In regard to the removal of cases, the following principle, have
been settled:
If the case be a removable one, that is, if the suit, in its
nature, be one of which the circuit court could rightfully take
jurisdiction, then,
Page 196 U. S. 240
upon the filing of a petition for removal, in due time, with a
sufficient bond, the case is, in law, removed, and the state court
in which it is pending will lose jurisdiction to proceed further,
and all subsequent proceedings in that court will be void.
After the presentation of a sufficient petition and bond to the
state court in a removable case, it is competent for the circuit
court, by a proceeding ancillary in its nature -- without violating
§ 720, Rev.Stat., forbidding a court of the United States from
enjoining proceedings in a state court -- to restrain the party
against whom a cause has been legally removed from taking further
steps in the state court.
If, upon the face of the record, including the petition for
removal, a suit does not appear to be a removable one, then the
state court is not bound to surrender its jurisdiction, and may
proceed as if no application for removal had been made.
Under the Judiciary Act of 1887-1888, a suit cannot be removed
from a state court unless it could originally have been brought in
the circuit court of the United States.
A state cannot, by any statutory provisions, withdraw a suit in
which there is a controversy between citizens of different states
from the cognizance of the federal courts.
A proceeding brought by a Kentucky railroad company in the
county court under §§ 835-839, Kentucky Statutes, to condemn lands
for a public use, valued at over $2,000, belonging to a corporation
which is a citizen of another state, is a suit involving a
controversy to which the judicial power of the United States
extends within the meaning of the judiciary clauses of the
Constitution and of which the circuit court has original cognizance
under § 1 of the Judiciary Act of 1887, and may be removed to the
circuit court of the United States.
In the exercise of the jurisdiction conferred upon it of
controversies between citizens of different states, a circuit court
of the United States is for every practical purpose a court of the
state in which it sits, and will enforce the rights of the parties
according to the law of that state taking care, as a state court
must, not to infringe any right secured by the Constitution and the
laws of the United States. And, in a case of condemnation, it would
proceed under the sanction of, and enforce, the state law so far as
it was not unconstitutional.
It is fundamental in American jurisprudence that private
property cannot be taken by the government, National or state,
except for purposes which are of a public character, although such
taking be accompanied by compensation to the owner.
It is for the state, primarily and exclusively, to declare for
what local public purposes private property, within its limits, may
be taken upon compensation to the owner, as well as to prescribe a
mode in which it may be condemned and taken. But the state may not
prescribe any mode of taking private property for a public purpose
and of ascertaining the compensation to be made therefor which
would exclude from the
Page 196 U. S. 241
jurisdiction of a circuit court of the United States a
condemnation proceeding which in its essential features is a suit
involving a controversy between citizens of different states.
The facts are stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The Madisonville Traction Company, a Kentucky corporation,
having by its charter authority to construct an electric railroad,
filed its application in the County Court of Hopkins County, in
that commonwealth, to condemn for its use certain lands belonging
to the Saint Bernard Mining Company, a Delaware corporation engaged
in mining coal -- the traction company being styled in the
application as plaintiff, and the mining company as defendant.
The application was made under the Kentucky statutes relating to
the condemnation of lands. The nature of those proceedings, whether
judicial or not, appears from certain provisions of those statutes,
which may be summarized as follows:
Any company authorized to construct a railroad, if "unable to
contract with the owner of any land or material necessary for its
use for the purpose thereof," may file in the office of the clerk
of the county court a description of such land or material, and
have commissioners appointed to assess the damages which the owner
is entitled to receive. Kentucky Stat. § 835.
The commissioners are required to make their award of damages in
writing, giving the names of the owners, and whether nonresidents
of the state, infants, of unsound mind, or married women. Kentucky
Stat. § 836.
It is made the duty of the clerk of the court, upon
application
Page 196 U. S. 242
of the company, to issue process against the owners to show
cause why the report should not be confirmed, and make such orders
as to nonresidents and persons under disability as are required by
the Civil Code of Practice in actions against them in the circuit
court. Kentucky Stat. § 837.
At the first regular term, "after the owners shall have been
summoned the length of time prescribed by the Civil Code of
Practice before an answer is required," the court must examine the
report, and pass upon it. Kentucky Stat. § 838.
If exceptions are filed by either party, a jury must be
empaneled to try the issues of fact, and judgment rendered in
conformity to the verdict, if sufficient cause to the contrary be
not shown. Either party may appeal to the circuit court, the appeal
to be tried
de novo.
