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that an action commenced by attachment in the State court can be removed.' In determining between whom the controversy exists the court is not bound by the title of the cause nor by the form of the pleadings, but will examine the record, ascertain the matter in dispute, and arrange the parties on opposite sides of the controversy, no matter what their technical position as plaintiffs or defendants may be.0

It has been held that a suit between a State and a citizen of another State cannot be removed where no Federal question is involved; 11 and that a case can be removed where one of several plaintiffs is not a citizen of the State where it was brought; 12 and that where the plaintiff sued upon a cause of action which arose in his own right, and in which the value of the matter in dispute exceeded $2,000, the defendant was not

R. Co. v. Meyers (C. C. A.), 62 Fed. R. R. 302; Hunter v. Conrad, 85 Fed. R. 367, 372. See also Gavin v. Vance, 803. See Garrard v. Silver Peak 33 Fed. R. 84, 92; Swain v. Boylston Mines, 76 Fed. R. 1. But see SedIns. Co., 37 Fed. R. 766; Wilson v. don v. Virginia, T. & C. S. R. Co., 36 W. U. Tel. Co., 34 Fed. R. 561; Kan- Fed. R. 6; Putnam v. Ingraham, 114 sas City & T. R. Co. v. Interstate L. U. S. 57; Sloane v. Anderson, 117 U.S. Co., 37 Fed. R. 3; Burck v. Taylor, 39 275,278; Missouri v. New Madrid Cy.,73 Fed. R. 581; Cooley v. McArthur, 35 Fed. R. 304. It has been held that the Fed. R. 372. But see Harold v. Iron fact that a defendant has filed a crossS. Min. Co., 33 Fed. R. 529; Smith v. bill against a co-defendant does not Lyon, 133 U. S. 315.

make him a plaintiff and thus deprive 9 Crocker Nat. Bank v. Pengen- of any right of removal which he stecher, 44 Fed. R. 705; Vermilya v. would have otherwise. Jackson & S. Brown, 65 Fed. R. 149; Long v. Long, Co. v. Pearson, 60 Fed. R. 113, 123. The 73 Fed. R. 369. Cf. Bentlif v. Lon- pleading by the original defendant don & C. F. Corp. Ld., 44 Fed. R. 667. of a counter-claim or demand in re

10 Supra, $ 18; Removal Cases, 100 U. convention does not make the orig. S. 457, 468; Pacific R. Co. v. Ketchum, inal plaintiff a defendant and author. 101 U. S. 289; Barney v. Latham, 103 ize him to remove the case. Waco U. S. 205; Carson v. Hyatt, 118 U. S. Hardware Co. v. Michigan Stove Co. 279, 286; Judah v. Iowa B. W. Co., 32 (C. C. A.), 91 Fed. R. 289; McKown Fed. R. 561; Wilson v. Oswego Tp., v. Kansas & T. Coal Co., 105 Fed. R. 151 U. S. 56; Bacon v. Rives, 106 U.S. 657. Defendants, who are described 99; Wolcott v. Sprague, 55 Fed. R. in the plaintiff's pleading as un515; Scoutt v. Keck (C. C. A.), 73 Fed. known, need not join in the petition. R. 900; Stockton v. Baltimore & N. Walker v. Richards, 55 Fed. R. 129; Y. R. Co., 32 Fed. R. 9, 14; Pembina Parkinson v. Barr, 105 Fed. R. 81. Mining Co. v. Pennsylvania, 125 U.S. 11 Indiana v. Alleghany Oil Co., 85 181, 186; Horn Silver Mining Co. v. Fed. R. 870. New York State, 143 U. S. 305, 317: 12 Alley v. Edward Hines Lumber Carver v. Jarvis-Conklin Tr. Co., 73 Co., 64 Fed. R. 903. But see Smith Fed. R. 9; Missouri v. Alt, 73 Fed. v. Lyon, 133 U. S. 315.

