1. A petition for a mandamus was filed in one of her courts by
the State of Mississippi to compel a railroad company, a
corporation existing under the laws of that State, to remove a
stationary bridge which it had erected over Pearl River, a
navigable stream on the line between Louisiana and Mississippi.
Thereupon the company presented its petition, duly verified,
praying for the removal of the suit into the circuit court of the
United States, and alleging that the right to erect, use, and
maintain the bridge was vested by the company's charter; that its
maintenance over said river was authorized by the Act of Congress
approved March 2, 1868, 15 Stat. 38; that thereunder it became a
part of a post road over which for several years the mails of the
United States have been carried, and that therefore the suit
impugns the rights, privileges, and franchises granted by said act.
The petition was accompanied by a bond with good and sufficient
security, conditioned as required by the Act of March 3, 1875. 18
Stat. part 3, p. 471.
Held that under the latter act, the
company was entitled to the removal prayed for.
2. The decisions of this Court affirming the jurisdiction of the
courts of the United States in cases arising under the laws of the
United States, or where a state is a party, cited and commented
on.
3. The ruling in
Insurance Company v.
Dunn, 19 Wall. 214, and
Removal Cases,
100 U. S. 457,
that a party loses none of his rights who, after failing to obtain
its removal, contests a suit on its merits in the state court,
reaffirmed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The plaintiff in error, defendant below, filed a petition in the
state court of original jurisdiction for the removal of this suit
into the Circuit Court of the United States for the Southern
District of Mississippi. The petition was accompanied by a bond,
with good and sufficient surety, conditioned as required by the
statute. The application for removal was denied, and the court,
against the protest of the company, proceeded with the trial of the
suit. A demurrer to the answer was sustained, and judgment was
entered in behalf of the State. Upon a writ of error, sued out by
the company, the Supreme Court of
Page 102 U. S. 136
Mississippi gave its sanction to the action of the inferior
court upon the petition for removal, and affirmed, in all respects,
its judgment upon the merits.
The first assignment of error relates to the action of the state
court in proceeding with the trial after the filing of the petition
and bond for removal of the suit. If the suit was one which the
company was entitled, under the statute, to have removed into the
circuit court of the United States, then all that occurred in the
state court, after the filing of the petition and bond, was in the
face of the act of Congress.
Gordon v.
Longest, 16 Pet. 97;
Kanouse v.
Martin, 15 How. 198;
Insurance
Company v. Dunn, 19 Wall. 214. Its duty, by the
express command of the statute, was, the suit being removable, to
accept the petition and bond, and proceed no further.
Among the cases to which the national Constitution extends the
judicial power of the United States are those arising under the
Constitution or laws of the Union. The first section of the Act of
March 3, 1875, determining the jurisdiction of circuit courts of
the United States, and regulating the removal of causes from state
courts, invests such circuit courts with original jurisdiction,
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 costs, the sum or value of $500, and
"arising under the Constitution or laws of the United States."
Under the second section of that act, either party to a suit of the
character just described may remove it into the circuit court of
the United States for the proper district. The only inquiry,
therefore, upon this branch of the case is whether the present
suit, looking to its nature and object as disclosed by the record,
is, in the sense of the Constitution or within the meaning of the
act of 1875, one "arising under the Constitution or laws of the
United States."
The action was commenced by a petition filed, in behalf of the
state, against the New Orleans, Mobile, and Chattanooga Railroad
Company (now known as the New Orleans, Mobile, and Texas Railroad
Company), a corporation created in the year 1866, under the laws of
Alabama, and by an act of the Legislature of Mississippi, passed
Feb. 7, 1867, recognized and approved as a body politic and
corporate in that state, with
Page 102 U. S. 137
authority to exercise therein the rights, powers, privileges,
and franchises granted to it by the State of Alabama.
The object of the action was to obtain a peremptory writ of
mandamus, requiring the company to remove a stationary bridge which
it had erected across Pearl River, on the line between Louisiana
and Mississippi, and construct and maintain, in the central portion
of the channel of that river, where the railroad crosses, a
drawbridge which, when open, will give a clear space, for the
passage of vessels, of not less than sixty feet in width, and
provide, after its construction, for the opening of the drawbridge,
without unnecessary delay, for any and all vessels seeking to pass
through it.
The claim of the state is:
1. That the construction and maintenance of a stationary bridge
across Pearl River is in violation of the company's charter, an
obstruction to the navigation of the river, and a public nuisance,
resulting in great and irreparable damage to the people of
Mississippi.