Upon the confirmation of the report of the commissioners or the
assessment of damages by the court, as provided, and the payment to
the owners of the amount due, as shown by the report of the
commissioners when confirmed, or as shown by the judgment of the
court when the damages are assessed by it, and all costs adjudged
to the owner, the railroad company becomes entitled to take
possession of the land and material, and to use the same for the
purpose for which it was condemned as fully as if the title had
been conveyed to it. But when an appeal is taken from the judgment
of the county court by the company, it is not entitled to take
possession of the land or material condemned until it pays into
court the damages assessed and all costs. Kentucky Stat. § 839.
The commissioners appointed by the county court in the above
proceeding awarded $100 as damages to be paid to the mining
company.
Process having issued, the mining company, before any action was
taken upon the report, filed its petition and bond for the removal
of the case into the circuit court of the United States, alleging,
among other things, that the value of the matter in dispute,
exclusive of interest and costs, exceeded $2,000. The petition for
removal distinctly alleged, as the
Page 196 U. S. 243
ground of removal, that the two companies were corporations of
different states.
The sufficiency of the bond was not disputed. But the county
court refused to recognize any right of removal, and the Kentucky
corporation was about to proceed in the prosecution of its case in
that court, despite the application for removal. Thereupon the
Delaware corporation filed in the circuit court of the United
States a complete transcript of the proceedings in the state
court.
Subsequently, the present original suit in equity was instituted
in the federal court by the mining company against the traction
company. The bill, repeating the allegations in the petition for
removal as to the diverse citizenship of the two corporations,
showed that, notwithstanding what had been done to have the cause
removed, from the state court, the traction company was about to
proceed to have the lands condemned in the case instituted in the
county court. Among other things, the bill alleged that plaintiff
denied the right of the traction company to have the lands in
question condemned, and averred that the report of the
commissioners was insufficient in law; that the commissioners acted
improperly, unfairly, and unfaithfully in their viewing of the
land, in the preparation of their report, and in awarding damages;
that $100 was wholly inadequate as compensation, and was assessed
and given under the influence of passion and prejudice, or some
other illegal motive; that the land sought to be taken was worth,
intrinsically, a great deal more than that amount; that the
incidental damages done to the property of plaintiff in the
construction of the road (which damages, under the laws of
Kentucky, the said commissioners should have taken into
consideration, and assessed, but did not, § 836) exceeded $2,000;
that the plaintiff's property and business will not be benefited in
the least degree by the construction or prudent operation of the
railroad, and that
"it is proposed to deprive it of over nine acres of its land,
which, through its location, is valued at and is worth over $2,500,
and is so situated that such
Page 196 U. S. 244
deprivation will irreparably injure and damage its remaining
land."
The relief asked in the present suit was that the traction
company be restrained and enjoined from further prosecuting the
case in the county court, or taking any further steps therein.
The traction company demurred to the bill, one of the grounds of
demurrer being that the circuit court was without jurisdiction or
authority, under the Constitution and laws of the United States, to
grant the injunction asked for, or any other relief. The circuit
court sustained its jurisdiction and overruled the demurrer. The
traction company stood by its demurrer, and a final decree was
entered, enjoining that company from any further prosecution of the
case in the county court.
It has been observed that the parties to the proceeding in the
county court are corporations, and therefore each is to be deemed,
for the purpose of suing and being sued in the federal court, a
citizen of the state by whose laws it was created. The questions
presented by the record are these: was the proceeding in the state
court a suit or controversy to which the judicial power of the
United States extends? If a suit or controversy, was it removable
to the circuit court of the United States? If removable, was it, in
law, removed, and was it competent for that court, after the
removal of the case, to enjoin the traction company from further
proceeding in the state court?
We recognize the importance of these questions, and have given
them the fullest consideration.
Certain principles, relating to the removal of cases, have been
settled by former adjudications. They are:
1. If a case be a removable one -- that is, if the suit, in its
nature, be one of which the circuit court could rightfully take
jurisdiction -- then, upon the filing of a petition for removal, in
due time, with a sufficient bond, the case is, in law, removed, and
the state court in which it is pending will lose jurisdiction to
proceed further, and all subsequent proceedings in that court will
be void.
Railroad Company v.
Mississippi, 102
Page 196 U. S. 245
U.S. 135,
102 U. S. 141;
Railroad v. Koontz, 104 U. S. 5,
104 U. S. 14;
Steamship Company v. Tugman, 106 U.
S. 118,
106 U. S. 122;
St. Paul & Chicago Ry. Co. v. McLean, 108 U.
S. 212,
108 U. S. 216;
Crehore v. Ohio &c. Railway Co., 131 U.
S. 240,
131 U. S. 243;
Kern v. Huidekoper, 103 U. S. 485,
103 U. S. 493;
Marshall v. Holmes, 141 U. S. 589,
141 U. S.
595.