deprived of his right to remove the case, because of a joinder in the same complaint of another cause of action that had been assigned to the plaintiff, the record not showing the citizenship of the assignor.13 A case can be removed for a difference of citizenship, where that does not appear in the plaintiff's pleading, provided it is shown in the petition for a removal.14 When in any suit of a civil nature, now pending or hereafter brought in a State court, there are two or more separable causes of action, and in respect to one of them all the necessary parties on one side are citizens of different States from those on the other, either one or more of the defendants interested in such controversy may remove the suit into the Circuit Court of the United States for the proper district. 15 Such removal may be had by any defendant, irrespective of his residence or citizenship. 16

“Where a suit is now pending or may be hereafter brought in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States for the proper district at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause.” 17

The Revised Statutes provide that “when any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title,

13 Sharkey v. Port B. M. Co., 92 Fed. 15 24 St. at L., ch. 373, p. 552; infra, R. 425; S. C. (C. C. A.), 102 Fed. R. 259; $ 384. Hoge v. Canton Ins. Office, 103 Fed. R. 16 Stanbrough v. Cook, 38 Fed. R. 513. But see infra, $ 393.

369. 14 Ysleta v. Canda, 67 Fed. R. 6; 17 24 St. at L., ch. 373, p. 552. For infra, 8 385a.

the practice in such a case see infra,

$ 386.

or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the Circuit Court next to be holden in the district where the same is pending, upon the petition of such defendant.” 18 It has been held that this statute is constitutional; 19 that it gives the right of removal to a corporation constructing a building under the authority of the Secretary of the Treasury; 20 and that a proceeding to punish a collector of internal revenue for contempt in refusing to permit a sheriff to enter a bonded warehouse may be removed. 21

In an action against any person for or on account of anything done by him while an officer of either House of Congress, in the discharge of his official duty, the district attorney of the United States for the district where the suit is brought must appear for such officer at his request; and he has the same right of removal as a revenue officer in the cases above mentioned, which right must be similarly exercised.22

“When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the

18 U. S. R. S., 8 643, as amended by 21 McCullough v. Large, 20 Fed. R. 28 Sto at L., p. 36. For practice see infra, $ 388.

22 18 St. at L., ch. 130, § 8, p. 401 (1 19 Tennessee v. Davis, 100 U. S. 257. Supp. R. S. U. S., p. 165). This act

20 Ward v. Congress Const. Co. (C. was passed on account of the case of C. A.), 99 Fed. R. 598.

Kilbourn v. Thompson, 103 U. S. 168; & C., McA. & M. 401.


petition of such defendant, filed in such State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district where it is pending.” 23 This statute gives no relief to prevent or cure wrongs committed by judicial tribunals in the administration of a constitutional law.24

An action by a State or by a public officer to recover a penalty is criminal, not civil in its nature; and it can be removed only upon a ground on which a criminal prosecution may be removed ; 25 even, it has been held, where the State statute declares it to be a civil action; 26 or where a count for the penalty is joined with another count for damages. An information in equity to enjoin the violation of a State antitrust law was held not to be removable.28 But a statutory summary proceeding by a landlord to eject a tenant is removable. So is a proceeding to collect delinquent taxes under the laws of North Dakota ; 30 and an action to recover damages for negligence; 81 even under the Massachusetts statute which also provides for a fine payable to the personal representative after conviction upon an indictment; and such an action may be maintained in a Federal court sitting in another State.33 A proceeding not in a court of justice, but carried on by executive officers in the exercise of their proper functions, is considered as purely administrative in its character, and not in any just sense a suit; but an appeal from the decision in such a proceeding may become a suit, if made to a court or tribunal having power to determine questions of law and fact, either with or

* U. S. R. S., S 641.

29 Gallatin v. Sherman, 77 Fed. R. 24 Virginia v. Rives, 100 U. S. 313, 337. 320; California v. Chue Fau, 42 Fed. 30 In re Stutsman County, 88 Fed. R. 865.