2. That Pearl River, by the common law and the law of nations,
is a navigable river, in which the tide ebbs and flows above said
bridge, is navigable for steamboats for more than two hundred
miles, and has been so navigated from time immemorial; that the
river is the boundary between Mississippi and Louisiana, neither of
those states having power to authorize any obstruction to its free
navigation; that by an act of Congress, entitled
"An Act to enable the people of the western part of Mississippi
Territory to form a constitution and state government, and for the
admission of said state into the Union on an equal footing with the
original states,"
passed March 1, 1817, it was, among other things, provided
"That the Mississippi River and the navigable rivers and waters
leading into the same, or into the Gulf of Mexico, shall be common
highways and for ever free, as well to the inhabitants of said
state as to other citizens of the United States;"
that those provisions constituted a condition on which the State
of Mississippi was admitted into the Union, and an engagement on
the part of the United States that all the navigable rivers and
waters emptying into the Gulf of Mexico should for ever be free to
all the inhabitants of the State of Mississippi; that Pearl River
does lead and empty
Page 102 U. S. 138
into the Gulf of Mexico; that the bridge is such an obstruction
to the navigation of Pearl River as to cause permanent injury, as
well to the State of Mississippi and its inhabitants, as to the
commerce of the United States and of the world, and, consequently,
was in violation of the law.
The company resists the application for a mandamus, upon several
grounds.
It affirms that the bridge in question had been constructed and
is maintained in accordance with its charter and conformably to the
power and authority conferred by the States of Alabama,
Mississippi, and Louisiana.
It further avers in its answer that the railroad is a great
public highway through those states, connecting them with other
portions of the United States; that Congress, in view of the
magnitude and cost of the work, and to expedite its construction,
by an act entitled
"An Act to establish and declare the railroad and bridges of the
New Orleans, Mobile, and Chattanooga Railroad, as hereafter
constructed, a post road, and for other purposes,"
approved March 2, 1868, authorized and empowered that
corporation to construct, build, and maintain bridges over and
across the navigable waters of the United States on the route of
said railroad, between New Orleans and Mobile, for the use of the
company and the passage of its engines, cars, trains of cars,
mails, passengers, and merchandise, and that the railroad and its
bridges, when complete and in use, were to be held and deemed
lawful structures and a post road; that the act of Congress
required drawbridges on the Pascagoula, the Bay of Beloxi, the Bay
of St. Louis, and the Great Rigolet, but none on Pearl River, power
being reserved by Congress to amend or alter the act so as to
prevent or remove material obstructions; that the company is
authorized to maintain the bridge in question under that act of
Congress; that the same is a lawful structure and a post road,
which no court can, consistently with the act of Congress, overturn
or abate as illegal or as a nuisance.
On the day succeeding that on which its answer was filed, the
company presented the petition for removal, to which reference has
already been made, accompanied by a bond in proper form. That
petition sets out the nature and object of the action, and claims
that the right to erect and to maintain the
Page 102 U. S. 139
present bridge for the conveyance of the cars, trains,
passengers, mails, and merchandise, vested in the company,
"on a contract with the State of Mississippi in the enactment
aforesaid; that the State of Mississippi has no power to repudiate
that contract or to impair its obligations; that it is a vested
right resting on a contract and supported and sustained by the
Constitution of the United States, and that this cause is one
arising under the Constitution of the United States."
It then proceeds:
"And your petitioner further represents that the bridge
aforesaid, and its maintenance over the said river in the manner in
which it exists, is authorized by the Act of Congress approved
March 2, 1868, which authorized and empowered the said company to
construct, build, and maintain bridges over and across the
navigable waters of the United States on the route of the said
railroad between Mobile and New Orleans, and that when constructed
they should be recognized as lawful structures and a post road, and
were declared to be such; and the Congress reserved the power to
alter the same when they become an obstruction to the navigable
waters."
"Your petitioner says that the railroad and bridges are and have
been for three of more years a post road, over which the mails of
the United States have been carried and are now being carried, and
as the bridge referred to is a lawful structure under the laws of
the United States, this suit impugns the rights, privileges, and
franchises granted by the act of Congress aforesaid of the 2d
March, 1868."
