Northern Indiana R. Co. v. Michigan Central R. Co., 56 U.S. 233 (1853)

U.S. Supreme Court

Northern Indiana R. Co. v. Michigan Central R. Co., 56 U.S. 15 How. 233 233 (1853) Northern Indiana Railroad Company v.

Michigan Central Railroad Company

56 U.S. 233

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF MICHIGAN

Syllabus

The Michigan Central Railroad Company, established in Michigan, made an agreement with the New Albany & Salem Railroad Company, established in Indiana, that the former would build and work a road in Indiana under the charter of the latter.

Another company, also established in Indiana, called the Northern Indiana Railroad Company, claiming an exclusive right to that part of Indiana, filed a bill in the Circuit Court of the United States for the District of Michigan against the Michigan company, praying an injunction to prevent the construction of the road under the above agreement.

The circuit court had no jurisdiction over such a case.

The subject matter of the controversy lies beyond the limits of the district, and where the process of the court cannot reach the locus in quo.

Moreover, the rights of the New Albany Company are seriously involved in the controversy, and they are not made parties to the suit. The act of Congress, providing for the nonjoinder of parties who are not inhabitants of the district, does not apply to such a case as the present.

The appellants were complainants below. They were corporations created by and doing business in the State of Indiana, claiming a prior right to make and use a railroad running from east to west across the northern part of Indiana. The defendants were a company incorporated by Michigan, and had made a road from Detroit to Michigan City. Being desirous to continue the road round the southern end of Lake Michigan, they entered into an agreement for this purpose with a company incorporated by Indiana called the New Albany & Salem Railroad Company. The appellants filed a bill in Michigan, the domicil of the Michigan Central Railroad Company, praying for an injunction to prevent them from entering upon or using the said lands of said complainants and from grading and excavating upon the same and from hindering the complainants from completing their road and using the same exclusively and from constructing and using the railroad which the defendants have laid out or any railroad upon or near the line where the same is located and from doing anything in violation of the exclusive rights of the complainants.

To this bill the defendants demurred, and the circuit court dismissed the bill, with costs.

The complainants appealed to this Court.

Page 56 U. S. 240

MR. JUSTICE McLEAN delivered the opinion of the Court.

The Northern Indiana Railroad Company and the Board of commissioners for the Western Division of the Buffalo & Mississippi Railroad, corporations created by, and doing business in, the State of Indiana, filed their bill in the circuit court stating that an Act of the Legislature of Indiana dated February 6, 1835, incorporated the Buffalo & Mississippi Railroad Company. That by a subsequent Act of the legislature of February 6, 1837, the name of the corporation was changed to that of the "Northern Indiana Railroad Company;" that by an Act of the 8th of February, 1848, the "Board of commissioners for the Western Division of the Buffalo & Mississippi Railroad" were incorporated. That several acts of the Legislature of Indiana were passed confirming, amending, and enlarging the charters and franchises of the same corporations; that by virtue of said laws the complainants are severally entitled to do and perform business in the State of India as authorized by their said charters.

That the Northern Indiana Railroad Company, after being duly organized, examined, surveyed, marked, and located the route of their railroad, and by the means specified in the aforesaid acts procured the right of way for said railroad as the same has been constructed, and become seised in fee of the right to the lands acquired for that purpose, with all the privileges and franchises in relation thereto, confirmed and declared by the said acts, and that the route of that part of the western division of said railroad lying between Michigan City, in the County of Laporte, and the western line of the State of Indiana was duly surveyed and located and the right of way duly acquired. That a part included in said location consists of a strip of ground eighty feet in width extending from Michigan City to the west line of the State of Indiana, and that the railroad has been constructed and is in operation from Elkhart to Laporte and from Michigan City to the west line of the State of Indiana.

