Oregon v. Three Sisters Irr. Co.

158 F. 346 | U.S. Circuit Court for the District of Oregon | 1907

WORVERTON, District Judge

(after stating the facts as above). The removal was sought upon the- sole ground that a federal question Was involved by the controversy; and whether such a question is so involved is the one now presented for consideration and decision.

It may be premised as a legal principle, now firmly settled, that to-warrant the removal of a cause from a state court into the federal Circuit Court as one arising solely under the Constitution, laws, and treaties of the United States, the condition or the fact that it so arises must be made to appear from the complainant’s statement of his own claim, and not only this, but his bill or declaration must show a case of that character so that an inspection of the record thus limited and circumscribed must determine whether there is cause for removal. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231; Oregon Short Line, etc., Ry. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048; Galveston, etc., Railway v. Texas, 170 U. S. 226, 18 Sup. Ct. 603, 42 L. Ed. 1017; Third St. & Suburban Railway v. Lewis, 173 U. S. 457, 19 Sup. Ct. 451, 43 L. Ed. 766; Minnesota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870. The more difficult thing to determine, however, is when and- under what conditions a federal question is involved. The following form of statement relative to the subject has the uniform sanction of the Supreme Court of the United States; I quote from the language of Mr. Justice Waite, in Starin v. New York, 115 U. S. 248, 257, 6 Sup. Ct. 28, 31, 29 L. Ed. 388:

“If from the questions it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not.”

Numerous cases are cited in support of the principle. The act of 1887, as corrected by the act of 1888, has not changed the law relative:' to the particular subject, so that the principle is as readily applicable now as under the old statute. In a later case the same eminent jurist makes use of the following language, which has application to the question first herein discussed, as well as the present one, namely:

“A suit by a state in one of its own courts cannot be removed to a Circuit Court of tbe United States under tbe act of 1875, unless it be a suit arising under the Constitution or laws of the United States or treaties made under their authority (Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482), and a suit cannot be said to be one arising under the Constitution or laws of the United States until it has in some way been made to appear on the face of the record that ‘some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by an opposite construction.’ ” Germania Insurance Co. v. Wisconsin, 119 U. S. 473, 7 Sup. Ct. 260, 30 L. Ed. 461.

In this case it was said that the only question presented by the record was one relating to service of summons upon the defendant; and hence that it could not be maintained that a federal question was involved. So in a still later case, which was one in assumpsit upon the common counts for the price of a machine, where, incidentally to a defense, the defendant claimed the invalidity of a certain patent, the court said:

“The action under consideration is not one arising under the patent right laws of the United States in any proper sense of the term. To constitute such a cause the plaintiff must set up some right, title, or interest under the patent laws, or at least make it appear that some right or privilege will be defeated by one construction, or sustained by the opposite construction of these laws.” Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255, 259, 18 Sup. Ct. 62, 42 L. Ed. 458.

In the celebrated case of Cohens v. Virginia, 6 Wheat. 264, 379, 5 L. Ed. 257, Chief Justice Marshall has this to say:

“A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either.”

In further development of the subject, I quote again from the language of Mr. Chief Justice Waite, employed in his opinion in the case of Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 203, 24 L. Ed. 654:

“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.”

And again, says Mr. Justice Harlan, in Railroad Co. v. Mississippi, 102 U. S. 135, 140, 141, 26 L. Ed. 96:

“It is settled law 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.”

While the soundness of the statement as it relates to the defense of the party is questioned by the dissenting opinion of Mr. Justice Miller, who has been sustained by subsequent adjudications of the Supreme Court, the statement in all other respects has never been challenged that I am aware of. Indeed, Mr. Justice Miller himself concurs to this extent. He says:

“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.”

The language of Mr.- Justice Harlan is quoted with approval by Mr. Justice Brown in Re Lennon (a later case) 166 U. S. 548, 554, 17 Sup. Ct. 658, 41 L. Ed. 1110. No better instance is afforded of a cause of action growing out of an act of Congress than Osborn v. United States Bank, 9 Wheat. 738, 6 L. Ed. 204. There the bank was incorporated under an act of Congress. The validity of the contract furnishing the subjeqt of the suit depended upon that act, and so the court said:

“The case arises emphatically under the law. The act of Congress is its foundation. The contract could never have been made, but under the authority of that act. The act itself is the first ingredient in the case, is its origin, iS that from which every other part arises.”

Now, what is this suit as presented by the bill of complaint? Does it arise under or grow out of a law of Congress ? It is one to annul a contract entered into between the plaintiff and defendant. The contract depends for its validity upon the Carey act. Without that act there could have been no dealing between the parties upon the basis adopted touching any of the public domain. The entire transaction grows out of, and is dependent for its validity upon, the initial legislation of Congress. That legislation promulgates a plan for reclamation by a state, and authorizes the state to contract with a person, company, or corporation to carry out whatever project may be agreed upon for doing the reclamation work. The state adopts the plan of Congress, and provides by its own enactment for contracting with individuals, firms,-or corporations for reclaiming the desert lands, all in accordance with the provisions of Congress, and thereupon enters into the contract in question, and alleges that in doing so it complied with both the act of Congress and that of the legislative assembly of the state. All has proceeded in pursuance of the act of Congress, and the litigation arises upon an instrument which is the result of such a proceeding. It seems perfectly clear and consequential, therefore, that the suit has grown out of the legislation or a law of Congress. True, the especial grievance complained of is the alleged breach of the contract, and it might be that the ultimate issue would simply resolve itself into one of fact as to whether the defendant has complied with the stipulations of the agreement. But such stipulations are essentially obligations to comply with the provisions of the Carey act, and the suit is nevertheless one touching the right or privilege of the complainant accorded under the act, and the act itself is certainly involved by the litigation. It is hardly possible that the state can maintain its rights and privileges thus granted without in some way calling to its aid some, if not many, of the provisions of the act, and drawing into controversy the proper interpretation and rendering of such provisions.

So I must conclude that the removal was properly granted, and the motion to remand will be denied.