must appear from plaintiff's statement of his own cause of action, and his right to the relief sought must depend directly upon the construction of some provision of the Constitution or laws of the United States.32 Where the controversy might have arisen both under the laws in the United States and under the common law or a State statute, the complaint must clearly show that it arises under the former.33 Jurisdiction cannot be sustained upon allegations that defendant does or may assert some right under such Constitution or laws as a defense.34 An averment by the plaintiff, that the defendant will set up a defense based upon a Federal statute or the Constitution of the United States,35 or 32 Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., C. C. A., 93 Fed. 274, 35 C. C. A. 1; Shulthis v. McDougal, 225 U. S. 561, 56 L. ed. 1205; Hare v. Birkenfield, C. C. A., 181 Fed. 825; Boyd v. Great Western Coal & Coke Co., 189 Fed. 115; The Dalles & Rockland Ferry Co. v. Hendryx, 189 Fed. 266. 33 Shulthis v. McDougal, 225 U. S. 561; Beck v. Johnson, 169 Fed. 154. But see Nelson v. Southern Ry. Co., 172 Fed. 478; Bottoms v. St. Louis & S. F. R. Co., 179 Fed. 318. It was contended by the defendant that these two cases arose under the Employers' Liability Act (35 St. at L. 65), but the Federal court refused to take jurisdiction because there was no reference to the statute in the plaintiff's pleadings. Miller v. Illinois Cent. R. Co., 168 Fed. 982, where, although the pleading set forth this Federal statute, it did not show that the construction thereof was involved. Contra, Smith v. Detroit & T. S. L. R. Co., 175 Fed. 506. See Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570, infra, § 211. In Clark v. Southern Pac. Co., 175 Fed. 122, it was held that the petition sufficiently showed that the case arose under that Act of Congress. 34 Shulthis v. McDougal, 225 U. S. 561, 56 L. ed. 1205; Montana OrePurchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., C. C. A., 93 Fed. 274, 35 C. C. A. 1; Hare v. Birkenfield, C. C. A., 181 Fed. 825; Boyd v. Great Western Coal & Coke Co., 189 Fed. 115; The Dalles & Rockland Ferry Co. v. Hendryx, 189 Fed. 266; Kansas City Southern Ry. Co. v. Quigley, 181 Fed. 190, a bill quia timet; Taylor v. Anderson, 234 U. S. 74. 35 Florida Cent. & P. Co. v. Bell, 176 U. S. 321, 44 L. ed. 486; City Ry. Co. v. Citizens' St. R. Co., 166 U. S. 557, 41 L. ed. 1114; Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore-Purchasing Co., 188 I. S. 632, 47 L. ed. 626; Id., 188 U. S. 645, 47 L. ed. 634; affirming, C. C. A., 93 Fed. 274; Filhiol v. Torney, 194 U. S. 356, 48 L. ed. 1014; affirming 119 Fed. 974; Devine v. Los Angeles, 202 U. S. 313, 50 L. ed. 1046; Louisville & Nashville R. R. Co. v. Mottley, 211 U. S. 149, 53 L. ed. 126; Kansas v. Atchison, T. & S. F. Ry. Co., 77 Fed. 339; Montana O. P. Co. v. Boston & M. C. C. & S. M. Co., C. C. A., 93 Fed. 274; Peabody Gold Min. Co. based upon a State statute repugnant to the Federal Constitution,36 will not bring the case within the Federal jurisdiction; even though the plaintiff sues to quiet his own title, which does not depend upon a Federal statute.37 Where a complaint in the State court alleged that complainants claimed under a designated State statute, not set out in full in the complaint, and that defendant's claim arose under a previous statute, also designated, which was alleged to be contrary to the State Constitution; the Federal court, upon defendant's petition for removal, on the ground that the latter statute was contrary to the United States Constitution as impairing the obligation of their contract under the former statute, took judicial notice of the statutes in determining its jurisdiction.38 It has been said: that the rule, that a cause is not removable, as one arising under the Constitution or laws of the United States, unless such fact appears from the plaintiff's pleading, applies only to cases in which the Federal question is one inherent in the controversy itself; so that if raised by the defendant, and determined against him by the State court, he may remove it to the Supreme Court for review by appeal or writ of error; that such rule cannot be extended as to permit a plaintiff to prevent the removal of a suit against a receiver of a Federal court by omitting to state, in his pleadings, by what court defendant was appointed receiver; and that such an omission, when relied upon to prevent the removal of the cause, may fairly be considered as a fraud upon the jurisdiction of the Federal court, whether so intended or not.39 v. Gold Hill Min. Co., C. C. A., 111 Fed. 817. But see Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; Cox v. Gilmer, 88 Fed. 343; Yazoo & M. V. R. Co. v. Adams, 81 Miss. 90, 32 So. 937. 