And the complainants say that they have purchased and now own in fee simple certain other lands situated on or near the line of said railroad which are deemed necessary for the business and purposes of said railroad. And they aver that they commenced their road within the time required and have prosecuted the same as by the several acts above referred to they were required to do. That among the rights and privileges under their charters is the sole and exclusive right and privilege of building, maintaining, and using a railroad along

Page 56 U. S. 241

the general route of the road. And they insist that no charter can be lawfully granted to any other company to construct any other road or roads in the vicinity of said railroad which would materially interfere injuriously with the profits of said road without the consent of the complainants, which has not been given. That the Legislature of Indiana has no power to establish such a road, there being no such power reserved in the original charter.

And the complainants allege the Michigan Central Railroad, a corporation created by and doing business in the State of Michigan, was incorporated for the purpose of constructing and using a railroad from Detroit, in the State of Michigan, to some point in the same state upon Lake Michigan accessible to steamboats navigating said lake; and with authority to extend their road to the southern boundary of the State of Michigan; that said company has constructed and now keep in use a railroad from Detroit to New Buffalo and thence to the southern line of the State of Michigan in the direction towards Michigan City in the State of Indiana, and that by an arrangement with the commissioners of the Western Division of the Buffalo & Mississippi Railroad Company, the road has been extended and is now in use to Michigan City.

And the complainants further allege that the New Albany & Salem Railroad Company is a corporation, created by and under certain acts of the Legislature of the State of Indiana and doing business therein, has no power or franchise to construct or to authorize the construction of any railroad whatsoever except what is contained in certain statutes referred to in the bill. That said company, and the defendants, the Michigan Central Railroad Company, on or about the 24th of April, 1851, entered into a contract with each other, which contract is in the possession of the defendants, and a discovery of the same is prayed, and that it may be produced. That by color of said contract, the defendants claim the right to construct and use a railroad from Michigan City to the western line of the State of Indiana by a route nearly parallel with the complainants' railroad, and in its immediate vicinity and several times crossing the same, and also the right and power to locate, construct, and use such railroad over and across the complainants' road with the exclusive franchises and privileges aforesaid as they, the defendants, shall see fit.

That the defendants have so laid out the route of their road from Michigan City to the western line of the State of Indiana as to cross the complainants' railroad upon lands the title of which was acquired by and is now held by the complainants, and upon which their railroad has been constructed with the

Page 56 U. S. 242

purpose and intent of obstructing and unlawfully interfering with the possession, occupancy, and use of the complainants' lands and with the intent to hinder and molest them in the enjoyment and use of the rights and franchises granted to them by the legislative acts stated and to defeat the exclusive right to have and use a railroad within that vicinity.

And after stating many other facts having a bearing upon the New Albany & Salem Railroad Company, and, as they allege, conducing to show a want of right in that company to extend their road to Michigan City and from thence to the western line of the State of Indiana near to and parallel with the complainants' road, as above stated, they pray that the defendants may be enjoined from the construction of their road &c.

The defendants filed a general demurrer to the bill, and a decree was entered in the circuit court sustaining the demurrer and dismissing the bill.

At the threshold of this case the question of jurisdiction arises. It is not controverted that the road of the defendants, against which the injunction is prayed has been constructed not only from Michigan City to the Western line of the State of Indiana, but to Chicago, in the State of Illinois. The demurrer admits the facts charged in the bill, and they are also established in part by surveys of both roads.

The jurisdiction of the circuit court of the United States is limited to controversies between citizens of different states except in certain cases, and to the district in which it sits. In this case we shall consider the question of jurisdiction in regard to the district only. In all cases of contract, suit may be brought in the circuit court where the defendant may be found. If sued out of the district in which he lives, under the decisions he may object, but this is a privilege which he may waive. Wherever the jurisdiction of the person will enable the circuit court to give effect to its judgment or decree, jurisdiction may be exercised. But wherever the subject matter in controversy is local, and lies beyond the limit of the district, no jurisdiction attaches to the circuit court sitting within it. An action of ejectment cannot be maintained in the district of Michigan for land in any other district. Nor can an action of trespass quare clausum fregit be prosecuted where the act complained of was not done in the district.

