1. A petition for the removal of a suit from a state court to a
federal court is insufficient unless it sets forth in due form,
such as is required in good pleading, the essential facts not
otherwise appearing in the case which, under the act of Congress,
are conditions precedent to the change of jurisdiction.
2. A suit cannot be so removed, under the second section of the
act of March 3, 1875, 18 Stat. 475, simply because in its progress
a construction of the Constitution or a law of the United States
may be necessary unless it, in part at least, arises out of a
controversy in regard to the operation and effect of some provision
in that Constitution or law upon the facts involved.
3. As important questions of practice are likely to arise under
that act, this decision is to be considered as conclusive only upon
the question directly involved and decided.
This was a suit in the nature of a bill in equity, commenced
July 29, 1876, in a state court of California by Keyes, the owner
of certain agricultural lands situated on Bear River, against the
Little York Gold Washing and Water Company and others, the
plaintiffs in error, who were engaged in hydraulic mining upon the
highlands adjacent to that river and its tributaries, to restrain
them from depositing the tailings and debris from their several
mines in the channel of the river. The defendants demurred to the
complaint and, before the term at which the cause could be first
tried, filed their petition, accompanied by the necessary bond, for
the removal of the suit to the Circuit Court of the United States
for the District of California, under the provisions of the Act of
March 3, 1875, 18 Stat. 470. The material parts of the petition,
which was otherwise in due form, are as follows:
"Your petitioners further represent that they are the owners of
certain extensive and valuable gold-bearing placer mines, situated
in the Counties of Placer and Nevada, in said State of California,
which they claim under the laws of the United States, and are
engaged in working the same by what is known as the hydraulic
process of mining; that said hydraulic process necessarily requires
the employment of large heads or streams of water, used through
pipes or hose, under heavy pressure, for the purpose of loosening
or washing the gold-bearing earth and gravel contained in said
mining
Page 96 U. S. 200
claims into large flumes, where the gold is separated from the
earth by the action of the water, and is retained. That the gold in
said claim is distributed in very fine particles throughout the
entire gravel deposit, and cannot be obtained in any other manner,
nor can said mining claims of your petitioners be worked in any
other manner save by said hydraulic process; that in working said
mines, your petitioners necessarily deposit in the channels of the
Bear River and its tributaries large quantities of tailings from
said mines; that the said Bear River and its tributaries are the
natural and only outlets for said hydraulic gold mines; and your
petitioners claim the right to work, use, and operate said mines,
and, in so doing, to use the channels of Bear River and its
tributaries as a place of deposit for their said tailings, under
the provisions of the act of Congress of the United States,
entitled 'An Act granting the right of way to ditch and canal
owners over the public lands, and for other purposes,' passed July
26, 1866, and the act amendatory thereof, passed July 9, 1870, and
the 'Act to promote the development of the mining resources of the
United States,' passed May 10, 1872, and other laws of the United
States."
"That said action arises under, and that its determination will
necessarily involve and require the construction of, the laws of
the United States above mentioned, as well as the preemption laws
of the United States. That the mines of your petitioners are of
great value, to-wit, of an aggregate value of not less than ten
millions of dollars, and that if your petitioners are prevented
from using the said channels of Bear River and its tributaries as
outlets for their said tailings and water, their said mines will be
thereby rendered wholly valueless."
The state court accepted the petition and bond and transferred
the suit, but the circuit court remanded it on the ground that no
real or substantial controversy properly within the jurisdiction of
that court appeared to be involved. To obtain a review of this
action of the circuit court the present writ of error has been
brought under the provision of sec. 5 of the act of 1875, which
gives authority for that purpose.
Page 96 U. S. 201
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
It is well settled that in the courts of the United States, the
special facts necessary for jurisdiction must in some form appear
in the record of every suit, and that the right of removal from the
state courts to the United States courts is statutory. A suit
commenced in a state court must remain there until cause is shown
under some act of Congress for its transfer. The record in the
state court, which includes the petition for removal, should be in
such a condition when the removal takes place as to show
jurisdiction in the court to which it goes. If it is not and the
omission is not afterwards supplied, the suit must be remanded.
The attempt to transfer this cause was made under that part of
sec. 2 of the act of 1875 which provides for the removal of suits
"arising under the Constitution or laws of the United States." In
the language of Chief Justice Marshall, a case "may truly be said
to arise under the Constitution or a law of the United States
whenever its correct decision depends upon the construction of
either,"
Cohens v.
Virginia, 6 Wheat. 379, or when
"the title or right set up by the party may be defeated by one
construction of the Constitution or law of the United States, or
sustained by the opposite construction,"
Osborne v. Bank of the
United States, 9 Wheat. 822.