2. After the presentation of a sufficient petition and bond to
the state court in a removable case, it is competent for the
circuit court, by a proceeding ancillary in its nature -- without
violating § 720 of the Revised Statutes, forbidding a court of the
United States from enjoining proceedings in a state court -- to
restrain the party against whom a cause has been legally removed
from taking further steps in the state court.
French
v. Hay, 22 Wall. 252;
Dietzsch v.
Huidekoper, 103 U. S. 494,
103 U. S.
496-497;
Moran v. Sturgess, 154 U.
S. 256,
154 U. S. 270.
See also Sargent v. Helton, 115
U. S. 352;
Harkrader v. Wadley, 172
U. S. 165;
Gates v. Bucki, 53 F. 969;
Texas
& Pacific Ry. Co. v. Kuteman, 54 F. 551;
In re
Whitelaw, 71 F. 733, 738;
Iron Mountain R. Co. v.
Memphis, 96 F. 131;
James v. Central Trust Co., 98 F.
489.
3. It is well settled that if, upon the face of the record,
including the petition for removal, a suit does not appear to be a
removable one, then the state court is not bound to surrender its
jurisdiction, and may proceed as if no application for removal had
been made.
Stone v. South Carolina, 117 U.
S. 430,
117 U. S. 432;
Carson v. Hyatt, 118 U. S. 279,
118 U. S. 281;
Burlington &c. Railway Co. v. Dunn, 122 U.
S. 513,
122 U. S.
515.
So that the fundamental question here is whether the case,
brought in the county court, was a removable one. If it was, then
the decree of the circuit court, restraining the traction company
from taking further steps in the local court after the removal of
the case to the federal court, was right; but if the case was not a
removable one, then the decree was erroneous.
The rule is now settled that, under the Judiciary Act of
1887-1888, a suit cannot be removed from a state court unless
Page 196 U. S. 246
it could have been brought originally in the circuit court of
the United States.
Tennessee v. Union & Planters'
Bank, 152 U. S. 454;
Mexican Nat. R. Co. v. Davidson, 157 U.
S. 201;
Metcalf v. Watertown, 128 U.
S. 586;
Minnesota v. Northern Securities Co.,
194 U. S. 48.
Why could not the proceeding instituted in the county court have
been brought originally in the federal court? The case, as made in
the county court, was, beyond question, a judicial proceeding; it
related to property rights; the parties are corporate citizens of
different states, and the value of the matter in dispute exceeded
the amount requisite to give jurisdiction to the circuit court. It
was therefore a proceeding embraced by the very words of the
Constitution of the United States, which declares that the
"judicial power shall extend . . . to controversies . . . between
citizens of different states," as well as by the act of 1887 (§ 1),
which declares
"that the circuit courts of the United States shall have
original cognizance, concurrent with the courts of the several
states, of all suits of a civil nature at common law or in equity
where the matter in dispute exceeds, exclusive of interest and
costs, the sum or value of $2,000, . . . in which there shall be a
controversy between citizens of different states."
In view of these explicit provisions, it is clear that the
proceeding in the county court was a suit or controversy within the
meaning both of the Constitution and of the Judiciary Act. We could
not hold otherwise without overruling former decisions of this
Court. Let us see whether this be not so.
Referring to the clause of the Constitution defining the
judicial power of the United States, Chief Justice Marshall,
speaking for the court in
Osborn v. Bank of the United
States, 9 Wheat. 738,
22 U. S. 819,
said:
"This clause enables the judicial department to receive
jurisdiction to the full extent of the Constitution, laws, and
treaties of the United States when any question respecting them
shall assume such a form that the judicial power is capable of
acting on it. That power is capable of acting only when the subject
is submitted to it by a party
Page 196 U. S. 247
who asserts his rights in the form prescribed by law. It then
becomes a case, and the Constitution declares that the judicial
power shall extend to all cases arising under the Constitution,
laws, and treaties of the United States."
In
Kohl v. United States, 91 U. S.
367,
91 U. S. 376,
which was a suit in the circuit court of the United States to
condemn lands for a public building, this Court, speaking by Mr.
Justice Strong, said:
"It is difficult then, to see why a proceeding to take land in
virtue of the government's eminent domain, and determining the
compensation to be made for it, is not, within the meaning of the
statutes, a suit at common law, when initiated in a court. It is an
attempt to enforce a legal right."
Two cases very much in point are
Boom Co. v. Patterson,
98 U. S. 403, and
Searl v. School District No. 2, 124 U.
S. 197.
Boom Co. v. Patterson was a case of condemnation under
a statute authorizing a county district court to appoint
commissioners to appraise the value of the property to be taken.
