226 F. 884 | N.D. Cal. | 1914
This is an action brought in the superior court of the state, wherein the defendant Leininger, in his official capacity as register of the United States land office at Redding, Cal., and the defendant Kingsbury, in his official capacity as surveyor general and register of the state land office of the state of California, are joined as defendants; the relief asked against the first-named officer being an injunction permanently restraining him from entering upon the official records of his office, in obedience tó instructions from his superior officers in the Land Department of the United States, cancellations of certain lieu land selections theretofore made by the state of California from public lands of the United States under the supposed sanction of sections 2275 and 2276 of the Revised Statutes [as amended by Act Feb. 28, 1891, c. 384, 26 Stat. 796 (Comp. St. 1913, §§ 4860, 4861)], while that prayed against the last-named officer is that he be decreed to have issued to plaintiff patents from the state of California for the lands involved in the controversy in accordance with an alleged purchase thereof from the state.
The defendant Leininger filed in the state court a petition and bond for removal of the cause to this court, the grounds stated in the petition being that the action seeks to restrain him from the performance of an official duty under the laws of the United States, and necessarily involves a construction of the statutes and laws of the United States relative to the disposition of the public lands and the duties of the officers of the Land Department thereunder, the authority of such department to take the steps sought to be restrained being challenged by the bill, and, further, that the controversy as to this defendant is wholly separable from that involved against his• codefendant; and based upon his petition a motion was submitted to the state court that the cause be removed here. The application being resisted, a hearing was had thereon, whereupon the state court entered an order that the petition be denied, “for the reason that the same was not filed in the time provided by law and act of Congress, and on the further ground that no federal question is involved.” Thereupon, upon application of the defendant Leininger, a writ of certiorari was issued by this court, directing the superior court to certify here the records and proceedings in the cause, which was accordingly done. The plaintiff has now moved to remand upon various grounds which will be noticed.
These are the substantive allegations of the complaint affecting the defendant Leininger, and it will at once be perceived, from the plaintiff’s own statement of the cause of action, that the controversy involves not only the regularity and authority of the acts of the Land Department and its officers, but necessarily the construction of the laws of the United States under which they assumed to act. As to the jurisdiction of such a cause in this court, and the right of removal thereto, as involving a federal question, there can be no doubt. 1 Rose’s Fed. Pro. § 133, p. 338; Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442; McCune v. Essig, 199 U. S. 382, 26 Sup. Ct. 78, 50 L. Ed. 237.
The motion to remand is denied.