mandamus. The jurisdiction of the Supreme Court, it is urged, "was simply to affirm or reverse and remand." This, it will be observed, is very general. It would seem even to imply that the Supreme Court has not even the power of direction, but must leave the District Court to get right ultimately through successive judgments, appeals and reversals. And the anomaly is attempted to be sustained by saying that mandamus is not included in the useful power given to the Supreme Court by § 897 in cases taken to it to "render such other judgment as may be right and just and in accordance with law," because, it is said, that mandamus "is not a case on the equity side of the court, nor is it one tried on the law side with a jury, nor is it one in which a jury has been waived and trial had by the court or judge, especially as concerns the present proceeding." This is a misunderstanding of the statute. Its purpose is to not only give the power to review, but to prevent its defeat through the distinction between. causes of action and modes of trial. Further argument is unnecessary. Even if the contention had grounds of support it would be answered by the case of English v. Arizona, 214 U. S. 359, and the case of Armijo v. Armijo, 181 U. S. 558, 561. In the latter case we said that practice "in the courts of the Territory is based upon local statutes and procedure, and we are not disposed to review the decision of the Supreme Court in such cases. Sweeney v. Lomme, 22 Wall. 208." Of the other contentions of appellants, it is enough to say that they are without merit.

Judgments affirmed.

trial or render such other judgment as may be right and just, and in accordance with law; and said Supreme Court shall not decline to pass upon any question of law or fact which may appear in any record either upon the face of the record or in the bill of exceptions, because the cause was tried by the court or judge thereof without a jury, but shall review said cause in the same manner and to the same extent as if it had been tried by a jury."

Argument for Plaintiff in Error.

215 U.S.

ILLINOIS CENTRAL RAILROAD COMPANY v.

SHEEGOG.

ERROR TO THE COURT OF APPEALS OF THE STATE OF
KENTUCKY.

No. 41. Argued December 12, 1909.-Decided December 20, 1909.

Where the joinder of the resident and the non-resident defendants prevents removal to the Federal court, the fact that on the trial the jury finds against the non-resident defendant only has no bearing on the question of removal if the joinder was not fraudulent. Allegations of fact, so far as material in a petition to remove, if controverted, must be tried in the Federal court, and therefore must be taken to be true when the state court fails to consider them. A plaintiff may sue the tort-feasors jointly if he sees fit, regardless of motive, and an allegation that resident and non-resident tortfeasors are sued for the purpose of preventing removal to the Federal court is not a sufficient allegation that the joinder was fraudulent.

A lessor railroad company remains responsible, so far as its duty to the public is concerned, notwithstanding it may lease its road, unless relieved by a statute of the State.

Whether defendants can be sued jointly as tort-feasors is for the state court to decide; and so held that, where the state court decides that a lessor road in that State is responsible for keeping its roadbed in order, the joinder of both lessor and lessee roads in a suit for damages caused by imperfect roadbed and management is not fraudulent and the lessee road, although non-resident, cannot remove if the lessor road is resident.

126 Kentucky, 252, affirmed.

THE facts are stated in the opinion.

Mr. Edmund F. Trabue, with whom Mr. John C. Doolan, Mr. Attilla Cox, Jr., and Mr. Blewett Lee were on the brief, for plaintiff in error:

The lessor and conductor were joined as petitioner's co

215 U.S.

Argument for Plaintiff in Error.

defendants solely to prevent a removal to the Federal court, and the trial court sustained their motions for peremptory instructions in their favor, and plaintiff below prosecuted no appeal from these judgments, but abandoned his case as to them both.

The allegations of fact in a petition for removal must be accepted by the state court as true, because an issue on such allegations can be tried only in the Federal court. Railway v. Dunn, 122 U. S. 513, 517; Plymouth v. Amador Co., 118 U. S. 264, 270; Louisville R. R. Co. v. Wangelin, 132 U. S. 599; Alabama Gt. Southern Ry. Co. v. Thompson, 200 U. S. 218; Wecker v. National Co., 204 U. S. 176; Chesapeake & Ohio Ry. Co. v. McCabe, 213 U. S. 207; Dow v. Bradstreet, 46 Fed. Rep. 824; Arrowsmith v. Railroad Co., 57 Fed. Rep. 165; Diday v. Railway Co., 107 Fed. Rep. 565; Union Co. v. C., B. & Q. R. R. Co., 119 Fed. Rep. 209; Kelly v. C. & A. R. Co., 122 Fed. Rep. 286; Gustafson v. Railway Co., 128 Fed. Rep. 85; Dishon v. C., N. O. & T. P. Ry. Co., 133 Fed. Rep. 471; Boatmen's Bank v. Fritzlen, 135 Fed. Rep. 650, 668 (certiorari denied, 198 U. S. 586); South Dakota Co. v. Cin. & St. P. Ry. Co., 141 Fed. Rep. 578, 581; Thomas v. Great North. Ry. Co., 147 Fed. Rep, 83, 86; Atlanta, K. & N. Ry. Co. v. Sou. Ry. Co., 153 Fed. Rep. 122, 126; M'Guire v. Great North. Ry. Co., 153 Fed. Rep. 434, 439; Politz v. Wabash Ry. Co., 153 Fed. Rep. 941; M'Alister v. Ches. & Ohio Ry. Co., 157 Fed. Rep. 740, 743; Harrington v. Gt. Nor. Ry. Co., 169 Fed. Rep. 714; Donovan v. Wells, Fargo & Co., 169 Fed. Rep. 363.