The local statute provided that, if the appraisement was not
satisfactory, the matter could be brought before the court, where
the issues of fact would be tried by a jury, unless a jury was
waived. It was a case of diverse citizenship, and, upon the
petition of the defendant, a citizen of another state, it was
removed from the inferior local court to the circuit court of the
United States. One question was whether the case was, in its
nature, excluded from the jurisdiction of the federal court.
Referring to the contention that the proceeding to take private
property for public use was an exercise by the State of its
sovereign right of eminent domain, and with its exercise the United
States, a separate sovereignty, had no right to interfere by any of
its departments, this Court, speaking by Mr. Justice Field,
said:
"But, notwithstanding the right is one that appertains to
sovereignty, when the sovereign power attaches conditions to its
exercise, the inquiry whether the conditions have been observed is
a proper matter for judicial cognizance. If that inquiry take the
form of a proceeding before the courts between parties -- the
owners of the land on, the one side, and
Page 196 U. S. 248
the company seeking the appropriation, on the other -- there is
a controversy which is subject to the ordinary incidents of a civil
suit, and its determination derogates in no respect from the
sovereignty of the state."
Again, in the same case:
"It has long been settled that a corporation will be treated,
where contracts or rights of property are to be enforced by or
against it, as a citizen of the state under the laws of which it is
created, within the clause of the Constitution extending the
judicial power of the United States, to controversies between
citizens of different states.
Paul v. Virginia, 8
Wall. 177. And in
Gaines v. Fuentes, 92 U. S.
20, it was held that a controversy between citizens is
involved in a suit whenever any property or claim of the parties,
capable of pecuniary estimation, is the subject of litigation and
is presented by the pleadings for judicial determination. Within
the meaning of these decisions, we think the case at bar was
properly transferred to the circuit court, and that it had
jurisdiction to determine the controversy."
Searl v. School District No. 2 was also a proceeding
for the condemnation of private property to public use for school
purposes. It was commenced by petition filed in a county court, a
subordinate tribunal of one of the counties of Colorado. The local
statute authorized the compensation to be fixed by a jury of six
freeholders, with a right of appeal. The question in the case was
as to the removability of the case from the county court to the
federal court. This Court, speaking by Mr. Justice Matthews,
said:
"Such a proceeding, according to the decision of this Court in
Kohl v. United States, 91 U. S. 367, is a suit at law
within the meaning of the Constitution of the United States and the
acts of Congress conferring jurisdiction upon the courts of the
United States."
After referring to prior cases, including
Boom Co. v.
Patterson, the opinion proceeds:
"The fact that the Colorado statute provides for the
ascertainment of damages by a commission of three freeholders
unless, at the hearing, a defendant shall demand a jury, does not
make the proceeding from its commencement any the
Page 196 U. S. 249
less a suit at law within the meaning of the Constitution and
acts of Congress and the previous decisions of the court. . . . It
is an adversary judicial proceeding from the beginning. The
appointment of commissioners to ascertain the compensation is only
one of the modes by which it is to be determined. The proceeding is
therefore a suit at law from the time of the filing of the petition
and the service of process upon the defendant."
124 U. S. 124
U.S. 199,
124 U. S. 200.
It will be observed from an examination of the
Searl
case that this Court cited with approval
Colorado Midland
Railway Co. v. Jones, 29 F. 193, and the
Mineral Range
Railroad Co. v. Detroit & Lake Superior Copper Co., 25 F.
515. Those cases fully sustain the proposition that the case
brought in the state court was a suit within the meaning of the
Constitution and the Judiciary Act.
In the first one named, which was a proceeding under a local
statute in an inferior state tribunal for the condemnation of lands
for the use of a railway company, MR. JUSTICE BREWER, then circuit
judge, after referring to the local statute under which the company
proceeded, and to
Boom Co. v. Patterson and
Searl v.
School District No. 2, held the case to be removable, although
the proceedings for condemnation were somewhat different from those
in an ordinary trial, saying:
"I do not suppose that a state can, by making special provisions
for the trial of any particular controversy, prevent the exercise
of the right of removal. If there was no statutory limitation, the
legislature could provide for the trial of many cases by less than
a common law jury, or in some other special way. But the fact that
it had made such different and special provisions would not make
the proceeding any the less a trial, or such a suit as, if between
citizens of two states, could not be removed to the federal courts.
If this were possible, then the only thing the legislature of a
state would have to do to destroy the right of removal entirely
would be to simply change and modify the details of procedure."