Both of these actions are local in their character, and must be prosecuted where the process of the court can reach the locus in quo.

The complainants allege that the defendants have built a railroad crossing their road several times, have entered upon their grounds, and, by building a parallel road so near as to carry the

Page 56 U. S. 243

same line of passengers and freight, their franchise has been impaired. That they have an exclusive right to run a railroad on the route stated, and that they have been seriously injured by the defendants' road.

This remedy by injunction is given to prevent a wrong for which an action at law can give no adequate redress. In its nature, it is preventive justice. Where the wrong has been inflicted before an injunction was applied for, it may be a matter of doubt in most cases whether an action at law would not be at first the appropriate remedy. But whether the relief sought be at law or in chancery, the question of jurisdiction equally applies.

In his conflict of laws, Mr. Justice Story says, sec. 463, not only real but mixed actions, such as trespass upon real property, are properly referable to the forum rei sitae. Skinner v. East India Company, Law 168; Doulson v. Matthews, 4 Term 503; Watts v. Kinney, 6 Hill N.Y. 82. But he says a court of chancery having authority to act in personam will act indirectly, and under qualifications, upon real estate situate in a foreign country by reason of this authority over the person, and it will "compel him to give effect to its decree, by a conveyance, release, or otherwise, respecting such property." Foster v. Vassall, 3 Atk. 589; 1 Equity Cases Abr. 133; Penn v. Lord Baltimore, 1 Ves. 444; Lord Cranstown v. Johnson, 3 Ves. 182, 183; White v. Hall, 12 Ves. 323; Lord Portarlington v. Soulby, 3 Mylne & Keen 104; Massie v. Watts, 6 Cranch 148, 10 U. S. 160. In this last case, the Chief Justice says

"Upon the authority of these cases cited and of others which are to be found in the books, as well as upon general principles, this Court is of opinion that in a case of fraud of trust or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree."

In another part of the opinion, he says,

"Was this therefore to be considered as involving a naked question of title; was it, for example, a contest between Watts and Powell, the jurisdiction of the Circuit Court of Kentucky would not be sustained."

If the court had acquired jurisdiction of the person by his being within the state, it will compel him, by attachment, to do his duty under his contract or trust, and enforce the decree in rem by his executing and conveying or otherwise, as justice may require, in respect to lands abroad. White v. White, 7 Gill & Johnson 208; Vaughan v. Barclay, 6 Wharton 392; Watkins v. Holman, 16 Pet. 25.

The controversy before us does not arise out of a contract, nor is it connected with a trust expressed or implied. An exclusive right is claimed by the complainants under their charters

Page 56 U. S. 244

and the legislative acts of Indiana connected therewith to construct and use a railroad, as they have done, from the City of Michigan to the western line of the state. And they complain that the defendants have unlawfully entered upon their grounds, constructed a road crossing the complainants' road several times and materially injuring it by constructing a road parallel to it. Relief is prayed for an injury threatened or done to their real estate in Indiana and to their franchise which is inseparably connected with the realty in that state.

In the investigation of this case, rights to real estate must be examined which have been acquired by purchase or by a summary proceeding under the laws of Indiana. This applies especially to the ground on which the complainants' road is constructed and to other lands which have been obtained for the erection of facilities connected with their road. And in addition to this the chartered rights claimed by the defendants, and the right asserted by them to construct their road as they have done, crossing the complainants' road and running parallel to it, must also be investigated. Locality is connected with every claim set up by the complainants and with every wrong charged against the defendants. In the course of such an investigation, it may be necessary to direct an issue to try the title of the parties or to assess the damages complained of in the bill.

