Opinion of the Court.

Court of Appeals, was valid or invalid, the question who should be appointed receiver remained within the jurisdiction of the Circuit Court.

3d. The more important suggestion is that the decree of the Circuit Court of Appeals is void, because Judge Pardee took part in the hearing and decision in that court, though disqualified from so doing by section 3 of the Judiciary Act of 1891, which provides that "no justice or judge, before whom a cause or question may have been tried or heard" in the Circuit Court "shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals." 26 Stat. 827. The question whether this provision prohibited Judge Pardee from sitting in an appeal which was not from his own order, but from an order setting aside his order, is a novel and important one, deeply affecting the administration of justice in the Circuit Court of Appeals. If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari. United States v. Lancaster, 5 Wheat. 434; United States v. Emholt, 105 U. S. 414; The Queen v. Justices of Hertfordshire, 6 Q. B. 753; Oakley v. Aspinwall, 3 N. Y. 547; Tolland v. County Commissioners, 13 Gray, 12.

The writ of certiorari, authorized by the act of 1891, and prayed for in this case, being in the nature of a writ of error to bring up for review the decree of the Circuit Court of Appeals, the question whether the writ should be granted rests in the discretion of this court; but when the writ has been granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law. Harris v. Barber, 129 U. S. 366, 369.

For the reasons above stated, this court is of opinion that the writ of certiorari prayed for in the second case should not be granted, unless Judge Pardee was disqualified by the act of 1891 to sit at the hearing in the Circuit Court of Appeals; but that, if he was so disqualified, the writ should be granted,

Opinion of the Court.

for the purpose of bringing up and quashing the decree of that court; that there should, therefore, be a rule to show cause why a writ of certiorari should not issue on this ground and for this purpose only; and that the question whether the decree of the Circuit Court of Appeals was void, by reason of Judge Pardee's having taken part in it, can more fitly be determined on further argument upon the return of that court to the rule to show cause. Ex parte Dugan, 2 Wall. 134.

If the decree of the Circuit Court of Appeals is void, because one of the judges who took part in the decision was forbidden by law to sit at the hearing, a writ of certiorari to that court to bring up and quash its decree is manifestly a more decorous, as well as a more appropriate, form of proceeding than a writ of mandamus to the Circuit Court to disregard the mandate of the appellate court.

The following orders, therefore, will be entered in these two

cases:

In No. 14, writs of mandamus and certiorari denied; and petition dismissed.

In No. 15, writs of mandamus denied; and rule granted

to show cause why a writ of certiorari should not issue to bring up and quash the decree of the Circuit Court of Appeals.

THE CHIEF JUSTICE was not present at the argument of these cases, and took no part in their decision.

On April 3, the petitioner moved this court to continue in force the stay of proceedings in No. 14 until the final disposition of No. 15. The court denied the motion. Thereupon the petitioner moved, and was permitted by the court, to dismiss the petition in No. 15.

Opinion of the Court.

WOLFE v. HARTFORD LIFE AND ANNUITY INSURANCE COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 162. Submitted March 23, 1893. - Decided March 27, 1893.

A complaint which avers that the plaintiff was, at the several times named therein, "and ever since has been and still is a resident of the city, county and State of New York," is not sufficient to give the Circuit Court of that circuit jurisdiction on the ground of citizenship of the parties, when the record nowhere discloses the plaintiff's citizenship.

THE case is stated in the opinion.

Mr. Robert S. Green and Mr. Henry Thompson for the plaintiff in error.

Mr. Herman Kobbe for defendant in error.

THE CHIEF JUSTICE: The complaint in this case avers that the plaintiff was at the several times mentioned therein, "and ever since has been and still is, a resident of the city, county and State of New York," but his citizenship is nowhere disclosed by the record.

It is essential in cases where the jurisdiction depends upon the citizenship of the parties that such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record. It is not sufficient that jurisdiction may be inferred argumentatively from the averments. Brown v. Keene, 8 Pet. 112, 115; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Menard v. Goggan, 121 U. S. 253.

Judgment reversed at the cost of plaintiff in error and the cause remanded for further proceedings.

Counsel for Appellee.

. OGDEN v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

No. 1184. Submitted March 20, 1893. - Decided March 27, 1893.

The appeal in this case from a decree of the Circuit Court in a suit against the United States brought under the act of March 3, 1887, 24 Stat. 505, c. 359, not having been taken until August 9, 1892, is dismissed.

THE appellant brought this suit against the United States under the act of March 3, 1887, 24 Stat. 505, c. 359. The amount claimed exceeded the sum necessary to give this court jurisdiction on appeal. The bill was dismissed June 27, 1892. The application for appeal was made August 9, 1892. On behalf of the appellee the following motion was made: "And now, March 20, 1893, comes the Solicitor General, on behalf of the appellee, and moves the court to dismiss the appeal herein for that such appeal is not authorized, by the act of March 3, 1891, 26 Stat. 826, entitled 'an act to establish Circuit Courts of appeals,' and so forth; and because such appeal is without the authority of law, and this court, therefore, is without jurisdiction of said appeal:" and with this motion was also submitted a statement of the appellants' counsel in which, acknowledging notice of the motion, he said: "I am anxious that the question shall be determined; the time you give me, however, is too short to prepare or file a brief. I accept your communication of the 13th as notice and waive any other, asking you in making the motion to state to the court that, so far as appellant is concerned, the case is submitted for construction of the statute conferring jurisdiction on the Circuit Courts in actions against the government, and whether that act conferring special jurisdiction with special procedure is affected by the general act creating the Circuit Courts of appeal."

Mr. Solicitor General for appellee in support of the motion.

Opinion of the Court.

Mr. J. R. Beckwith for appellants, opposing.

THE CHIEF JUSTICE: This appeal is dismissed upon the authority of Bank v. Peters, 144 U. S. 570; Hubbard v. Soby, 146 U. S. 56, and cases cited.

NORTHERN PACIFIC RAILROAD COMPANY v.

WALKER.

CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 1124. Argued January 31, February 1, 1893. — Decided April 3, 1893.

Following Walter v. Northeastern Railroad Company, 147 U. S. 370, it is again held that a Circuit Court of the United States has no jurisdiction over a bill in equity to enjoin the collection of taxes from a railroad company, when distinct assessments, in separate counties, no one of which amounts to $2000, and for which, in case of payment under protest, separate suits must be brought to recover back the amounts paid, are joined in the bill and make an aggregate of over $2000.

As, perhaps, by amendment this bill might be retained as to some one of the defendants, this court declines to dismiss the bill, and reverses the judgment, and remands the cause to the court below for further proceedings in conformity with this opinion.

THE case is stated in the opinion.

Mr. Frederick M. Dudley and Mr. James McNaught for appellant.

Mr. S. L. Glaspell, (with whom was Mr. Edgar W. Camp on the brief,) for appellees.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

This was a bill filed in the Circuit Court of the United States for the District of North Dakota, November 21, 1890, by the