In
Mineral Range R. Co. v. Detroit & Lake Superior
Copper
Page 196 U. S. 250
Co., Mr. Justice Brown, then district judge, after
referring to
Boom Co. v. Patterson and many other adjudged
cases, said:
"But conceding that, if the only question in this case were the
amount of damages to be paid by the railroad company, the
jurisdiction of this Court would be sustained by the authorities
above cited, it is insisted that these cases are inapplicable,
because, by the statute of this state, the jury or commissioners
must pass upon the question of the necessity for taking the
property, as well as the amount of damages to be awarded. But we
think that, in this particular, counsel overlook the distinction
between the power to condemn, which confessedly resides in the
state, and proceedings to condemn, which the state has delegated to
its courts. The proceeding is certainly not deprived of its
character as a suit by reason of its taking cognizance of this
additional question, and, if it be a suit, the right of removal
attaches. Whenever a right is given by the law of a state, and the
courts of such state are invested with the power of enforcing such
right, the proceeding may be removed to a federal court if the
other requisites of removability exist."
25 F. 520.
In the more recent case of
Smith v. Adams, 130 U.
S. 167,
130 U. S. 173,
Mr. Justice Field, speaking for the Court and referring to the
clauses of the Constitution and the statutes relating to the
judicial power and the courts of the United States, said:
"By those terms are intended the claims or contentions of
litigants brought before the courts for adjudication by regular
proceedings established for the protection or enforcement of
rights, or the prevention, redress, or punishment of wrongs.
Whenever the claim or contention of a party takes such a form that
the judicial power is capable of acting upon it, then it has become
a case, or controversy."
It may be here said that the provisions of the local statutes of
condemnation, referred to in the above cases, are substantially the
same as those in the Kentucky statutes.
We cannot doubt, in view of the authorities, that the case
presented in the county court was a "suit" or "controversy
Page 196 U. S. 251
between citizens of different states," within the meaning of the
Constitution and the laws of the United States. It was, as already
said, a judicial proceeding initiated in a tribunal which
constitutes a part of the judicial establishment of Kentucky, as
ordained by its Constitution, Const.Kentucky, § 140, and the court,
although charged with some duties of an administrative character,
is a judicial tribunal and a court of record.
Fletcher v.
Leight, 4 Bush 303;
Pennington v. Woolfolk, 79 Ky.
13.
Are the above cases inapplicable by reason of their having been
decided prior to the passage of the Judiciary Acts of 1887-1888,
limiting the right of removal to suits of which the circuit courts
of the United States could take original cognizance? Clearly not.
The difference between that act and the act of 1875 is wholly apart
from the present discussion, for both acts gave the circuit courts
original jurisdiction of all suits having the requisite
amount in dispute, and in which there was a controversy between
citizens of different states. So that what was a suit or
controversy to which, by reason of diverse citizenship, the
judicial power of the United States extended under the act of 1875,
must be deemed a suit under the acts of 1887-1888. The only effect
of the latter act, so far as the present question is concerned, was
to restrict the right of removal from the state court to cases of
which the circuit court could take original cognizance. And the
present case, being a suit involving a controversy between citizens
of different states, is manifestly of that character.
It is said, however, that when it is proposed to take private
property for public purposes, the question of appropriation is one
primarily and exclusively for the state to determine.
There ought not to be any dispute at this day in reference to
the principles which must control in all cases of the condemnation
of private property for public purposes. It is fundamental in
American jurisprudence that private property cannot be taken by the
government, national or state, except for purposes which are of a
public character, although such
Page 196 U. S. 252
taking be accompanied by compensation to the owner. That
principle, this Court has said, grows out of the essential nature
of all free governments.
Loan Association v.
Topeka, 20 Wall. 655;
Cole v. La Grange,
113 U. S. 1,
113 U. S. 6. If
the purpose be public, the taking may be outright, provided
reasonable, certain, and adequate provision is made at the time of
appropriation, to ascertain and secure the compensation to be made
to the owner.
Cherokee Nation v. Southern Kansas Railway
Co., 135 U. S. 641,
135 U. S. 659;
Sweet v. Rechel, 159 U. S. 380,
159 U. S. 399;
Western Union Tel. Co. v. Pennsylvania R. Co.,
195 U. S. 540. Any
state enactment in violation of these principles is inconsistent
with the due process of law prescribed by the Fourteenth Amendment.
C., B. & Q. R. Co. v. Chicago, 166 U.
S. 226;
San Diego Land &c. Co. v. National
City, 174 U. S. 739,
174 U. S. 754;
Smyth v. Ames, 169 U. S. 466,
169 U. S. 525.
The position taken by the highest court of Kentucky on this general
subject appears from
Tracy v. Elizabethtown &c. R.
Co., 80 Ky. 259, 269. It was there said:
"It is erroneous to suppose that the legislature is beyond the
control of the courts in exercising the power of eminent domain,
either as to the nature of the use or the necessity to the use of
any particular property. For if the use be not public, or no
necessity for the taking exists, the legislature cannot authorize
the taking of private property against the will of the owner,
notwithstanding compensation may be required."