It will readily be admitted that no action at law could be sustained in the District of Michigan on such ground for injuries done in Indiana. No action of ejectment or for trespass on real property could have a more decidedly local character than the appropriate remedy for the injuries complained of. And is this character changed by a bill in chancery? By such a procedure we acquire jurisdiction of the defendants, but, the subject matter being local, it cannot be reached by a chancery jurisdiction exercised in the State of Michigan. A state court of Michigan having chancery powers may take the same jurisdiction in relation to this matter which belongs to the Circuit Court of the United States sitting in the district of Michigan. And it is supposed that no court in that state could assume such a jurisdiction.

But there remains another ground of objection to the jurisdiction in this case. The New Albany & Salem Railroad Company is not made a party to this suit. As an excuse for this omission it is alleged in the bill that, this company being a corporation by the laws of the State of Indiana, of the same state as the complainants, it cannot be made a party without ousting the jurisdiction of the court. This is true, and if the relief prayed for by the complainants can be given without impairing the rights of this company, under the act of 1839, the jurisdiction may be exercised.

Page 56 U. S. 245

The complainants contend that this company is not a necessary party, and that no decree is asked against it.

The right claimed by defendants to construct their road as stated in the bill was derived solely from the New Albany & Salem Company. The contract under which this claim is made is referred to in the bill, and is consequently a part of it. It is stated in the contract that this company, "both for the public good and their own interest," deemed it important to extend its road to Michigan City and thence westward by the state line of Illinois &c. And it is also stated that the Michigan Central Railroad Company were willing to subscribe for five hundred thousand dollars of the stock of the New Albany & Salem Railroad Company upon certain conditions, as well as to build the entire line of railroad from Michigan City to the Illinois state line, provided they can have the use and control of the same until the costs of the same shall be reimbursed to it, &c. The payment of the stock to the New Albany road, as one of the conditions, was to be made by installments stipulated, a large part of which are yet unpaid. And to reimburse the Michigan Company, a million of dollars were assumed as the cost of the road from Michigan City to the western line of the state, which sum, if paid in forty years with interest at five percent per annum, the railroad to be constructed by the Michigan Company, with all its equipments, shall become the property of the New Salem Company and the mortgage or pledge of the contract shall cease.

In the argument it was contended by the complainants that under no act or acts of the Indiana legislature have the New Albany & Salem Company a right to construct a railroad further north than Crawfordsville. That certain words used in the act of February 11, 1848, giving the company power to "extend their road to any other point or points than those indicated by the location heretofore made by the authority of the state," were necessarily limited to the points named in previous acts -- New Albany, Salem, and Crawfordsville. And that in extending the road from Crawfordsville north to Michigan City and thence west parallel with the complainants' road to the western line of the State of Indiana, it was located without any legal authority.

From the above it appears that the validity of the New Albany & Salem charter is involved in this case for between two and three hundred miles, from Crawfordsville to Michigan City and thence to the western line of the State of Indiana. The construction of that road has been nearly if not entirely completed at an expenditure of between two and three millions of dollars. And in addition to this it appears from the

Page 56 U. S. 246

contract made between this company and the Michigan company that as one of the conditions of the contract, the latter company subscribed in stock to the New Albany & Salem road half a million of dollars, a part of which sum only has been paid.

Now if this Court, in giving the relief prayed for by the complainants, should find it necessary to declare that the above charter gave no authority to the New Albany Company to locate and construct their road north of Crawfordsville, it would be ruinous to that company. And it is clear that any decision which shall declare the road from Michigan City to the western line of the State of Indiana, without the protection of law must equally apply to the road from Michigan City to Crawfordsville, as they were located and built under the same authority. This question is therefore vitally interesting to the New Albany Company, and by the bill we are called to decide that question although that company is not made a party to the suit. It is impossible to grant the relief prayed without deeply affecting the New Albany Company. If their charter should be held good, as claimed by that company, an injunction against the defendants would materially injure the New Albany Company, as it would not only impair the contract made with the defendants in regard to the road from Michigan City westward to the state line, but it would probably release the defendants from a subscription of half a million to the stock of the Crawfordsville road, or at least from the payment of the part of that subscription which has not been paid.