36 Devine v. Los Angeles, 202 U. S. 313, 50 L. ed. 1046; Cox v. Gilmer, 88 Fed. 343. But see South Carolina v. Coosaw Min. Co., 45 Fed. 804; Green v. Oemler, 151 Fed. 936. 37 Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 188 U. S. 632, 47 L. ed. 626; affirming, C. C. A., 93 Fed. 274; Devine v. Los Angeles, 202 U. S. 313, 50 L. ed. 1046; California Oil & Gas Co. of Arizona v. Miller, 96 Fed. 12. 38 South Carolina v. Coosaw Min. Co., 45 Fed. 804. 39 Winters v. Drake, 102 Fed. 545. Sée Washington v. Island Lime Co., 117 Fed. 777, 778; where it was held, that the pleading did not show fraud in concealing the real controversy by an insufficient statement of the facts constituting plaintiff's cause of action. See also infra, § 27. The court will take judicial notice of the fact that a defendant corporation was incorporated by an act of Congress, although the plaintiff has averred that it was incorporated under the State laws.40 Although a complaint by a settler claiming title under the pre-emption laws of the United States against a railroad company stated that defendant claimed under the laws of the Territory of Washington authorizing railroad companies to appropriate land for right of way, it disclosed a cause of action arising under the laws of the United States, so as to authorize a removal from a State court to the Federal court, the court having judicial knowledge that the authority of the Territory to legislate as to the matter in question was derived from the act of Congress, granting to railroad companies the right of way through the public lands of the United States.41 "Resort cannot be had to the expedient of importing into the record the legislation of the State as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision necessarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered. A definite issue as to the validity of the statute or the possession of the right must be distinctly deducible from the record.'' 42 It has been held that a suit cannot be removed because it was brought in violation of a proclamation of the President not authorized by law.43 In an action for false imprisonment, averments in the declaration that defendants, acting as judges of an election, caused plaintiff's arrest and imprisonment under color of a State law which is repugnant to the Constitution of the United States, are not open to the objection of anticipating the defense for the purpose of showing that a Federal question is involved.44 40 Texas & P. Ry. Co. v. Cody, 166 U. S. 606, 41 L. ed. 1132; Texas & P. Ry. Co. v. Barrett, 166 U. S. 617, 41 L. ed. 1136; Spokane Falls & N. Ry. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79; Scott v. Choctaw, O. & G. R. Co., 112 Fed. 180. See, however, Oregon Short Line & U. No. Ry. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048; cited infra, $27. Contra, Texas & P. Ry. Co. v. HighFed. Prac. Vol. I—6 tower (Texas), 12 Tex. Civ. App. 41, 33 S. W. 541. 41 Spokane Falls & N. Ry. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79. 42 Powell V. Brunswick County, 150 U. S. 433, 440; Fuller, C. J. 43 Muir v. Louisville & N. R. Co., 247 Fed. 888. 44 Cox v. Gilmer, 88 Fed. 343. Where the facts stated in the plaintiff's petition set forth a cause of action authorized by both an act of Congress and a State statute, although he did not specifically refer to either, it was held that the case might be removed.45 The existence in the case, of other questions than that arising under the Constitution or laws of the United States, does not impair the right or removal.46 It was said: that the clause in the removal act of 1888, authorizing the removal of civil suits arising under the Constitution or laws of the United States, relates only to the entire action and does not permit the removal of a part thereof when the rest is not removable.47 A bill to enjoin the enforcement of a municipal ordinance authorizing a street-railroad company to condemn for its use certain parts of the track of another corporation was entertained by a Circuit Court of the United States upon the ground, that the violation of a previous grant