Speaking generally, it is for the state, primarily and
exclusively, to declare for what local public purposes private
property within its limits may be taken upon compensation to the
owner, as well as to prescribe a mode in which it may be condemned
and taken. But the state may not prescribe any mode of taking
private property for a public purpose, and of ascertaining the
compensation to be made therefor, which would exclude from the
jurisdiction of a circuit court of the United States a condemnation
proceeding which, in its essential features, is a suit involving a
controversy between citizens of different states. "A state cannot,"
this Court has said,
Page 196 U. S. 253
"tie up a citizen of another state, having property rights
within its territory invaded by unauthorized acts of its own
officers, to suits for redress in its own courts."
Reagan v. Farmers' Loan & Trust Co., 154 U.
S. 362,
154 U. S.
391.
Now it is true that the circuit court could not have the
property in question condemned for local public purposes if the
state had not previously, by statute, authorized its condemnation.
After the removal of a case of condemnation from a state court, the
federal court would proceed under the sanction of state
legislation. It would enforce the state law unless that law
authorized the appropriation of private property for purposes that
were not really of a public nature. So far as authority to take the
property for local public purposes was concerned, the circuit court
could not enforce any other than the state law. It would respect
the sovereign power of the state to define the legitimate public
purposes for which private property may be taken, upon compensation
to the owner being made or secured. But, at the same time, it could
enforce, as, of course, it must, the authority of the supreme law
of the land, which expressly extends the judicial power of the
United States to all suits involving controversies between citizens
of different states, and which also, by statute, gives the circuit
courts of the United States, without qualification, jurisdiction of
such controversies. A state cannot, by any statutory provisions,
withdraw from the cognizance of the federal courts a suit or
judicial proceeding in which there is such a controversy.
Otherwise, the purpose of the Constitution in extending the
judicial power of the United States to controversies between
citizens of different states would thereby be defeated. If the
Judiciary Act of Congress admitted of the case in the county court
being brought within the original cognizance of the circuit court,
that is an end of the matter, although it be a case of the
appropriation of private property to public uses under the
authority of the state. Under any other view, a state, by its own
tribunals, could deprive citizens of other states of their property
by condemnation,
Page 196 U. S. 254
without giving them an opportunity to protect themselves, in a
national court, against local prejudice and influence.
It may, however, be urged that the Delaware corporation can be
fully protected by the state court in its rights of property,
because, if any federal right be denied it, the authority of this
Court can be invoked upon writ of error to the highest court of the
state. But the question whether the property is authorized by the
local statute to be condemned, as well as the question of the
amount of compensation to the owner, could not come here by writ of
error from the state court. Such questions would not ordinarily
involve a federal right. In the present case, the commissioners
reported the damages to be only $100, whereas the owner alleges
that the amount awarded was grossly inadequate, practically
confiscatory. That question, as well as the question whether the
statute authorized the traction company to take the property, the
Delaware corporation is constitutionally entitled, as between it
and the Kentucky corporation, by reasons of the diverse citizenship
of the parties, to have determined upon their merits in a court of
the United States, in which, presumably, it will be protected
against local prejudice or influence. The circuit court,
recognizing the right of the traction company to appropriate the
land in question, if necessary for its purposes, could do all that
is required by the Kentucky statute, and meet fully the ends of
justice. Besides, a court always looks to substance, and not to
mere forms. Mere forms are not of vital consequence in cases of
condemnation.
Kohl v. United States, 91 U. S.
367,
91 U. S. 375;
United States v. Jones, 109 U. S. 514,
109 U. S.
519.
It is suggested that the state legislature might have
consummated the taking of the property of the Delaware corporation
by means of a nonjudicial tribunal, and thus left open simply the
question of compensation to the owner of the property taken.
We do not perceive that this suggestion is at all material in
the present discussion, for the state has
Page 196 U. S. 255
chosen to provide for the taking by means of what is conceded to
be a suit in one of its judicial tribunals. It is in effect
conceded that the circuit court may be given jurisdiction of the
question of compensation. But the contention is that in no case can
the judicial power of the United States be invoked until the
question of taking is consummated by a proceeding in the particular
local tribunal designated by the state. This view, it is supposed,
finds support in the cases in which it has been held that an
original suit directly against a state, or a suit against an
officer of the state, which, by reason of the particular relief
sought is in effect a suit against the state may be limited by the
state to suits brought in one of its own courts.
Smith v.
Reeves, 178 U. S. 436.