The act of 1839 provides that

"Where in any suit at law or in equity commenced in any court of the United States there shall be several defendants any one or more of whom shall not be inhabitants of or found within the district, jurisdiction may be entertained, but the judgment or decree shall not conclude or preclude other parties. And the nonjoinder of parties who are not inhabitants or found within the district shall constitute no matter of abatement or other objection to said suit."

The provision of this act is positive, and in ordinary cases no difficulty could arise in giving effect to it, but in a case like the present, where a court cannot but see that the interest of the New Albany Company must be vitally affected if the relief prayed by the complainants be given, the Court must refuse to exercise jurisdiction in the case or become the instrument of injustice. In such an alternative, we are bound to say that this case is not within the statute. On both the grounds above stated. we think that the circuit court has no jurisdiction. The judgment of that court in dismissing the bill is therefore

Affirmed.

Page 56 U. S. 247

MR. JUSTICE CATRON and MR. JUSTICE CAMPBELL delivered separate opinions. MR. JUSTICE DANIEL dissented.

MR. JUSTICE CATRON.

The Northern Indiana Railroad Company and the Railroad Commissioners for the Western Division of the Buffalo & Mississippi Railroad Company filed their bill against the Michigan Central Railroad Company in the Circuit Court of the United States in the District of Michigan, seeking an injunction against the defendant to prevent the Michigan company from laying down and using a railroad around the southern end of Lake Michigan and within the State of Indiana, which road crosses the road of the complainants and runs near to and parallel with it, and, as the complainants allege, will materially withdraw their profits. And the complainants insist that they have a monopoly by their charter to construct the only road near to and around the southern end of the lake, and that the defendant has violated the chartered rights secured to the complainants.

The bill was demurred to, and the demurrer was sustained by the circuit court. The first cause of demurrer set forth is that the complainants have not, by their bill, made such case as entitles them to any discovery or relief against the defendant as to the matters contained in the bill, or any of them, and the judgment of the court is prayed whether the defendant shall be compelled to make further answer, and on this state of pleadings the question standing in advance of all others is whether the circuit court had jurisdiction to entertain the bill as between these parties independent of the merits of the case set forth. The bill alleges that the Northern Indiana Railroad Company, and the commissioners of the Buffalo company were severally corporations created by the State of Indiana, and were doing business in said state according to their charters,

"and are, in meaning and contemplation of the Constitution and laws of the United States, citizens of the State of Indiana and entitled to be deemed and taken as such citizens for all the purposes of suing and being sued, and for the purposes of this bill of complaint."

A corporation is composed of many individual members, having a joint interest, and a joint right to sue in their corporate name, and the consideration here presented is whether a state law creating the corporation makes such corporation "a citizen" according to the Constitution, regardless of the fact where its members reside. If the corporation be such citizen, then every member of the corporate body might reside in Michigan and yet have the right to sue citizens of Michigan there in the United States court.

Page 56 U. S. 248

The Constitution gives jurisdiction to the courts of the Union "between citizens of different states." Now if it be true that corporations -- such as for making roads &c. -- be citizens in the established sense of the Constitution, it must have been thus settled in the case of Louisville Railroad Company v. Letson, 2 How. 497, as, previous to that decision, made in 1844, this Court did not suppose that a corporation was a citizen. Nor was any such question presented in Letson's Case -- far from it.

Letson sued the railroad company in covenant, by their corporate name, distinctly averring that the members of the company were citizens of South Carolina and that the plaintiff was a citizen of New York.

The defendant pleaded in abatement that Rutherford and Baring, two of the stockholders, were citizens of North Carolina and that the State of South Carolina was also a stockholder. To this plea there was a demurrer, which was sustained in the circuit court and in this Court.

It was held

1. That the state could not object, as she stood on the foot of every other individual stockholder and need not be sued, and

2. That fugitive stockholders, who were changing every day, and quite too numerous to be included in a suit, need not be made parties of record.