The state court, therefore, had no jurisdiction to try or determine the question of fact tendered by the petition for removal, much less to try it on evidence heard only on the merits. Rutherford v. I. C. R. R. Co., 120 Kentucky, 15; Coley v. I. C. R. R. Co., 121 Kentucky, 385; Dudley v. I. C. R. R. Co., 127 Kentucky, 221; Underwood v. I. C. R. R. Co., 31 Ky. L. R. 595, holding that the state court may try issues of fact upon a petition for removal, is a doctrine unsound in

Argument for Plaintiff in Error.

215 U.S.

principle and in conflict with the decisions of this court and all of the other Federal courts.

Where the plaintiff joins as the real defendant's codefendants persons known to be improper parties and fabricates averments concerning them in order to misstate their connection with the case, a petition for removal in alleging fraud in the joinder of the improper defendants may aver the untruth of the plaintiff's averments, otherwise the right of removal to the Federal court might always be frustrated by the plaintiff ad libitum; and the courts will be astute to prevent such devices. Miller, J., 4 Dill. 277 (cited in 57 Fed. Rep. 169), and see Crawford v. I. C. Ry. Co., 130 Fed. Rep. 395; C., R. I. & P. Ry. Co. v. Stepp, 151 Fed. Rep. 908, and other cases cited supra.

Although the state court was without jurisdiction to try an issue of fact upon the petition for removal and the assumption of the state court to pass upon the truth of the averments of such petition of itself entitles the Illinois Central to a reversal of the judgment now assailed, nevertheless the same result would follow a consideration of the case which the state court assumed to try as arising upon the record, because it is demonstrable from the opinion itself that the state court was not justified in holding that the derailment of the engine was the proximate result of the failure of the lessor to perform its public duty in its failure to construct safe roadbed.

This unwarrantable speculation is too far-fetched to justify the joinder of the Kentucky Company upon the assumption that the supposed condition of its track caused the wreck in any such fantastic way as suggested by the state court. Neeling v. C., St. P. & K. R. R. Co., 98 Iowa, 554; Cox v. C. & N. W. Ry. Co., 102 Iowa, 711.

If the state court had had jurisdiction to try the truth of the averments of the petition for removal it must have heard witnesses to that end. Instead of so doing the state court tried the Illinois Central's averments on jurisdiction by evi

215 U. S.

Argument for Defendant in Error.

dence upon the merits, and as if it were trying the liability of the Kentucky Company, which had previously been dismissed. Its judgment is, therefore, reversible from any standpoint.

Defendant in error's case against the plaintiff in error is a distinct cause of action on which a separate suit might be brought and complete relief afforded without any other party in court. Barney v. Latham, 103 U. S. 205.

Permission of state practice to join defendants does not prevent a separable controversy between plaintiff and one of them. Kelly v. Railroad Co., 122 Fed. Rep. 286, 291; Williard v. Railroad Co., 124 Fed. Rep. 796, 801; Yates v. Railroad Co., 137 Fed. Rep. 943; Iowa Ry. Co. v. Bliss, 144 Fed. Rep. 446; Manufacturing Co. v. Brown, 148 Fed. Rep. 308; South Dakota Co. v. Railway Co., 141 Fed. Rep. 578, 581; Stockton v. Oregon Short Line, 170 Fed. Rep. 627, 633; Wallin v. Reagan, 171 Fed. Rep. 758, 763.

State legislation cannot control Federal jurisdiction. Hyde v. Stone, 20 How. 170, 175; Smyth v. Ames, 169 U. S. 466; Brow v. Wabash, 164 U. S. 271.

Mr. John G. Miller, with whom Mr. P. B. Miller was on the brief, for defendant in error:

Case is not removable until the record on its face shows facts which give the Federal court jurisdiction. Ex parte Wisner, 203 U. S. 449; Kinney v. Columbia Sav. & Loan Asso., 191 U. S. 78.

If the case be not removed, the jurisdiction of the state court remains unaffected; and under the act of Congress the jurisdiction of the Federal court could not attach until it becomes the duty of the state court to proceed no further. Crehore v. M. & O. Ry. Co., 131 U. S. 240; Stone v. South Carolina, 117 U. S. 430; Carson v. Hyatt, 118 U. S. 279; Stevens v. Nichols, 130 U. S. 230; Phænix Ins. Co. v. Pechner, 95 U. S. 183; National Steamship Co. v. Tugman, 106 U. S. 118; B. & O. R. R. Co. v. Koontz, 104 U. S. 514.