to find in writing upon three several questions of fact written out for the purpose, (see § 5, chap. 131, Code, p. 813;) but the court refused, and the case being submitted to the jury, they returned for plaintiff a general verdict on the issues joined, also a special finding for plaintiff on each of the issues joined on the three pleas filed. Thereupon the defendant moved the court to set aside the verdict, and grant it a new trial; but the court overruled the motion and proceeded to appoint five commissioners, in accordance with § 10, chap. 42, p. 312, of the Code to ascertain what would be a just compensation to defendant for each parcel of real estate proposed to be taken. To all these rulings against defendant it excepted, the evidence being certified, and the cause is now here for review.

road-Necessity for filing

The serious question intended to be presented by this record grows out of the rejection of pleas Nos. 1 and 2. Section 65, chap. 54, p. 525, Code, (Warth's 2d Ed.,) reads: Every such corporation shall, within a rea- Location of sonable time after its railroad is located, cause to be made a map and profile thereof with the names map and proof the owners of the lands through which it runs, le. and of the noted places along the same stated thereon, and file the same in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of said road is located." Plea No.