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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; Phonix 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.

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The controversy must be wholly between citizens of different States in order to remove the case, and such is not the case when one or more defendants jointly sued are citizens of the same State with plaintiff. Core v. Vinal, 117 U. S. 347; Chesapeake v. Ohio R. R. Co., 179 U. S. 131; Powers v. C. & O. R. R. Co., 169 U. S. 92; Alabama G. S. R. R. Co. v. Thompson, 200 U. S. 206; C., N. O. & T. P. R. R. Co. v. Bohon, 200 U. S. 221.

If the act of an individual is within the terms of the law, whatever may be the reasons which govern him, or whatever may be the result, it cannot be impeached. Doyle v. Continental Ins. Co., 94 U. S. 535; Prewitt v. Mut. Life Ins. Co., 115 Kentucky, 26.

Plaintiff's motive in the performance of a lawful act was not open to inquiry. C. & O. R. R. Co. v. Dixon, 179 U. S. 131.

The construction given to the statute of the State by the highest tribunal of the State is regarded as part of the statute and is binding upon the courts of the United States as a text. Leffingwell v. Warren, 2 Black, 599; Com. Bank v. Buckingham, 5 How. 317; Jackson v. Lamphire, 3 Pet. 280.

When the highest judicial tribunal of a State has determined the extent of the powers and liabilities of corporations created under its laws, the decision is conclusive on the national courts in all cases in which no question of general or commercial law and no question of right under the Constitution of the United States is involved. See 92 Fed. Rep. 124; Clayborne v. Brooks, 111 U. S. 400; Detroit v. Osborne, 135 U. S. 499; Gilman v. Sheboygan, 2 Black, 510; L. & N. R. R. Co. v. Kentucky, 183 U. S. 508; Connell v. Utica E. R. R. Co., 13 Fed. Rep. 241; C. & O. Ry. Co. v. Dixon, 179 U. S. 131; Southern Ry. Co. v. Carson, 194 U. S. 136; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206; Cin., N. O. & T. P. R. R. Co. v. Bohon, 200 U. S. 221.

In case of a misjoinder, a plaintiff's motive in joining a party as defendant can be questioned only when by legislative act or judicial decision it is the settled law of the State in which

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the action is brought that the defendant, alleged to be joined as a sham and a fraud, is not liable; and no such question can arise where the law of the State by judicial decision or legislative act fixes the liability of such defendant. Cases supra, and Person v. I. C. R. R. Co., 118 Fed. Rep. 342.

The action for death is regulated by the Kentucky constitution and statute. Const. Ky., § 241; Ky. Stat., § 6. And the liability of a railroad corporation that leases its track is regulated by the Kentucky constitution, § 203, which forbids the shifting of that liability from the lessor to the lessee.

Independent of the constitutional provision the corporation owning the road and having received a charter from the State is under certain public duties that even a duly authorized lease will not shift or change, and the owner cannot divest itself of those public duties. Brooker v. M. & B. S. R. R. Co., 119 Kentucky, 137; McCabe v. M. & B. S. R. R. Co., 112 Kentucky, 861; Swice v. M. & B. S. R. R. Co., 116 Kentucky, 253; Howard v. M. & B. S. R. R. Co., 70 S. W. Rep. 631; Davis v. C. & O. Ry. Co., 75 S. W. Rep. 227; Clinger v. M. & B. S. R. R. Co., 109 S. W. Rep. 317.

While the lessor may not be liable to the servant of the lessee for an injury caused by the negligent act or omission of the lessee as to some duty growing out of the mere relationship of master and servant, the lessor is liable for an injury to any member of the public, including the servant of the lessce, who may be injured by a negligent act or omission as to a public duty, such as a failure to keep its roadbed or track, cattle guards, fences, or station houses in a reasonably safe condition. Swice v. M. & B. S. Ry. Co., 116 Kentucky, 253; Nugent v. Boston Railroad Co., 80 Maine, 62; Curl v. Railroad, 28 Kansas, 622; Arrowsmith v. Railroad, 57 Fed. Rep. 165; Lee v. S. P. R. R. Co., 116 California, 97.

