The test of the right to remove a case from a state court into
the circuit court of the United States under section two of the Act
of March 3, 1887, as corrected by the Act of August 13, 1888, is
that it must be a case over which the Circuit Court might have
exercised original jurisdiction under section one of that act.
A case cannot be removed on the ground that it is one arising
under the Constitution, laws, or treaties of the United States
unless that appears by plaintiff's statement of his own claim, and
if it does not so appear, the want of it cannot be supplied by any
statement of the petition for removal or in the subsequent
pleadings, or by taking judicial notice of facts not relied on and
regularly brought into controversy.
Although it appears from plaintiff's statement of his claim that
it cannot be maintained at all because inconsistent with the
Constitution or laws of the United States, it does not follow that
the case arises under that Constitution or those laws.
This was a bill filed in the Circuit Court of Sebastian County
for the District of Greenwood, Arkansas, by "The State of
Arkansas,
Page 183 U. S. 186
on the relation of Jo Johnson, Prosecuting Attorney for the
Twelfth Judicial Circuit," against the Kansas & Texas Coal
Company and the St. Louis & San Francisco Railroad Company,
which "for her cause of action" alleged that the railroad company
was
"a corporation organized under the laws of the State of
Missouri, owning and operating a railroad in the Twelfth Judicial
Circuit of Arkansas and more particularly in Sebastian County, of
said circuit;"
that the coal company was
"a corporation duly organized under the laws of the State of
Missouri, owning and operating a coal mine in Huntington, in the
Greenwood District of Sebastian County. . . . That a high state of
excitement and condition of hot blood now prevails between striking
miners and their sympathizers in large numbers, on the one side,
and said coal company and its employees, on the other. That said
coal company is threatening and is about to import into said county
and Town of Huntington, over the line of their codefendant's
railroad, a large number of armed men of the low and lawless type
of humanity, to-wit, about two hundred, to the great danger of the
public peace, morals, and good health of said county, and more
particularly of said town. That said threatened action on the part
of said defendant, if permitted to be executed, would become a
great public nuisance, and would destroy the peace, morals, and
good health of said county and town, and would lead to riot,
bloodshed, and to the dissemination of contagious and infectious
diseases."
The bill prayed
"that the defendant Kansas & Texas Coal Company, its agents,
servants, and employees, and each of them, be restrained and
prohibited from importing or causing to be imported or brought into
Sebastian County or the Twelfth Judicial Circuit of Arkansas, and
that the St. Louis & San Francisco Railroad Company, its
agents, servants, and employees, each, both, and all of them, be
enjoined, restrained, and prohibited from importing, hauling, or
bringing, or causing to be imported, hauled, or brought, in the
said county or circuit, and from unloading or attempting to unload
from any of its cars in said county or circuit, any and all large
bodies of armed, lawless, or riotous persons or persons affected
with contagious or infectious diseases that might endanger the
peace, good order, or good
Page 183 U. S. 187
health of the state, or create a public nuisance in said county
or circuit, under the pains and penalty of the law."
A preliminary injunction was granted, and process issued.
Defendants filed their petition and bond for removal, and made
application therefor, which was denied by the circuit court of
Sebastian County, whereupon defendants filed in the United States
Circuit Court for the Western District of Arkansas a certified
transcript of the record and of the pleadings and papers in the
case.
The petition for removal averred that Jo Johnson was a citizen
of Arkansas, that defendants were citizens of Missouri, and that
the controversy in suit was wholly between citizens of different
states, and also that, treating the State of Arkansas as
complainant, the suit was one arising under the Constitution and
laws of the United States because defendants were engaged in
interstate commerce, and the action was an unlawful interference
therewith by reason of the commerce clause of the federal
Constitution and of laws passed in pursuance thereof, and which
constituted a defense in the premises.
Complainant moved to remand the cause, and defendants moved to
dissolve the injunction and that complainant be restrained from the
prosecution of the suit in the state court. The circuit court of
the United States overruled the motion to remand, and sustained the
motion to dissolve, but declined to enjoin complainant. 96 F. 353.
The cause came on subsequently for final hearing, the bill was
dismissed, and this appeal was prosecuted.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The gravamen of the bill was the injury to the health, morals,
peace, and good order of the people of the town and county, the
infliction of which was alleged to be threatened by the
Page 183 U. S. 188
bringing within their precincts of certain persons by
defendants. No statute of the state was referred to as applicable,
but the enforcement of the police power was sought through the
interposition of a court of equity by way of prevention of an
impending public nuisance. The circuit court was of opinion that
the bill could not be maintained; but, without intimating any
conclusion to the contrary, or criticizing its formal sufficiency,
the question that meets us on the threshold is whether the case
ought to have been remanded to the state court.
We need not spend any time on the contention that this was a
controversy between citizens of different states. The circuit court
correctly held otherwise. The State of Arkansas was the party
complainant, and a state is not a citizen.
Postal Telegraph
Cable Company v. United States, 155 U.
S. 482.
We inquire, then, if the cause was removable because arising
under the Constitution or laws of the United States.
The general policy of the Act of March 3, 1887, as corrected by
the Act of August 13, 1888, 24 Stat. 552, c. 373; 25 Stat. 433, c.