From this analysis of the pleadings, and of the petition for
removal, it will be observed that the contention of the state
rests, in part, upon the ground that the construction and
maintenance of the bridge in question is in violation of the
condition on which Mississippi was admitted into the Union, and
inconsistent with the engagement, on the part of the United States,
as expressed in the act of March 1, 1817. On the other hand, the
railroad company, in support of its right to construct and maintain
the present bridge across Pearl River, invokes the protection of
the act of Congress passed March 2, 1868. While the case raises
questions which may involve the construction of state enactments,
and also, perhaps, general principles of law,
Page 102 U. S. 140
not necessarily connected with any federal question, the suit
otherwise presents a real and substantial dispute or controversy
which depends altogether upon the construction and effect of an act
of Congress. If it be insisted that the claim of the state, as set
out in its petition, might, possibly, be determined by reference
alone to state enactments, and without any construction of the act
of 1817, the provisions of which are invoked by the state in
support of its application for mandamus, the important, and, so far
as the defense is concerned, the fundamental, question would still
remain, as to the construction of the Act of Congress of March 2,
1868. That act, the company contends, protects the present
stationary bridge against all interference whatever, upon the part
either of the state or of the courts. In other words, should the
court be of opinion that the law is for the state, if the rights of
parties were tested simply by the statutes of Alabama and
Mississippi, it could not evade, but must meet and determine, the
question, distinctly raised by the answer, as to the operation and
effect of the act of Congress of 1868.
Is it not, then, plainly a case which, in the sense of the
Constitution, and of the statute of 1875, arises under the laws of
the United States?
If regard be had to the former adjudications of this Court, this
question must be answered in the affirmative.
It is settled law, as established by well considered decisions
of this Court, pronounced upon full argument and after mature
deliberation, notably in
Cohens v.
Virginia, 6 Wheat. 264;
Osborn v.
Bank of the United States, 9 Wheat. 738;
Mayor v.
Cooper, 6 Wall. 247;
Gold-Washing & Water
Company v. Keyes, 96 U. S. 199; and
Tennessee v. Davis, 100 U. S. 257.
That while the Eleventh Amendment of the National Constitution
excludes the judicial power of the United States from suits, in law
or equity, commenced or prosecuted against one of the United States
by citizens of another state, such power is extended by the
Constitution to suits commenced or prosecuted by a state against an
individual, in which the latter demands nothing from the former,
but only seeks the protection of the Constitution and laws of the
United States against the claim or demand of the state;
Page 102 U. S. 141
That a case in law or equity consists of the right of one party,
as well as of the other, and may, properly, be said to arise under
the Constitution or a law of the United States, whenever its
correct decision depends on the construction of either;
That cases, arising under the laws of the United States are such
as grow out of the legislation of Congress, whether they constitute
the right or privilege, or claim, or protection, or defense of the
party, in whole or in part, by whom they are asserted;
That except in the cases of which this Court is given, by the
Constitution, original jurisdiction, the judicial power of the
United States is to be exercised in its original or appellate form,
or both, as the wisdom of Congress may direct; and lastly,
That it is not sufficient to exclude the judicial power of the
United States from a particular case, that it involves questions
which do not at all depend on the Constitution or laws of the
United States; but when a question to which the judicial power of
the Union is extended by the Constitution forms an ingredient of
the original cause, it is within the power of Congress to give the
circuit courts jurisdiction of that cause, although other questions
of fact or of law may be involved in it.
These propositions, now too firmly established to admit of, or
to require, further discussion, embrace the present case, and show
that, whether we look to the federal question raised by the state
in its original petition, or to the federal question raised by the
company in its answer, the inferior state court erred, as well in
not accepting the petition and bond for the removal of the suit to
the circuit court of the United States, as in thereafter proceeding
to hear the cause. It was entirely without jurisdiction to proceed
after the presentation of the petition and bond for removal.
In view of our decisions in
Insurance Company v.
Dunn, 19 Wall. 214, in
Removal Cases,
100 U. S. 457, and
in other cases, it is scarcely necessary to say that the railroad
company did not lose its right to raise this question of
jurisdiction by contesting the case, upon the merits, in the state
courts after
Page 102 U. S. 142
its application for the removal of the suit had been
disregarded. It remained in the state court under protest as to the
right of that court to proceed further in the suit, and there is
nothing in the record to show that it waived its right to have the
case removed to the federal court, and consented to proceed in the
state court, as if there had been no petition and bond for the
removal.
The judgment of the Supreme Court of Mississippi will,
therefore, be reversed, and the cause remanded for such orders as
may be consistent with this opinion, and with directions that the
court of original jurisdiction be required to set aside all
judgments and orders made in this suit after the presentation of
the petition and bond for its removal into the circuit court of the
United States, and proceed no further in the suit; and it is
So ordered.