This illustration is wide of the mark, for the mandate of the
Constitution of the United States (Eleventh Amendment) is that
"the judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or
by citizens or subjects of any foreign state,"
whereas, the judicial power of the United States and the
original jurisdiction of the circuit courts, whatever may be
ordained by state legislation, extends to suits in which there is a
controversy between citizens of different states. The exercise by
the circuit courts of the United States of the jurisdiction thus
conferred upon them is pursuant to the supreme law of the land, and
will not in any proper sense entrench upon the dignity, authority,
or autonomy of the states, for each state, by accepting the
Constitution, has agreed that the courts of the United States may
exert whatever judicial power can be constitutionally conferred
upon them. In the exercise of that power, a circuit court of the
United States, sitting within the limits of a state and having
jurisdiction of the parties is, for every practical purpose, a
court of that state. Its function under such circumstances is to
enforce the rights of parties according to the law of the state,
taking care always, as the state courts must take care, not to
infringe any right secured by the Constitution and the
Page 196 U. S. 256
laws of the United States. It should, however, be remarked that
there is nothing in the Kentucky statute which indicates any
purpose on the part of the legislature of that commonwealth to fly
in the face of the above cases or to evade the principles announced
in them. It is not to be implied from the statute in question that
the state intended to exclude, or supposed that it could exclude,
from the federal courts jurisdiction of any suit to which the
judicial power of the United States extended.
It was said that, if the case was a removable one, the time for
removal was after it was taken by appeal to the state circuit
court, where it could be tried
de novo. There is nothing
in the acts of 1887-1888 which sustains this view. Was the case, as
it was in the county court, a suit in which there was a controversy
between corporations of different states? If so, the right of
removal was perfect under the acts of 1887-1888. Under the Kentucky
statute, the condemning party was entitled, even after appeal to
the circuit court, to pay into court the damages assessed in the
county court, and, before the case was concluded in the circuit
court, to take possession of the land, and oust the owner. Kentucky
Stat. § 839; 80 Ky. 259, 269. Clearly the owner was not bound to
wait until the proceedings in the county court were concluded, or
until he was put out of possession, before exercising his right of
removal, if the case was a removable one.
We hold that, as the proceeding in the county court was a suit
involving a controversy between corporate citizens of different
states, it was one of which the circuit court of the United States
could have taken original cognizance, under the Judiciary Act, and
it was therefore a removable case. And, being a removable case, it
is to be regarded as having been removed upon the filing of the
petition and accompanying bond for removal, in which event it was
competent for the circuit court, having thus acquired jurisdiction
of the subject matter and of the parties, to enjoin the traction
company from proceeding further in the state court.
Page 196 U. S. 257
For the reasons stated, the decree of the circuit court awarding
the injunction must be affirmed.
It is so ordered.
MR. JUSTICE HOLMES, dissenting:
I regret that I am unable to agree with the decision of the
Court. The question on which I differ is whether a proceeding for
the taking of land by eminent domain, authorized by the State of
Kentucky to be begun in the courts of Kentucky, can be begun in the
circuit court of the United States whenever one of the parties is a
citizen of another state. Of course I am speaking of the proceeding
for the taking of the land, not of that for compensation, to which
I shall refer later. The argument which does not command my assent,
stated in a few words, is that such a proceeding in such a case is
a controversy between citizens of different states, and therefore,
by the very words of the Constitution, must be within the
jurisdiction of the United States courts. It seems to me that this
is rather too literal a reading, and, on the whole, is a sacrifice
of substance to form.
The fundamental fact is that eminent domain is a prerogative of
the state which, on the one hand, may be exercised in any way that
the state thinks fit, and, on the other, may not be exercised
except by an authority which the state confers. The taking may be
direct, by an act of the legislature. It may be delegated to a
railroad company, with a certain latitude of choice with regard to
the land to be appropriated. It may be delegated subject to the
approval of a legislative committee or of a board other than a
court. When the state makes use of a court, instead, for instance,
of a railroad commission, the character of the proceeding is not
changed. The matter still is wholly within its sovereign control.
The state may intervene after the proceedings have been begun, and
take the land. It may direct the entry of a decree of condemnation.
An illustration of its continuing power may be seen in
In re
Northampton,
Page 196 U. S. 258
158 Mass. 299. The matter of grade crossings had been referred
by the Legislature of Massachusetts to the courts, and a petition
was pending for the abolition of certain grade crossings in
Northampton. The case had been sent to commissioners, and they had
reported. Pending a motion to confirm their report, the legislature
passed an act forbidding a change in that case without the consent
of the city council. It was held that, as the whole subject was
originally within the control of the legislature, it did not cease
to be so by being referred to the courts, and the act was
sustained.