to the latter company, which complainant alleged, impaired the obligation of a contract. It was held that this did not give that court jurisdiction to decide a question arising on a supplemental bill as to the right of condemnation by the former company under its charter, when pursuant to such charter the city had determined, pending the suit, that the streets were not wide enough for two companies to lay tracks side by side; because the matter involved was beyond the scope of the controversy, which gave the court jurisdiction of the case originally.48 Where the bill brings before the court for determination a Federal question not merely colorable, but raised in good faith not merely for the purpose of giving jurisdiction to the District Court of the United States, the court can take jurisdiction and does not lose the same by deciding the case 45 Hall v. Chicago, R. I. & P. Ry. Co., 149 Fed. 654. 46 Connor v. Scott, Fed. Cas. No. 3,119 (4 Dill. 242); Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,827 (6 Blatchf. 362); s. c., Fed. Cas. No. 4,828 (8 Blatchf. 243); Illinois v. Illinois Cent. R. Co., 16 Fed. 881; People v. Sanitary Dist. of Chicago, 98 Fed. 150; Manigault v. S. M. Ward & Co., 123 Fed. 707; Mastin v. Chicago, R. I. & P. Ry. Co., 123 Fed. 827; New Orleans, M. & T. R. 47 Texas v. Day Land & Cattle Co., 49 Fed. 593; Iowa Loan & Trust Co. v. Fairweather, 252 Fed. 605; Chapter XXXII, on Removal of Causes, infra. 48 Mercantile Trust & Deposit Co. v. Collins Park & Belt R. Co., 107 Fed. 762. See August Busch & Co. v. Webb, 122 Fed. 655, 662. upon other points and omitting to decide the Federal questions of deciding them adversely to the party claiming their benefit.49 It has been said, that in such a case the court has no jurisdiction unless these extraneous questions are incidental to the Federal question.50 It was formerly held that, when a case involving several questions has been removed because one of them arises. under the Constitution or laws of the United States, after a decision of the court disposing of the Federal question there should be a remand; 51 but that a Federal question, which is not frivolous, cannot be decided upon a motion to remand.52 It has been said: that the nature of the action, and not the character of the defense, constitutes the test of the determina 49 Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep. 451; Ohio River & Western Ry. Co. v. Dittey, 232 U. S. 576; Louisville & Nashville R. R. Co. v. Finn, 235 U. S. 601; Louisville & Nashville R. R. Co. v. Greene, 244 U. S. 522; Omaha H. Ry. Co. v. Cable Tr. Co., 32 Fed. 727; per Brewer, J; s. c., 33 Fed. 689; Nashville, C. & St. L. Ry. Co. v. Taylor, 86 Fed. 168, 178, 188; Louisville Tr. Co. v. Stone, C. C. A., 107 Fed. 305, 309, 310; Bernstein v. Danwitz, 190 Fed. 604; Central R. Co. of New Jersey v. Jersey City, 199 Fed. 237, 246; Michigan Railroad Tax Cases, 138 Fed. 223; Oregon R. & Navigation Co. v. Campbell, 173 Fed. 957; Larabee v. Dolley, 175 Fed. 365; Risley v. City of Utica, 179 Fed. 875; WashingtonOregon Corp. v. City of Chehalis, 202 Fed. 592; Cleveland, C., C. & St. L. Ry. Co. v. Hirsch, C. C. A., 204 Fed. 850; Portland Ry., Light & Power Co. v. City of Portland, 210 Fed. 667. But see Underground Railroad v. City of New York, 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. 494, affirming, s. c., 116 Fed. 952; Mercantile Tr. & Deposit Co. v. Collins Park & Belt R. Co., 107 Fed. 762, 765; People's Gaslight & Coke Co. v. City of Chicago, 114 Fed. 384, holding that where the bill did not show that an ordinance fixing the rate for the price of gas, impaired the obligation of a contract, or took property without due process of law, the court could not consider the question whether the city had the power, under the laws of the State, to enact such an ordinance; Minnesota v. Northern Securities Co., 194 U. S. 48, 48 L. ed. 870; Cf. Penn. Mut. L. I. Co. v. Austin, 168 U. S. 685, 695, 42 L. ed. 626, 630; and infra. The cases where relief against the infringe. ment of rights claimed under a patent, copyright, or registered trade mark have been denied are explained in subsequent sections; infra, §§ 146, 148, 150. As to the rule in patent trade mark and copyright cases, see infra, §§ 146, 148, 150, 363. 50 Tullar & Tullar v. Illinois Cent. R. Co., 213 Fed. 280. 51 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. 401. 52 Lowry v. Chicago, B. & Q. R. Co., 46 Fed. 83. |