866, as is apparent on its face and as has been repeatedly
recognized by this Court, was to contract the jurisdiction of the
circuit courts. Those cases, and those only, were made removable
under section 2 in respect of which original jurisdiction was given
to the circuit courts by section 1. Hence it has been settled that
a case cannot be removed from a state court into the circuit court
of the United States on the sole ground that it is one arising
under the Constitution, laws, or treaties of the United States
unless that appears by plaintiff's statement of his own claim, and
if it does not so appear, the want of it cannot be supplied by any
statement of the petition for removal or in the subsequent
pleadings. And moreover, that jurisdiction is not conferred by
allegations that defendant intends to assert a defense based on the
Constitution or a law or treaty of the United States, or under
statutes of the United States or of a state, in conflict with the
Constitution.
Tennessee v. Union & Planters' Bank,
152 U. S. 454;
Chappell v. Waterworth, 155 U. S. 102;
Walker v. Collins, 167 U. S. 57;
Sawyer v. Kochersperger, 170 U. S. 303;
Florida Central & Peninsula Railroad v. Bell,
176 U. S. 321.
Page 183 U. S. 189
In this case, the state asserted no right under the Constitution
or laws of the United States, and put forward no ground of relief
derived from either. There were no averments on which the state
could have invoked the original jurisdiction of the circuit court
under section 1 of the act, and that is the test of the right of
removal under section 2.
The police power was appealed to, the power to protect life,
liberty, and property, to conserve the public health and good
order, which always belonged to the states, and was not surrendered
to the general government, or directly restrained by the
Constitution. The Fourteenth Amendment, in forbidding a state to
make or enforce any law abridging the privileges or immunities of
citizens of the United States, or to deprive any person of life,
liberty, or property without due process of law, or to deny to any
person within its jurisdiction the equal protection of the laws,
did not invest Congress with power to legislate upon subjects which
are within the domain of state legislation.
In re Rahrer,
140 U. S. 554.
It is true that, when the police power and the commercial power
come into collision, that which is not supreme must give way to
that which is supreme. But how is such collision made to
appear?
Defendants argue that the circuit court might have properly
taken judicial notice, or did so, of the fact that the persons
whose advent was objected to as perilous to the community could
only be brought to Huntington by way of the Indian Territory, and
also that the word "import" as used in the bill meant to bring into
from another state or foreign country; that therefore
"the question is fairly presented by the complaint whether the
State of Arkansas has the authority to prevent the coal company and
the railroad company from bringing into the state, over the line of
this railroad, laborers from other states or foreign
countries,"
and hence that the circuit court had jurisdiction. We do not
agree with either premise or conclusion.
The word "import" necessarily meant bringing into the county and
town from outside their boundaries, but we do not think, taking the
whole bill together, that as here used its necessary signification
was the bringing in from outside of the state.
Page 183 U. S. 190
And as to judicial knowledge, the principle applies
"that the right of a court to act upon what is in point of fact
known to it must be subordinate to those requirements of form and
orderly communication which regulate the mode of bringing
controversies into court, and of stating and conducting them."
Thayer, Ev. c. VII, 281.
In
Mountain View Mining & Milling Co. v. McFadden,
180 U. S. 533,
which was a petition for removal, the suit was one brought in
support of an adverse claim under the Revised Statutes, sections
2325, 2326, and it had been previously decided that such a suit was
not one arising under the laws of the United States in such a sense
as to confer jurisdiction on the federal courts regardless of the
citizenship of the parties. And we said:
"It is conceded by counsel on both sides that those decisions
are controlling, unless the circuit court was entitled to maintain
jurisdiction by taking judicial notice of the fact 'that the
Mountain View lode claim was located upon what had been or was an
Indian reservation,' and 'of the act of Congress declaring the
north half of the reservation upon which the claim was located, to
have been restored to the public domain,' notwithstanding no claim
based on these facts was stated in the complaint. But the circuit
court could not make plaintiffs' case other than they made it by
taking judicial notice of facts which they did not choose to rely
on in their pleading. The averments brought no controversy in this
regard into court, in respect of which resort might be had to
judicial knowledge."
Oregon Short Line &c. Railway v. Skottowe,
162 U. S. 490;
Chappell v. Waterworth, 155 U. S. 102;
Commonwealth v. Wheeler, 162 Mass. 429;
Partridge v.
Strange, 1 Plowd. 77.
But even assuming that the bill showed upon its face that the
relief sought would be inconsistent with the power to regulate
commerce, or with regulations established by Congress, or with the
Fourteenth Amendment, as contended, it would only demonstrate that
the bill could not be maintained at all, and not that the cause of
action arose under the Constitution or laws of the United
States.
When federal questions arise in cases pending in the state
courts, those courts are competent, and it is their duty, to
decide
Page 183 U. S. 191
them. If errors supervene, the remedy by writ of error is open
to the party aggrieved.
Robb v. Connolly, 111 U.
S. 624,
111 U. S.
637.
Decree reversed and cause remanded, with a direction to
remand to the state court. Costs of this Court and of the circuit
court to be paid by the appellees and defendants.