R. 237. 25 Ferguson v. Ross, 38 Fed. R. 161; 31 Brisenden v. Chamberlain, 53 Texas v. Day L & C. Co., 41 Fed. R. Fed. R. 307; Boston & M. R. Co. v. 228; Iowa v. Chicago, B. & Q. R. Co., Hurd (C. C. A.), 108 Fed. R. 116. 37 Fed. R. 497; Dey et al., R. R. Com'rs, 32 Boston & M. R. Co. v. Hurd (C. v. Chicago, M. & St. P. R. Co., 45 Fed. C. A.), 108 Fed. R. 116. Contra, Lyman R. 82.

v. Boston & A. R. Co., 70 Fed. R. 409; 26 Indiana v. Alleghany Oil Co., 85 Perkins v. Boston & A. R. Co., 90 Fed. R. 870.

Fed. R. 321. 27 Texas v. D. L. & C. Co., 49 Fed. 33 Boston & M. R. Co. v. Hurd (C.C. R 593.

A.), 108 Fed. R. 110; Dennick v. Cen3 Moloney v. Am. T. Co., 72 Fed. R. tral R. Co., 103 U. S. 11; Stewart v. B. 801.

& O. R. Co., 168 U. S. 445.

without a jury, and if there are parties litigant to contest the case on the one side and the other.34 Thus, an appeal under a State law from an assessment of taxes to “a County Court," which in respect to such proceedings acts not as a judicial body, but as a board of commissioners without judicial power and only authorized to determine questions of quantity, proportion, and value, is not a suit which can be removed to a Federal court.35 An appeal to a court of Indiana from the decision of the Board of County Commissioners, upon a claim against a county, is considered as a suit which may be removed to the proper Federal court. 36

The general rule with regard to condemnation proceedings is that the initial proceeding of the appraisement by commissioners is an administrative proceeding and not a suit which can be removed; but that if an appeal is taken to a court, and a litigation is then instituted between parties, the proceeding thereupon becomes a suit which may be removed. 37

34 Delaware C. Com'rs v. Diebold 37 Upshur County v. Rich, 135 U. S. S. & L. Co., 133 U. S. 473; Upshur 467, 475; Boom Co. v. Patterson, 98 County v. Rich, 135 U. S. 474-477, U. S. 403; Pacific Railroad Removal per Bradley, J.

Cases, 115 U. S. 1, 18; Searl v. School 35 Upshur County v. Rich, 135 U.S. District, 124 U. S. 197, 199; Warren 467; Fuller v. County of Colfax, 14 v. W. V. Ry. Co., 6 Bissell, 425; BaniFed. R. 177. So of an assessment for gan v. Worcester, 30 Fed. R. 392; local improvements. In re Chicago, Kansas City & T. R. Co. v. Interstate 64 Fed. R. 897. But it was held that L. Co., 37 Fed. R. 3. A petition filed a special statutory proceeding for by a railway company with the Conthe establishment of a drain under necticut railroad commissioners for the Indiana laws is, after the fil. the purpose of obtaining their coning of the commissioners' report in sent to the taking of certain land by the State Circuit Court and the condemnation proceedings, is not a filing of remonstrances thereto, a suit which can be removed. N. Y., controversy of a “civil nature” which N. H. & H. R. Co. v. Cockroft, 46 Fed. may be removed when the requisite R. 881. difference of citizenship, etc., exists. It was held that a proceeding in In re The Jarnecke Ditch, 69 Fed. R. West Virginia in which was involved 161.

the right of the applicant to condemn 36 Delaware C. Com'rs v. Diebold S. lands for a public purpose was re& L. Co., 133 U. S. 473. See also Tul. movable. Sugar Creek, P. & P. C. lock v. Webster County, 40 Fed. R. Ark. Co. v. McKell, 75 Fed. R. 34. 706. In such a case the claimant That condemnation proceedings was considered as the plaintiff, al- under the Connecticut railroad law though the appeal had been taken cannot be removed. Hartford & C. by a taxpayer from a decision allow. W. R. Co. v. Montague, 94 Fed. R. 227. ing the claim. Tullock v. Webster That in New Hampshire, if the landCounty, 40 Fed. R. 706.

owner be regarded as a plaintiff he

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