Chicago, R. I. & P. Ry. Co. v. Nebraska, 251 F. 279

Chicago, R. I. & P. Ry. Co. v. Nebraska

251 F. 279 | 8th Cir. | 1918

YOUMANS, District Judge.

This suit was originally instituted in the district court of Lancaster county, state of Nebraska. Upon mo*280tion of plaintiff in error it was removed to the District Court of the United States for Nebraska, Dincoln Division. In the last-named court a jury was waived and the cause was submitted to the court upon the pleadings and an agreed statement of facts. The state recovered judgment. The railway company sued out a writ of error to. this court.

[1] The question of jurisdiction was not raised in the court below. There was no motion by the state to remand the case to the state court. The suit w'as for certain taxes imposed under the laws of Nebraska. A state is not a citizen. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231; Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 22 Sup. Ct. 47, 46 L. Ed. 144; Title Guaranty Co. v. Allen, 240 U. S. 136, 140, 36 Sup. Ct. 345, 60 L. Ed. 566. Therefore the court below did not have jurisdiction by virtue of diversity of citizenship. The cause of action stated in the complaint did not arise under the Constitution, laws, or treaties of the United States. Therefore there could be no jurisdiction on that ground.

[2] The consent of the parties could not confer jurisdiction. Chicago, Burlington & Quincy Railway Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521. In the case of M., C. & L. N. Railway Company v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510, 511 (28 L. Ed. 462), Mr. Justice Matthews, speaking for the court, said:

“On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.”

It thus appears that this court cannot disregard the fact of the want of jurisdiction.

The cause is reversed and remanded, with instructions to the District Court to remand it to the state court.