The question of jurisdiction was submitted to the circuit court
upon the record sent from the state court. Upon the
Page 96 U. S. 202
pleadings alone, it is clear the defendants had not brought
themselves within the statute. The complaint simply set forth the
ownership by Keyes of his property and the acts of the defendants
which, it was claimed, created a private nuisance. No rights were
asserted under the Constitution or laws of the United States, and
nothing was stated from which it could in any manner be inferred
that the defendants sought to justify the acts complained of by
reason of any such authority. The defendants, in their demurrer,
which set forth specifically the grounds relied upon, presented no
question of federal law. The validity of the judgment of the
circuit court therefore depends upon the sufficiency of the facts
set forth in the petition for removal.
For the purposes of the transfer of a cause, the petition for
removal, which the statute requires, performs the office of
pleading. Upon its statements, in connection with the other parts
of the record, the courts must act in declaring the law upon the
question it presents. It should therefore set forth the essential
facts, not otherwise appearing in the case, which the law has made
conditions precedent to the change of jurisdiction. If it fails in
this, it is defective in substance and must be treated accordingly.
Thus, in
Insurance Company v. Pechner, 95 U. S.
183, we decided that a petition for removal on account
of the citizenship of the parties did not divest the state court of
its power to proceed because, when taken in connection with the
pleadings and process in the cause, it failed to show such
citizenship at the time of the commencement of the action as would
give the circuit court jurisdiction. And in
Amory v.
Amory, 95 U. S. 186, we
held to the same effect in reference to a petition which failed to
set forth the personal citizenship of the parties.
The office of pleading is to state facts, not conclusions of
law. It is the duty of the court to declare the conclusions, and of
the parties to state the premises.
In this petition, the defendants set forth their ownership, by
title derived under the laws of the United States, of certain
valuable mines that can only be worked by the hydraulic process,
which necessarily requires the use of the channels of the river and
its tributaries in the manner complained of, and they allege that
they claim the right to this use under the provisions
Page 96 U. S. 203
of certain specified acts of Congress. They also allege that the
action arises under, and that its determination will necessarily
involve and require the construction of, the laws of the United
States specifically enumerated, as well as the preemption laws.
They state no facts to show the right they claim or to enable the
court to see whether it necessarily depends upon the construction
of the statutes.
Certainly an answer or plea containing only the statements of
the petition would not be sufficient for the presentation of a
defense to the action under the provisions of the statutes relied
upon. The immunities of the statutes are in effect conclusions of
law from the existence of particular facts. Protection is not
afforded to all under all circumstances. In pleading the statute,
therefore, the facts must be stated which call it into operation.
The averment that it is in operation will not be enough, for that
is the precise question the court is called upon to determine.
The statutes referred to contain many provisions, but the
particular provision relied upon is nowhere indicated. A cause
cannot be removed from a state court simply because in the progress
of the litigation it may become necessary to give a construction to
the Constitution or laws of the United States. The decision of the
case must depend upon that construction. The suit must, in part at
least, arise out of a controversy between the parties in regard to
the operation and effect of the Constitution or laws upon the facts
involved. That this was the intention of Congress is apparent from
sec. 5 of the act of 1875, which requires the circuit court to
dismiss the cause, or remand it to the state court, if it shall
appear
"at any time after such suit has been brought or removed thereto
that such suit does not really or substantially involve a dispute
or controversy properly within the jurisdiction of said circuit
court."
Before, therefore, a circuit court can be required to retain a
cause under this jurisdiction, it must in some form appear upon the
record, by a statement of facts "in legal and logical form" such as
is required in good pleading, 1 Chit.Pl. 213, that the suit is one
which "really and substantially involves a dispute or controversy"
as to a right which depends upon the construction
Page 96 U. S. 204
or effect of the Constitution or some law or treaty of the
United States. If these facts sufficiently appear in the pleadings,
the petition for removal need not restate them; but if they do not,
the omission must be supplied in some form, either by the petition
or otherwise. Under the application of this rule, we think that the
record in this case is insufficient and that the circuit court did
not err in remanding the cause.
The act of 1875 has made some radical changes in the law
regulating removals. Important questions of practice are likely to
arise under it which, until the statute has been longer in
operation, it will not be easy to decide in advance. For the
present, therefore, we think it best to confine ourselves to the
determination of the precise question presented in any particular
case, and not to anticipate any that may arise in the future. Under
these circumstances, the present case is not to be considered as
conclusive upon any question except the one directly involved and
decided.
Judgment affirmed.
MR. JUSTICE BRADLEY, dissenting.
The question intended to be raised in this case is whether the
grants made by the United States of placer mines, as such, involve
the right to discharge the refuse earth and gravel produced by
working said mines, called "tailings," into the neighboring
streams, in this case, Bear River, inasmuch as the mines cannot be
worked except by means of a discharge of the streams of water
loaded with such refuse. This question depends upon the
construction of the titles given by the United States. When the
government determined to sell mining property as such, and placer
mines
eo nomine, did it or did it not intend to confer a
right of working them in the only way in which they could be
worked? It seems to me that the question is clearly raised by the
allegations of the petition in this case, and the claim of the
right is clearly made. Whether it can be maintained as against the
occupants of inferior lands in the valleys which may be injured
thereby is another question not now before us. I think the parties
were entitled to a removal of the cause.
