208 F. 266 | 7th Cir. | 1913
(after stating the facts as above). The petition for condemnation, filed by the plaintiff in error in the state court, plainly asserts and rests its alleged right thereto oil the provisions of the state statute, and neither the Constitution of the United States, nor any act of Congress, is invoked or mentioned in the petition. It avers in substance: That the petitioner is incorporated as a telegraph company under the laws of Illinois, authorized to construct, own, and operate lines of telegraph in such state; that it is further empowered by such laws to exercise the right of eminent domain for the purposes thereof, as set forth; that the Southeast & St. Louis Railway Company (one of the defendants in error) is an Illinois corporation, owning a railroad having a right of way (as described) across the state, from East St. Louis “to the center thread of the permanent stream of the Wabash river” in White county, together with two branches within the state; that such owner had leased its properties to the Louisville & Nashville Railroad Company, a Kentucky corporation (defendant in error), for use and operation for 49 years, and the lessee was in operation thereof; that the petitioner “desires to construct a line of telegraph over, along, and upon said railroad,” a portion of which is situated in St. Clair county. The petition further describes its proposed line upon such right of way as located from a point named in East St. Louis “to the center thread of the permanent stream of the Wabash river” and upon the branches mentioned, states that no rights are sought therein “except to erect, maintain, and operate the proposed line for telegraph purposes,” and specifies the char
Having no ground for invoking federal jurisdiction of the. cause for diversity of citizenship, removal to the District Court and procedure therein to final judgment is unauthorized, if the alleged cause of action ■ does not arise under the Constitution and laws of the United States. The limitation of federal jurisdiction, in so far as it is made concurrent with that of state courts, strictly within the congressional provisions therefor, is well established; and the provisions of the Judicial Code, adopted March 3, 1911 (chapter 231, 36 Stat. D. 1087 [U. S. Comp. St. Supp. 1911, p. 128]), for removal of suits “arising under the Constitution or laws of the United States” whereof “the District Courts of the United States are given original jurisdiction” (section 28), constitute the sole reliance for exercise of jurisdiction in this case. Section 28 thereof, together with section 24 conferring original jurisdiction, codify and adopt the terms of the pre-existing statute applicable to the present inquiry, namely, the Act of March 3, 1887 (chapter 373, 24 Stat. L. 552 [U. S. Comp. St. 1901, p. 514]) as “corrected” by the Act of August 13, 1888 (chapter 866,25 Stat. L. 433 [U. S. Comp. St. 1901, p. 508]), so that it is both unquestionable and undisputed that decisions of the Supreme Court construing the instant provisions thus adopted from the earlier act are applicable here. The terms referred to of section 1' of the prior statute are preserved in code section 24, and the terms of section 2 (for removal) are in code section 28. . .
It may well he conceded that one or both of these propositions, when properly raised as an objection to condemnation, may present a federal question, either under the Constitution or under the laws of the United States, and that its determination may either defeat or modify the relief sought. The fact, however, that such questions may arise— whether appearing from averments of the complaint “as likely to arise in the course of the litigation” or otherwise — cannot serve to confer federal jurisdiction under the settled interpretation of the statute above mentioned, “that a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.” Louisville & Nashville R. R. v. Mottley, 211 U. S. 149, 152, 29 Sup. Ct. 42, 43 (53 L. Ed. 126).
In the last-mentioned case suit was instituted in the federal cbirt to enforce specific performance in equity of a contract on the part of the railroad company to issue free passes to the complainants annually during their lives respectively, under a bill averring that “refusal to comply with the contract was based solely upon” an act of Congress referred to “which forbids the giving of free passes or free transportation, and further averring that such act was inapplicable and inoperative for release from the contract in suit upon grounds stated. On appeal to the Supreme Court from a decree in favor of the complainants, consideration of the merits was denied because “the court below was without jurisdiction of the cause,” although that question was not raised by either party, and the decree was reversed with directions “to dismiss the suit for want of jurisdiction.” .We believe the
The judgment of the District Court, therefore, must be reversed for want of jurisdiction, and it is so ordered, with direction to remand the cause to the state court.