A further illustration, and one in which substance has prevailed
over form, is to be found in the case of suits by citizens of
another state against officers of a state. In form, such suits are
controversies between citizens of different states, and within the
jurisdiction of the United States courts. But if, in substance,
they have the effect of suits against a state, the jurisdiction is
denied. And the decisions do not stop there, but when the state has
waived its immunity, as it may, and has given permission to a suit
against the officer in a state court, it still is held that,
although there is a controversy between citizens of different
states which thus has become subject to litigation, that litigation
must be confined to the courts which the state has named. Yet there
is no doubt that, with the state's consent, its officers, or the
state itself, could be sued in the courts of the United States.
Smith v. Reeves, 178 U. S. 436;
Chandler v. Dix, 194 U. S. 590.
It seems to me that, if a state authorizes a taking to be
accomplished by certain machinery, the United States has no
constitutional right to intervene and to substitute other machinery
because the state has chosen to use its law courts, rather than a
legislative committee, and thus to give to the exercise of its
sovereign power the external form of a suit at law. It seems to me
plain that the exercise of that power depends wholly on the state,
may be limited as the state chooses, and cannot be carried further
than the state has authorized in terms. Suppose that a proceeding
for taking land is removed
Page 196 U. S. 259
to the United States court, contrary to the legislation of the
state -- by whose authority, I ask myself, is a subsequent taking
to be decreed? It is open to anyone who can think it to say that
the attempt to use the state courts to the exclusion of the United
States courts makes the taking void, but I cannot understand how a
taking unauthorized by the state can be good. If I am right in
supposing that the state has an absolute right to limit the
exercise of eminent domain as it sees fit, then, so far as the
construction of the Kentucky statute is concerned, I need only
invoke the cases last cited, to show that the statute imports that
the state meant to confine the proceedings to it own courts.
Certainly it does not purport to authorize them elsewhere, and that
is enough.
Smith v. Reeves, 178 U.
S. 436,
178 U. S. 445;
Chandler v. Dix, 194 U. S. 590,
194 U. S. 592.
The difference between myself and the majority is not merely on the
construction of the Kentucky statutes. If that were all, I should
not express my dissent. But the difference as to construction is a
consequence and incident of a difference on the far more important
question of power. Of course, what I have said is without prejudice
to the possibility that, in case a question of rights under the
Constitution of the United States should arise and be carried to
the highest court of the state, it might be brought here by writ of
error, as was said by MR. JUSTICE HARLAN in
Smith v.
Reeves. I do not go into that, as it is immaterial now.
It is said that the question which I am discussing has been
settled by the adjudications of this Court. I do not think so. The
only cases that have any bearing are
Boom Co. v.
Patterson, 98 U. S. 403, and
Searl v. School District No. 2, 124 U.
S. 197. In the former of these cases, Mr. Justice Field
states in the most explicit way that, at the state the case had
reached when it was removed from the state court, the compensation
to be paid the owner of the land was the only question open. I have
no criticism to make on that case. It seems to me to favor my views
throughout. I think it very possible that, after the title to
property has been taken, if the question of compensation
Page 196 U. S. 260
still is unsettled, that may be a controversy within the meaning
of the Constitution. The sovereign power of the state is at an end,
and the former owner has a right, under the Fourteenth Amendment of
the Constitution of the United States, to get his pay.
Boom Co. v. Patterson was followed by
Searl v.
School District No. 2, seemingly without noticing the
distinction that, in the latter case, the property had not yet been
appropriated. There was no serious reasoning in the case, and I
should think it a most inadequate justification for trenching upon
the powers of the states, even if it were strictly in point. It
arose, however, under the former statute as to removals, which did
not limit them to cases which could have been begun in the United
States courts. Whether I should think that a sufficient distinction
if that case were before me now, I shall not consider, but I feel
warranted in believing that no one who took part in that decision
imagined that he was establishing the doctrine now laid down or any
principle broad enough to cover the present case. I cannot think
that even Mr. Justice Matthews would have denied that, the day
after removal, the state could have withdrawn the power to condemn
the land, and left the court in the air, or could have condemned
the land pending the proceedings without paying them the slightest
regard. If the state did retain those powers, I think it no less
retained the
delectus personarum and the right to confine
its authority, while it left it outstanding, to the persons of its
choice.
I wish to add only that I am not aware of any limitations in the
Constitution of the United States upon a state's power to condemn
land within its borders except the requirements as to compensation.
All that was decided in
Loan Association v.
Topeka, 20 Wall. 655, and
Cole v.
LaGrange, 113 U. S. 1, was
that the constitutions of certain states did not authorize the
taking of private property for a private use. But if those
decisions had been rested on the Fourteenth Amendment, which they
were not, and in my opinion could not have been,
Page 196 U. S. 261
I do not perceive that they have any bearing upon what I have
said or upon the case at bar.
I am authorized to say that the CHIEF JUSTICE, MR. JUSTICE
BREWER, and MR. JUSTICE PECKHAM concur in this dissent.