To sue all three of the defendants for damages resulting from the negligent acts charged in the petition of plaintiff, is allowable under the Kentucky practice, and all were jointly bound or liable. Pugh v. C. & O. Ry. Co., 101 Kentucky,

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77; Rutherford v. I. C. R. R. Co., 27 Ky. L. R. 397; Jones v. 1. C. R. R. Co., 26 Ky. L. R. 31; I. C. R. R. Co. v. Coley, 28 Ky. L. R. 336; Cent. Pass. Ry. Co. v. Kuhn, 86 Kentucky, 578; Hawkins v. Riley, 17 B. Mon. 101; C. & O. R. R. Co. v. Dixon, 179 U. S. 131.

Under the authorities supra, the construction given by the Court of Appeals of Kentucky to § 119 of the Kentucky Civil Code is conclusive; and no act of the legislature or authority for the lease is set forth in the petition for removal; and that being true, the lease, if such existed, is not shown by any allegation to have been authorized by law and should, therefore, be treated as void. Thomas v. West Jersey R. R. Co., 101 U. S. 71; Railroad v. Winans, 17 How. 30.

Petition to remove after a trial on the merits comes too late. A peremptory instruction to find for any of the defendants was "ruling on the merits and not a ruling on the question of jurisdiction." "The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried." Whitcomb v. Smithson, 175 U. S. 635; Kansas City Suburban Belt Ry. v. Herman, 187 U. S. 63.

Therefore, not only does the petition of the plaintiff allege facts that would constitute a joint cause of action against all of the defendants, as held by the Court of Appeals of Kentucky, but as stated by the opinion of that court in this case, "the testimony showed without much contradiction" the truth of plaintiff's allegations as to the miserably defective and dangerous condition of this track and thus absolutely fixed the liability of both the lessee and the lessor for the death of the plaintiff's intestate which was caused thereby,and the effort to avoid this conclusion by claiming the striking of the stray mule by the engine was the proximate cause, only makes matters worse for the corporations, because their actionable negligence in violating § 1793, Kentucky statute, as to a cattle guard at that place, caused the collision with the mule.

MR. JUSTICE HOLMES delivered the opinion of the court.

THIS is a writ of error to reverse a judgment rendered by the Court of Appeals of Kentucky in favor of the defendant in error, notwithstanding a petition and bond for removal to the Circuit Court of the United States. I. C. Ry. Co. v. Sheegog's Admr., 126 Kentucky, 252.

The defendant in error brought this action for causing the death of his intestate, John E. Sheegog, by the throwing off the track of a railroad train upon which the deceased was employed as an engineer. The defendants were the conductor of the train, the Illinois Central Railroad Company, which was operating the railroad and owned the train, and the Chicago, St. Louis and New Orleans Railroad Company, which owned the road and tracks where the accident happened, but which had let the same to the first-mentioned road. It was alleged that through the negligence of both companies the roadbed, track, etc., were in an improper condition; that through the negligence of the Illinois Central the engine and cars were in an improper condition; and that the death was due to these causes acting jointly, the negligence of the Illinois Central in permitting its engine, cars and road to be operated while in such condition, and the negligence of the conductor in ordering and directing the management of the train.

In due season the Illinois Central Railroad Company, being an Illinois corporation, filed its petition to remove. The difficulty in its way was that the other two defendants were citizens and residents of Kentucky, to which State the plaintiff also belonged. To meet this the petition alleged that the plaintiff had joined these parties as defendants solely for the purpose of preventing the removal. It admitted the lease and averred that the Illinois Central Company operated the road exclusively and alone employed the deceased. It went on to allege that the charge of joint negligence against the lessor and lessee in causing the wreck as stated was made only for the above purpose and was fraudulent and knowingly false.