MR. JUSTICE FIELD did not sit in this case, nor take part in
deciding it.
MR. JUSTICE MILLER dissenting.
I dissent from the opinion of the court in this case. It is
always a matter of delicacy when a cause of which a court has
undoubted jurisdiction is transferred, at the instance of one
party, to another court of concurrent jurisdiction. It is
especially so when the transfer is to be made to a federal from a
state court, without regard to the consent of the latter, and
against the objection of the other party.
In such a case the right of removal should be made very clear on
the application for that purpose. And when the application has been
refused, and the state courts, up to the highest to which the cause
can be carried, have considered and decided it upon its merits, the
judgment finally rendered should not be treated as a nullity,
unless the case upon which the want of jurisdiction of these courts
depends is made very plain indeed.
I do not think such a case is presented here.
The removal is based upon the second section of the Act of
Congress of March 3, 1875, "to determine the jurisdiction
Page 102 U. S. 143
of circuit courts of the United States, and to regulate the
removal of causes from, state courts, and for other purposes." This
enacts
"That any suit of a civil nature, at law or in equity, now
pending or hereafter brought in any state court, where the matter
in dispute exceeds, exclusive of costs, the sum or value of $500,
and arising under the Constitution or laws of the United States, or
treaties made, or which shall be made, under their authority,"
may be removed by either party, on proper showing, to the
circuit court of the United States. The decision is that this is a
suit arising under a law of the United States, to wit, the act of
Congress concerning the bridge of which plaintiff complains. I make
no captious criticism by reason of the fact that the opinion of the
court is mainly directed to the constitutional provision extending
the judicial power of the United States to cases arising under that
instrument and the laws and treaties made under its authority,
while the word used in the statute is suits. The language of the
Constitution may be broad enough to sustain a statute which
authorizes the removal of a cause at any stage when a case is made,
which, taken as a whole, requires a judgment based upon the
Constitution, a law, or a treaty of the United States.
The act of 1875 is the first which ever attempted to give a
right of removal on such ground, and it limits that right to suits
arising under the Constitution, laws, or treaties of the United
States. It does not give the right of removal where the defense
arises under such a law, unless "suit" necessarily includes the
defense which may be made thereto. The lexicons do not so define
it. Bouvier's Law Dictionary says that in the practice of the law
"suit" means "an action." Can a defense to an action be called the
action? No more can the defense to a suit be called the suit.
Webster says "suit" is the act of suing; the process by which one
gains an end or object, and as a word in the law, he says it is "an
attempt to gain an end by legal process;" "a legal application to a
court for justice;" "an action or process for the recovery of a
right of action." Does this mean the defense to an alleged right of
action? Can it be held to mean the attempt to defeat an action?
Worcester defines it thus: "In modern law, the prosecution
Page 102 U. S. 144
of some claim or demand in a court of justice; judicial
prosecution," and perhaps this is as good a definition of the word,
when used in reference to legal proceedings, as any that can be
framed, and it is peculiarly applicable to the use of the word in
the act of 1875.
In
Weston v. The City of
Charleston, 2 Pet. 449, Mr. Chief Justice Marshall,
in delivering the opinion of the Court, conceding the term to be a
very comprehensive one, says it applies "to any proceeding in a
court of justice by which an individual
pursues that
remedy in a court of justice which the law affords him."
Taking the idea of a "suit" as thus defined, what is meant by
the suit
arising under a law of Congress? The obvious
answer seems to be that the
cause of action is founded on
the act of Congress; that the
remedy sought is one given
by an act of Congress; that the
relief which is prayed is
a relief
dependent on an act of Congress; that the right
to be enforced in the suit is a right which rests upon an act of
Congress. In all this I see no place for holding that a
defense to a suit not so founded on an act of Congress, or
a plea which the defendant may interpose to any ordinary action,
though that plea be founded on an act of Congress, is a suit
arising under an act of Congress.
Looking also to the reasons which may have influenced Congress,
it may well be supposed that while that body intended to allow the
removal of a suit where the very foundation and support thereof was
a law of the United States, it did not intend to authorize a
removal where the cause of action depended solely on the law of the
state, and when the act of Congress only came in question
incidentally as part (it might be a very small part) of the
defendant's plea in avoidance. In support of this view, it may be
added that he in such case is not without remedy in a federal
court; for if he has pleaded and relied on such defense in the
state court, and that court has decided against him in regard to
it, he can remove the case into this Court by writ of error, and
have the question he has thus raised decided here.