This, from the report of the case, seems to have been the unanimous opinion of the members of this Court who were present at the time; certainly it was my opinion.

The president and directors of the railroad company were alleged to be, and admitted to be by their plea, citizens of South Carolina; they represented the stockholders, and were their trustees, and whose acts were binding on the stockholders. This state of parties conformed to the act of Congress of 1839, and the spirit of the 47th, 48th, 49th, and 50th rules for the government of chancery practice in the federal courts, adopted in 1842.

It is now assumed that Letson's Case overruled the decision in Strawbridge v. Curtis, 3 Cranch 267. That decision undoubtedly proceeded on the true rule.

There were various complainants to a bill in equity, and the bill alleged that some of the complainants were citizens of Massachusetts, where the suit was brought, and that the defendants were also citizens of Massachusetts, except Curtis, who was stated to be of Vermont, and a subpoena was served on him in that state. There it was held "that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the federal courts." A bill thus framed could not at this day be treated seriously.

Page 56 U. S. 249

The next case supposed to be in conflict with Letson's Case is that of United States Bank v. Devereux, 5 Cranch 61. The old Bank of the United States sued Devereux and Robertson in the circuit court of Georgia, alleging that it was a corporation established under an act of Congress of 1791, and alleging further that the petitioners, the president, directors, and company of the Bank of the United States, were citizens of the State of Pennsylvania and that Devereux and Robertson, the defendants, were citizens of Georgia, and this averment was held sufficient by the Court.

That Letson's Case overruled that of R.R. Bank of Vicksburg v. Slocum is true, and it was justly overruled, as I think. Slocum, Richards & Company sued the Bank, alleging that they were citizens of Louisiana and that the president, directors, and company of the bank were citizens of Mississippi. The bank pleaded in abatement that Lambeth and Thompson, two of the stockholders, were citizens of Louisiana. And this Court sustained that plea, whereas, according to Letson's Case, it was quite immaterial where the stockholders resided, so that the president and directors were citizens of the state where the suit was brought.

What a corporation is was very fully discussed in Devereux's Case, 5 Cranch 11; nor will I discuss it further here, as I do not feel called on to prove to the legal profession of this country that a corporation is not a citizen. And as no averment is made in the bill before us that the president and directors of the corporations suing are citizens of different states from the president and directors of the corporation sued, I think the demurrer ought to be sustained and the court below instructed to dismiss the bill.

I view this assumption of citizenship for a corporation as a mere evasion of the limits prescribed to the United States courts by the Constitution. The profitable corporations are owned in a great degree in the cities; there the president and directors often reside, whilst the charter was granted in another state, and there the owners keep an agency, the business being in fact conducted in the city.

Now these owners and directors may sue their next neighbors of their own state and city in the United States courts, according to the rule that the corporation is a citizen of the state where is was created and that jurisdiction depends on this sole fact.

Could I consent to pronounce from this bench an opinion deemed by myself extrajudicial, and therefore without authority, I might attempt an argument to expose the irregularity and impotence of an adjudication confined by law within

