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Statement of the Case.

of incorporation so filed the plaintiff was authorized to construct a railroad from the town of Farmington, in Washington Territory, by the most practical route in general northerly direction, to a point at or near the town of Spokane Falls (now Spokane), in said Washington Territory, together with the following branch lines tributary thereto: From a junction with the said main line at the forks of Hangman Creek, near Lone Pine, in said Washington Territory, in a general northeastern direction, across the Coeur d'Alene Indian reservation, to a point near the mouth of St. Joseph's River on Coeur d'Alene Lake; thence in a northerly direction along the east side of Coeur d'Alene Lake to the Coeur d'Alene River; thence in a general easterly direction to Coeur d'Alene River; thence in a general easterly direction to Coeur d'Alene mission; thence in a southeasterly direction, by the valley of the South Fork of the Cœur d'Alene River to Wardner, in Idaho Territory. Second. From a junction with said main line, at or near the town of Spangle, in Washington Territory, in a generally northeasterly direction, to a point on Coeur d'Alene Lake, about five miles north of the mouth of the Coeur d'Alene River, in said Idaho Territory, and to maintain and operate such railroads and telegraph lines and branches thereof, carry freight and passengers thereon, and receive tolls therefor.

"Eighth. That the said line of railroad, as described in the said articles of incorporation of the plaintiff, nor any of the branches thereof, did not cover or include the ground in controversy, or any part thereof, or of the valley of the South Fork of the Coeur d'Alene River adjacent thereto; that the eastern terminus of the said branch of railroad running in the direction of the town of Wallace, as described in said articles, was at the town of Wardner, a distance of about fifteen miles westerly from the town of Wallace and from the land in controversy herein.

"Ninth. That afterwards, to wit, on the 10th day of November, 1886, and after the completion of said survey by said Burrage, and the said survey by the engineers of the defendant, the Coeur d'Alene Railway and Navigation Company, over the premises in controversy herein, the plaintiff filed in

Statement of the Case.

the office of the secretary of the Territory (now State) of Washington supplemental articles of incorporation, which supplemental articles of incorporation provided for a branch line of its railroad from the town of Milo (which is near Wardner), in Shoshone County, Idaho, following the South Fork of the Coeur d'Alene River to the town of Mullen, in said Territory, a distance of about twenty miles, which extension would pass over the premises in controversy.

"Tenth. That on the 22d day of December, 1886, the plaintiff filed in the office of the Secretary of the Interior at Washington, D. C., a copy of its said articles of incorporation and a copy of the statute of the Territory of Washington under which the plaintiff's incorporation was made and proof of its organization.

"Eleventh. That from the time of the making of the said survey by said Burrage over the land in controversy, on the 28th day of October, 1886, until long after the completion of the railroad, side tracks, and depot of the defendant, the Cour d'Alene Railway and Navigation Company, upon the ground in controversy, neither the said Burrage nor the plaintiff, nor any person for them or either of them, ever made any other survey or did any other act upon the premises in controversy or took any possession thereof; and that the first act done by said Burrage or the plaintiff upon said premises thereafter was the survey made thereon in the year 1888 by the plaintiff; and that at that time the railroad and the side track and depot of the defendant, the Coeur d'Alene Railway and Navigation Company, was fully constructed thereon, and had been so constructed, and thereon, since the fall of 1887, and the defendant, the Coeur d'Alene Railway and Navigation Company, was in full and complete operation and possession thereof and of the grounds in controversy herein.

"Twelfth. That the public surveys of the government were not extended over the land through which said surveys were made until in the month of July, 1891.

"Thirteenth. That on the 9th day of November, 1886, the defendant, the Coeur d'Alene Railway and Navigation Company, filed in the United States land office at Coeur d'Alene,

Argument for Plaintiff in Error.

Idaho, a map or profile of that portion of its railroad running through the town of Wallace, which was approved by the Secretary of the Interior December 3, 1886, and that upon said map or profile said line 'B,' through said town of Wallace, was platted as the line of route of said road; that line 'C' was in fact and intended to be a definite line of location thereof, but that said line 'B' was so platted by a mistake, and that said mistake was not discovered until after the completion of said railroad and side track and depot upon and over the ground in controversy herein, and that the filing of said plat, showing said road to run over said line 'B,' was not done for the purpose of in any manner deceiving the plaintiff or any one else, but was done by a mistake as aforesaid, and that the plaintiff was not in any manner misled or prejudiced by the filing of said plat or by said mistake."

The case was taken, by a writ of error, to the Circuit Court of Appeals for the Ninth Circuit, where the judgment of the Circuit Court was, on February 12, 1894, affirmed. 15 U. S. App. 359. On February 4, 1895, by a writ of error of that date, the case was brought to this court.

Mr. A. A. Hoehling, Jr., and Mr. Samuel Shellabarger, (with whom were Mr. W W. Cotton and Mr. Jeremiah M. Wilson on the brief,) for plaintiff in error, said, upon the question of jurisdiction:

I. The fact that the Northern Pacific Company united with the Coeur d'Alene Company in making the motion for the removal of the case to the Circuit Court of the United States did not make the Northern Pacific Company a party in the case. Parrott v. Alabama Gold Life Ins. Co., 5 Fed. Rep. 391; Atchinson v. Morris, 11 Fed. Rep. 582; Miner v. Markham, 28 Fed. Rep. 387; Perkins v. Hendryx, 40 Fed. Rep. 657; Golden v. Morning News Co., 42 Fed. Rep. 112; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; Reifsnider v. American &c. Publishing Co., 45 Fed. Rep. 433; Bentlif v. London &c. Finance Corporation, 44 Fed. Rep. 667; Tallman v. Baltimore & Ohio Railroad, 45 Fed. Rep. 156.

Argument for Plaintiff in Error.

II. The United States Circuit Court for the District of Idaho had no jurisdiction to enter up judgment herein against the plaintiff in error and in favor of the defendant in error.

Under the language of this act, the Federal courts created by the act became the successors of the territorial courts only in regard to the class of cases of which the Federal courts might have had jurisdiction had such courts been in existence at the time of the commencement of the action. Johnson v. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209.

Two things are necessary to give a court of the United States jurisdiction over any particular action: First, the action itself must be within the jurisdiction of the court; and second, the jurisdictional facts must affirmatively appear in the record. It is not enough for the court to see from the evidence, or know as a matter of fact, that it has jurisdiction; but such jurisdiction must actually appear by suitable allegations in the pleadings or in the petition for removal, and unless such jurisdiction affirmatively appears, then it is the duty of the court to dismiss the action, although such jurisdiction may actually exist. Insurance Co. v. Pechner, 95 U. S. 183; Robertson v. Cease, 97 U. S. 646; Swan v. Manchester, Coldwater &c. Railway, 111 U. S. 379; Parker v. Ormsby, 141 U. S. 81, 83; Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Gold Washing Co. v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105.

The effect of 8 18 of the Idaho enabling act was to confer jurisdiction on the state courts of all civil actions in which the United States was not a party, unless a proper written request showing the jurisdiction of the United States court was filed in the proper court, as required by the act. On familiar principles, such request for transfer, in order to oust the state court of jurisdiction and confer jurisdiction upon the United States court, must necessarily show that the United States court might have had jurisdiction of the action had such court existed at the time of the commencement of such case, as well as jurisdiction at the time when the action was

Argument for Plaintiff in Error.

undertaken to be transferred. Johnson v. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209.

Such request cannot be amended in the United States court; and a failure to properly allege therein the necessary jurisdictional facts is fatal to the jurisdiction of this court and of the court below. Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Stevens v. Nichols, 130 U. S. 230; Gold Washing Co. v. Keyes, 96 U. S. 199.

The two grounds of jurisdiction suggested by the petition for removal, namely, diverse citizenship and the corporate character of the Northern Pacific Railroad Company, are the only grounds of jurisdiction anywhere hinted at throughout the entire record.

Upon these grounds alone was the state court sought to be deprived of the jurisdiction conferred upon it over this action by the enabling act. Unless the jurisdictional facts above mentioned actually existed and are sufficiently stated, then no transfer took place, and the court below is without jurisdiction.

III. The court below had no jurisdiction by reason of the Federal character of the Northern Pacific Company.

Under the enabling act no action could be transferred unless "pending" at the time of the transfer. Glaspell v. Northern Pacific Railroad, 144 U. S. 211. This action was not pending against the Northern Pacific Company at the time of the admission of Idaho into the Union.

The Federal charter to a corporation can only give rise to a Federal question when the corporation is an actual party to the suit, actively present, and actively engaged in the litigation. Pacific Removal Cases, 115 U. S. 1; Metcalf v. Watertown, 128 U. S. 586. It is only when an act of Congress is directly brought into consideration in an action that the cause can be said to arise under such act. Gold Washing Company v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105; Shreveport v. Coe, 129 U. S. 36, 41.

Jurisdiction will not be entertained in an action, even where the petition for removal states a clear Federal question, if the

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