Page 56 U. S. 250

prescribed geographical limits with respect to subjects purely local whenever it should be attempted to extend the operation of such adjudication beyond the locus to which the law has allotted it. For of this character has been the action of the circuit court upon the controversy of these two corporations now before us. The Northern Indiana Railroad Company, incorporated by the State of Indiana, have complained of an invasion of their local rights, a tort to real property situated within the Territory of Indiana, by a company incorporated by, and situated within, the State of Michigan; and the circuit court for the State of Michigan, limited in its cognizance of local matters to the territory of that state, has undertaken to adjudicate upon the merits of this complaint. But irregular and futile as is the action of the circuit court of Michigan, and as it is by all here admitted to have been, can it have been more irregular than is the undertaking, on the part of this tribunal, to pronounce authoritatively upon the character of the acts, or the relative rights and powers of the parties, over which the circuit court of Michigan has claimed cognizance? Is not the warrant for cognizance by the circuit court and by this tribunal essentially -- nay, precisely, the same? Are they not both to be found, if existing at all, in the Constitution of the United States? And is it not indispensable that such cognizance should be regularly and certainly vested in the circuit court, before this Court can sanction its validity? If it be asked, by what provision of the Constitution the circuit court could assume jurisdiction of the present controversy, it must, of necessity, be referred to that (2d sec., 3d Art) provision which extends the judicial power to controversies between citizens of different states. This indeed is admitted, and the admission carries with it inevitably the implication that a corporation can and must, for certain purposes, become a citizen, and must, ex necessitate, possess the attributes of citizenship in order to obtain access to a court of the United States. Having, on a former occasion, vide the case of Rundle v. Delaware & Raritan Canal Company, 14 How. 95, endeavored to expose the incongruities involved in, and incident to, this anomalous conception, I will not now attempt a further enumeration of them beyond this obvious remark -- that citizenship and corporate existence, created by state authority, being decreed by this Court to be, to some extent at least, identical, as must be the case to authorize this Court to call the parties before them, it must follow that, to the same extent, a corporation can be a citizen, and a citizen can become a corporation. The process by which the latter transformation may be accomplished has not yet been pointed out. We are told,

Page 56 U. S. 251

by the English jurists, and by the decisions of the English courts, and so, too, in the case of the Bank of United States v. Devereux, it is laid down by Marshall, C.J., that a corporation is an invisible, intangible, artificial creature. In one sense, at least, the citizen may render himself invisible and intangible -- he may abscond. In what signification he must become artificial, amongst the infinite varieties which may be imagined, will present a question more difficult to be determined. But in the possession of a portion even of his corporate attributes, the citizen may be deemed a quasi-corporation when it shall be thought convenient, and will doubtless, in that chrysalis condition, furnish as just a representation of the integral legal entity, as the latter, in the shape of quasi-citizen, can ever supply of the real, material, and social being with whom it is sought to identify it.

Powerless and vain as probably ever will be the "still small voice" of an humble individual, in opposition to the united declaration of those justly considered the learned and the wise, still, under the most solemn conviction of duty, the effort can never be forborne to raise that humble voice in accents of alarm at whatever is believed to threaten even the sacred bark in which the safety both of the states and of the United States is freighted. I hold that beyond the Constitution of the United States there is no federal government, either in the mass or in the detail. That beyond the pale and limits prescribed by that instrument, to be interpreted not by indirect or ingenious or forced constructions or by remote implications, but by the plain and common sense import of its language, a language familiar to the common and general understanding, all is unwarranted assumption and wrong -- a termination of all legitimate federal power. Whilst, therefore, I profess, as I really feel, my belief in the wisdom and purity of those who think themselves justified in what I regard as an infringement upon the terms and objects of our only charter, I am constrained to record my solemn protest against their doctrine and their act.

On these grounds, I dissent from the opinion just pronounced, and think that this cause should have been remanded to the circuit court, with directions to dismiss it, as one over which the courts of the United States can have no jurisdiction with respect to the parties.

MR. JUSTICE CAMPBELL.

I concur fully in the opinion of the Court denying jurisdiction to the circuit court to entertain this bill. The objection made in the opinion to the exercise of jurisdiction, and which is fairly presented by the record, is sufficient to dispose of the case. The

Page 56 U. S. 252

Court has declined to determine any question upon the averments of the bill in regard to the citizenship of the parties. The question is left exactly where it was when this case was presented. I state these facts that no inference may be drawn to the contrary, and that the decision of the court may not be misunderstood.

Order

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the circuit court had no jurisdiction of the case, and on that ground the bill was properly dismissed; there was therefore no error in the decree of said court. Whereupon it is now here ordered, adjudged, and decreed, by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs.