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suits commenced or prosecuted by a State against an move it into the Circuit Court of the United States for individual, in which the latter demands nothing from the proper district. The ouly inquiry, therefore, upon the former, but only seeks the protection of the Con

this branch of the case is, whether the present suit, stitution and laws of the United States against the

looking to its nature and object as disclosed by the claim or demand of the State ; that a case in law or

record, is, in the sense of the Constitution, or within equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the

the meaning of the act of 1875, one " arising under tho Constitution or a law of the United States, whenever its

Constitution or laws of the United States." correct decision depends on the construction of either; The action was commenced by a petition filed, in bethat cases arising under the laws of the United States half of the State, against the New Orleans, Mobile and are such as grow out of the legislation of Congress, Chattanooga Railroad Company (now known as the whether they constitute the right or privilege, or claim,

New Orleans, Mobile and Texas Railroad Company), a or protection, or defense of the party, in whole or in

corporation created, in the year 1866, under the laws of part, by whom they are asserted; that except in the

Alabama, and, by an act of the Legislature of Misscases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United

issippi, passed February 7, 1867, recognized and apStates is to be exercised in its original or appellate form,

proved as a body politic and corporate in that State, or both, as the wisdom of Congress may direct; and, with authority to exercise therein the rights, powers, lastly, that it is not sufficient to exclude the judicial privileges, and franchises granted to it by the State of power of the United States from a particular case; that Alabama. it involves questions which do not at all depend on the The object of the action was to obtain a peremptory Constitution or laws of the United States; but when a

writ of mandamus, requiring the company to remove question to which the judicial power of the Union is ex

a stationary bridge, which it had erected across Pearl tended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give

river, on the line between Louisiana and Mississippi, the Circuit Courts jurisdiction of that cause, although

and construct and maintain, in the central portion of other questions of fact or of law may be involved in it. the channel of that river where the railroad crosses, a These propositions, now too firmly established to admit of, draw-bridge which, when open, will give a clear space

or to require, further discussion, embrace the present for the passage of vessels of not less than sixty feet in case, and show that the inferior State court erred, as

width, and provide, after its construction, for the well in not accepting the petition and bond for the re

opening of the draw-bridge, without unnecessary moval of the suit to the Circuit Court of the United

delay, for any and all vessels seeking to pass through it. States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after

The claim of the State is: the presentation of the petition and bond for removal.

1. That the construction and maintenance of a sta

tionary bridge across Pearl river is in violation of the N error to the Supreme Court of the State of Miss

company's charter, an obstruction to the navigation of issippi. The opinion states the case.

the river, and a public nuisance, resulting in great and HARĻAN, J. The plaintiff in error, defendant below, irreparable damage to the people of Mississippi. filed a petition in the State court of origiual jurisdic- 2. That Pearl river, by the common law and the law tion for the removal of this suit into the Circuit Court of nations, is a navigable river, in which the tide ebbs of the United States for the Southern District of Miss- and flows above said bridge, is navigable for steamissippi. The petition was accompanied by a bond, boats for more than two hundred miles, and has been with good and sufficient surety, conditioned as re- so navigated from time immemorial; that the river is quired by the statute. The application for removal the boundary between Mississippi and Louisiana, was denied, and the court, against the protest of the neither of those States having power to authorize any company, proceeded with the trial of the suit. A obstruction to its free navigation; that by an act of demurrer to the answer was sustained and judgment Congress entitled "An act to enable the people of the was entered in behalf of the State. Upon writ of western part of Mississippi Territory to form a Constierror, sued out by the company, the Supreme Court of tution and State government, and for the admission of Mississippi gave its sanction to the action of the in- said State into the Union on an equal footing with the ferior court upon the petition for removal, and affirmed, original States," passed March 1, 1817, it was, among in all respects, its judgment upon the merits.

other things, provided that the Mississippi river and The first assignment of error relates to the action of the navigable rivers and waters leading into the same, the State court in proceeding with the trial after the or into the Gulf of Mexico, shall be common highways filing of the petition and boud for removal of the suit. and forever free, as well to the iubabitants of said If the suit was one which the company was entitled, State as to other citizens of the United States;” that under the statute, to have removed into the Circuit those provisions constituted a condition on which the Court of the United States, then all that occurred in State of Mississippi was admitted into the Union, and the State court, after the filing of the petition and an engagement on the part of the United States that all bond, was in the face of the act of Congress. Gordon the navigable rivers and waters emptying into the v. Longest, 16 Pet. 104; Kanouse v. Martin, 15 How. Gulf of Mexico should forever be free to all the in208; Dunn v. Ins. Co., 19 Wall. 223-4. Its duty, by the habitants of the State of Mississippi; that Pearl river express command of the statute, was, the suit being does lead and empty into the Gulf of Mexico; that the removable, to accept the petition and bond and pro- bridge is such an obstruction to the navigatiou of ceed no further.

Pearl river as to cause permanent injury, as well to the Among the cases to which the National Constitution State of Mississippi and its inhabitants, as to the comextends the judicial power of the United States are merce of the United States and of the world, and conthose arising under the Constitution or laws of the sequently was in violation of the law. Union. The first section of the act of March 3d, 1875, The company resists the application for a mandamus determining the jurisdiction of Circuit Courts of the upon several grounds. United States, and regulating the removal of causes It affirms that the bridge in question had been confrom State courts, invests such Circuit Courts with structed and is maintained in accordance with its charoriginal jurisdiction, concurrent with the courts of the ter and conformably to the power and authority conseveral States, of all suits of a civil nature, at com- ferred by the States of Alabama, Mississippi and mon law or in equity, where the matter in dispute ex- Louisiana. ceeds, exclusive of costs, the sum or value of $500 and It further avers, in its answer, that the railroad is a "arising under the Constitution or laws of the United great public highway through those States, connecting States." Under the second section of that act either them with other portions of the United States; that party to a suit of the character just described may re- Congress, in view of the magnitude and cost of the

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work, and to expedite its construction, by an act en- or controversy which depends altogether upon the contitled "An act to establish and declare the railroad and struction and effect of an act of Congress. If it be bridges of the New Orleans, Mobile and Chattanooga insisted that the claim of the State, as set out in its railroad, as hereafter constructed, a post-road, and for petition, might possibly be determined by reference other purposes, approved March 2, 1868, authorized alone to State enactments, and without any construcand empowered that corporation to construct, build, tion of the act of 1817, the provisions of which are and maintain bridges over and across the navigable invoked by the State in support of its application for waters of the United States on the route of said rail- mandamus, the important, and so far as the defense road, between New Orleans and Mobile, for the use of is concerned, the fundamental, question would still the company and the passage of its engines, cars, trains remain, as to the construction of the act of Congress of cars, mails, passengers and merchandise, and that of March 2, 1868. That act, the company contends, the railroad and its bridges, when complete and in use, protects the present stationary bridge against all interwere to be held and deemed lawful structures and a ference whatever, upon the part either of the State or post-road; that the act of Congress required draw- of the courts. In other words, should the court be of bridges on the Pascagoula, the Bay of Beloxi, the Bay opinion that the law is for the State, if the rights of of St. Louis, and the Great Rigolet, but none on Pearl parties were tested simply by the statutes of Alabama river, power being reserved by Congress to amend or and Mississippi, it could not evade, but must meet and alter the act so as to prevent or remove material ob- determine the question distinctly raised by the answer, structions; that the company is authorized to main- as to the operation and effect of the act of Congress of tain the bridge in question under that act of Congress; 1868. that the same is a lawful structure and a post-road, Is it not then plainly a case which, in the sense of which no court can, consistently with the act of Con- the Constitution and of the statute of 1875, arises under gress, overturn or abate as illegal or as a nuisance. the laws of the United States?

On the day succeeding that on which its auswer was If regard be had to the former adjudications of this filed, the company presented the petition for removal, court, this question must be answered in the affirmto which reference has already been made, accompa- ative. nied by a bond in proper form. That petition sets out It is settled law, as established by well-considered the nature and object of the action, and claims that decisions of this court, pronounced upou full arguthe right to erect and to maintain the present bridge ment and after mature deliberation, notably in Cohens for the conveyance of the cars, trains, passengers, v. Virginia, 6 Wheat. 375; Osborne v. Bank of United mails, and merchandise, vested in the company, on a States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; Goldcontract with the State of Mississippi, in the enact- Washing and Water Co. v. Keyes, 96 U. S. 201; and ment aforesaid; that the State of Mississippi has no Davis v. Tennessee, 100 id. 264, that while the 11th power to repudiate that contract or to impair its obli- amendment of the National Coustitution excludes the gations; that it is a vested right resting on a contract judicial power of the United States from suits, in law and supported and sustained by the Constitution of or equity, commenced or prosecuted against one of the the United States, and that this cause is one arising United States by citizens of another State, such power under the Constitution of the United States."

is extended by the Constitution to suits commenced It then proceeds:

or prosecuted by a State against an individual, in “And your petitioner further represents that the which the latter demands nothing from the former, bridge aforesaid, and its maintenance over the said but only seeks tho protection of the Constitution and river in the manner in which it exists, is authorized laws of the United States against the claim or demand by the act of Congress approved March 2, 1868, which of the State; that a case in law cr equity consists of the authorized and empowered the said company to con- right of one party, as well as of the other, and may struct, build and maintain bridges over and across the properly be said to arise under the Constitution or a navigable waters of the United States on the route of law of the United States, whenever its correct decision the said railroad between Mobile and New Orleans, depends on the construction of either; that cases arisand that when constructed they should be recognized ing under the laws of the United States are such as as lawful structures and a post-road, and were declared grow out of the legislation of Congress, whether they to be such; and the Congress reserved the power to constitute the right, or privilege, or claim, or proteoalter the same when they become an obstruction to the tion, or defense of the party, in whole or in part, by navigable waters.

whom they are asserted, that except in the cases of “Your petitioner says that the railroad and bridges which this court is given, by the Constitution, original are and have been for three or more years a post-road, jurisdiction, the judicial power of the United States over which the mails of the United States have been is to be exercised in its original or appellate form, or carried and are now being carried, and as the bridge both, as the wisdom of Congress may direct; and referred to is a lawful structure under the laws of the lastly, that it is not sufficient to exclude the judicial United States, this suit impugns the rights, privileges, power of the United States from a particular case, that and franchises granted by the act of Congress aforesaid it involves questions which do not at all depend on the of the 2d March, 1868."

Constitution or laws of the United States; but when From this analysis of the pleadings, and of the petition a question to which the judicial power of the Union is for removal, it will be observed that the contention of extended by the Constitution forms an ingredient of the State rests, in part, upon the ground that the con- the original cause, it is within the power of Congress struction and maintenance of the bridge in question is to give the Circuit Courts jurisdiction of that cause, in violation of the condition on which Mississippi was although other questions of fact or of law may be inadmitted into the Union, and inconsistent with the volved in it. engagement, on the part of the United States, as ex- These propositions, now too firmly established to pressed in the act of March 1, 1817. On the other admit of or to require further discussion, embrace the hand, the railroad company, in support of its right to present case, and show that whether we look to the construct and maintain the present bridge across Pearl Federal question raised by the State in its original river, invokes the protection of the act of Congress petition, or to the Federal question raised by the compassed March 2, 1868. While the case raises questions pany in its answer, the inferior State court erred, as which may involve the construction of State enact- well in not accepting the petition and bond for the rements, and also, perhaps, general principles of law, not moval of the suit to the Circuit Court of the United necessarily connected with any Federal question, the States, as in thereafter proceeding to hear the cause. suit otherwise presents a real and substantial dispute It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal. expense, and hired help to conduct the business of the

In view of our decisions in In8. Co. v. Dunn, 19 bakery; and that he has not realized any moneys from Wall. 214, in Removal cases, 100 U. S. 475, and in other the business carried on at the place, and was unable to cases, it is scarcely necessary to say that the railroad make the business pay expenses, but was obliged to company did not lose its right to raise this question close it, to his damage $750, which he sets up as a of jurisdiction by contesting the case upon the merits counter-claim against the plaintiffs. The answer denies in the State courts, after its application for the re- all the allegations of the complaint not thus admitted moval of the suit had been disregarded. It remained or denied, and demands judgment against the plaintiffs, in the State court under protest as to the right of that that the complaint be dismissed with costs, and that court to proceed further in the suit, and there is he have judgment against the plaintiffs for $750. This nothing in the record to show that it waived its right answer was put in September 13, 1880. A reply, sworn to have the case removed to the Federal court, and to September 15, 1880, was put in by the plaiutiffs, reconsented to proceed in the State court, as if there had plying "to the allegations of counter-claim contained been no petition and bond for the removal.

in the answer,” and denying each and every of said The judgment of the Supreme Court of Mississippi allegations. is therefore reversed and the cause remanded for such On the 10th of September, 1880, the defendant preorders as may be consistent with this opinion, and with sented to the State court a petition, signed and sworn directions that the court of original jurisdiction be to by him September 18, 1880, setting forth the pen. required to set aside all judgments and orders made dency of the suit as an action commenced and pending in this suit after the presentation of the petition and by the plaintiffs against the defendant; that the plaintbond or its removal into the Circuit Court of the iffs are, and were at the time of the commencement of United States, and proceed no further in the suit. the action, citizens of New York, and the defendant a

Mr. Justice Field did not hear the argument of thls citizen of New Jersey; "that tho matter in dispute in case, and therefore did not participate in its decision. this action exceeds, exclusivo of costs, the sum or value Mr. Justice Miller dissented.

of $500;” that “the defendant has appeared in this ac

tion, in this court, and answered the complaint;" that REMOVAL OF CAUSE-COUNTER-CLAIM ES

the action had not yet been tried; and that no term TABLISHING AMOUNT IN DISPUTE.

had passed since it was commenced at which it could

be tried. The petition prays that “the said suit may UNITED STATES CIRCUIT COURT, SOUTHERN DIS

be removed” to this court. The proper bond was TRICT OF NEW YORK, NOVEMBER 15, 1880.

given and approved by the State court, and on the 20th

of September, 1880, that court made an order ex parte CLARKSON V. MANSON.

which recites tho contents of the petition and tho

tenor of the bond; and “on reading and filing a copy Plaintiff brought action in the Marine Court of New York to

of the pleadings in said action," and the petition and recover a balance of $195, for articles sold. Defendant, in his answer, alleged fraud and misrepresentation in

the bond, orders that the petition and bond be acthe sale injuring him to the extent of $750, which he set

cepted, and declares that said court will proceed no up as a counter-claim. The New York statute in such a further in the suit, it being removed to this court. Afcase, if the demands of both parties are established, al- terward, and before the commencement of the next lows defendant judgment for the excess of the counter- term of this court, and before a copy of the record in claim over plaintiff's demand. The parties were resi- the State court was filed in this court, that court mado dents of different States. Held, that the amount in dis

an order vacating the said order of removal. The pute exceeded $500, so as to authorize a removal of the

ground assigned for making this second order, in the cause to the United States court, under the act of

decision made by Judge McAdam, the judge of the March 3, 1875.

State court, was that the amount in dispute in the suit OTION to remand case to Marine Court of the city

was only the amount stated in the complaint, and not of New York. The opinion states the facts. the amount claimed in the counter-claim set up in the Ira D. Warren and John Bassett, Jr., for the motion.

answer; and that as the matter in dispute did not exD. M. Porter and George H. Kracht opposed.

ceed, exclusive of costs, the sum or value of $500, the

case was not one for a removal under section 2 of the BLATCHFORD, C. J. The plaintiffs brought this suit act of March 3, 1875 (18 U. S. Stats. at Large, 470). Notagainst the defendant in the Marine Court of the city withstanding this second order, the defendant, claimof New York to recover the sum of $195 as a balance ing that the suit was removed to this court, filed in unpaid on a sale of the fixtures of a store and bake- this court, on the first day of this term, a certified house. The answer put in, in the State court, sets up copy from the State court of the proceedings therein that the plaintiffs, with intent to defraud, falsely rep- to and including the order of removal, and entered an resented to the defendants that the bake-house was a order ex parte, as an order of course not sigued by a profitable business place, and that one Ott, a former judge, reciting the filing of said copy record, and orproprietor of it, had done a profitable business at it, dering that the cause proceed no further in the State and thus induced the defendant to hire the store; that court, and that it proceed in this court in the same the plaintiffs also represented that they owned the store manner as if it had been originally commenced therein, and the bakery fixtures in it, and offered to sell them and that the appearance of the defendant be and was to him; that he, to secure for one day the right to pur- thereby entered. chase them, paid to plaintiffs $5, as a deposit, on the The plaintiff now moves for an order vacating the agreement that if he was not satisfied with the fixtures, order so entered in this court, and remanding this acthe $5 should be forfeited; that the defendant, not tion to the State court and striking from the files of being satisfied with the store and fixtures, immedi- this court the record so filed here. It appears when ately potitied the plaintiffs thereof; that the place had the order of removal was made the pleadings in this never been a profitable business place for a bakery ; case were none of them exhibited to the judge of the that Ott closed it because he could not make it pay the State court, although the order of removal recited that expenses of keeping it; that the fixtures were mort- they were read. They were presented on the making gaged and were owned by Ott and not by the plaintiffs; of the second order. that the plaintiffs knew this; that the defendant, re- The second section of the act of 1875 provides that lying on such representations and believing them to be “any suit

where the matter in dispute extrue, rented the store and furnished it with new fix- ceeds, exclusive of costs, the sum or value of $500,' tures and made repairs in it, and fitted it up at great in which there shall be a controversy between citizens

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of different States

either party may remove plaintiff and the plaintiff into a defendant, and jurissaid suit." The defendant here contends that the diction of the person of the plaintiff is obtained by the matter in dispute, ou the issue raised by the counter- fact that plaintiff came into court and brought the declaim in tho answer, and the reply thereto, exceeds fendant in first, in the action brought by the plaintiff. $500, exclusive of costs; that there is a controversy in It clearly makes a case for removal. But what is to be regard to such matter, made a controversy conclusively removed? The act of 1875 says that "said suit" is to by the plaintiff, by his reply to the counter-claim; and be removed! Is the proceeding or action by the dethat on this ground the defendant can remove the fendant, his affirmative claim, the only thing that is to whole suit into this court.

be removed, leaving the claim of the plaintiffs to be Under the New York Code of Civil Procedure (sec- litigated in the State court, the former claim being tion 500) an answer may contain a counter-claim, that $750 and the latter $195? In view of the facts, that the is, a statement of new matter constituting a counter- suit is in form one brought by the plaintiffs against the claim. Such counter-claim (section 501) must tend in defendant, and includes the plaintiffs' claim, by the some way to diminish or defeat the plaintiff's recovery, voluntary act of the plaintiffs, and is made to include and must be one of certain specified causes of action. the defendant's claim by the operation of the statute A plaintiff may (sections 494, 495, 496) demur to a coun- of New York; and that thus there is but one suit, ter-claim, distinctly specifying the objections, one of though there are two controversies in it, and that the which may be that the counter-claim is not of the char- whole suit is to be removed, and that either party may acter specified in section 501. Where a counter-claim remove it, and that the counter-claim necessarily “must is established which equals the plaintiff's demand, tend in some way to diminish or defeat the plaintiffs' judgment goes for the defendant. Where it is less than recovery," it follows that the whole suit is removed, the plaintiff's demand the plaintiff has judgment for including all the issues, by the complaint, the answer the residue. Where it exceeds the plaintiff's demand and counter-claim and the reply. the defendant has judgment for the excess, or so much The case of West v. Aurora City, 6 Wall. 139, is not thereof as is due from the plaintiff (section 503). The in point. The facts there were not at all like the facts plaintiff, if he does not demur, may reply to the coun- in this case, and it arose under a different statute. ter-claim denying what he controverts (section 514). In McLean v. St. Paul, etc., Railway Co., 16 Blatchf.

A counter-claim is held to be an affirmation of a cause C. C. 309, a construction was given to section 2 of of action against the plaintiff, in the nature of a cross the act of 1875, to the effect that a suit where the reaction, and upon which the defendant may have an quisite citizenship for removal did not exist when the affirmative judgment against the plaintiff. As a cross suit was brought, might become removable by the ocaction, setting forth a cause of action by the defendant currence of the requisite citizenship during the pendagainst the plaintiffs, and demanding a judgment ency of the suit. Under that ruling it must be held thereon for $750 (in addition to the dismissal of the that it is not necessary that the requisite amount in plaintiffs' complaint and the defeat of the plaintiff's' dispute should appear to have existed when the suit claim), the claim in which cross action is disputed by was brought. After proceedings for removal are comthe plaintiffs by the reply, the counter-claim clearly pleted, a party cannot be deprived of his right, by any brings into the suit a matter in dispute which exceeds action of the State court or of the other party, in re$500 in value. Even if the defendant should have judg- ducing the amount appearing to be in dispute. Kanouse ment only for the difference between $195 and $750, v. Martin, 15 How. 198. But there is nothing to prethat would be more than $500; but he claims $750, and vent a State court from allowing an insufficient amount that the plaintiffs shall have no judgment. There may in dispute to become an adequate amount, under the be two actions in one point of view. One may be re- act of 1875, or prevent such insufficient amount from garded as an action by the plaintiffs against the defend- becoming an adequate amount under that act by the ant to recover the $195. The plaintiffs may fail to re- operation of the statute of New York and the lawful cover any part of that, or they may recover a part of acts of the parties to the suit thereunder. it, or they may recover the whole of it, The answer, The motion to remand the suit and for other relief and the counter-claim in it, may have the effect, if is denied. proved, to diminish or defeat the plaintiffs' recovery (section 501). If the plaintiffs' recovery is wholly de- REMOVAL OF CRIMINAL CAUSEON GROUND feated, then the defendant becomes actor, and may

OF ALIENAGE. recover judgment for the whole or a part of the $750. Still both proceedings are in one suit, as the word

U.S. CIRCUIT COURT, NEW HAMPSHIRE, OCTOBER 8, “suit" is used in the act of 1875. The first section of

1880. tbe act of 1875 uses the expressions " suits of a civil nature,' "civil action” and “civil suit" as synony

STATE OF NEW HAMPSHIRE V. GRAND TRUNK RAIL The second section of that act uses the expressions “suits of a civil nature” and “said suit in

WAY. the same sense. The third section of that act uses the The doctrine that the Federal courts will in the construcexpressions suit,” and “such suit," and "the cause, tion of the statute law of a State follow the decision of and " action," in the same sense. The same is true of the highest State courts, reaffirmed. the same words, and also of the word case," when

The act of Congress of March 3, 1875, relating to the reused in the subsequent sections of that act. In the

moval of cases from State to Federal courts, does not

provide for the removal of a criminal action on the sense of sections 2 aud 6 of the old Code of Civil

ground of alienage. Procedure of New York (unrepealed), the proceeding

(OTION to remand to State court. The opinion $750 is an action, and a civil action, the defendant be

states the case. ing permitted to become actor in the given case. The

Mr. Ladd, for plaintiff. statutes of New York now use the word “action," and discard all other terms. The proceeding by the de

Ray, Drew & Jordan, for defendant. fendant against the plaintiff's being a civil action, in a CLARK, D. J. At the Supreme Court of the State of suit of a civil nature, and the matter in dispute in it New Hampshire, holden at Lancaster, in the county of exceeding, exclusive of costs, the sum or value of $500, Coos, on the fourth Tuesday of April, 1877, the Grand it is brought in the State court, under the authority of Trunk Railway, a corporation establisbed under the the statute of New York, in the form in which it is laws of Canada, was indicted by the grand jury for brought, although the defendant is turned into a that county for carelessly and negligently injuring one

mous.

by the defendant against the plaintiffs to recover the Mo

State court. This court had no jurisdiction of the subject-matter of it when commenced. It has not now. The statute of 1875 ($ 2, ch. 137, vol. 18, p. 470, U. S. Stat, at Large), under which it is claimed the removal of this cause is authorized, provides only for the removal of causes of a civil nature. This is criminal. There is no doubt that when there is proper authority for it, a criminal case may be removed from a State court to the Federal courts. It was so held in Tennessee v. Davis, 100 U. S. 257. But there is no provision for the removal of a cause like this under the act of March 3, 1875, on which the removal depends. The removal of the case of Tennessee v. Davis was under an entirely different statute and for an entirely different reason. Iu that case arose the question or right of the Federal authorities to protect their officers in the discharge of their duty. Here is only a claim of citizenship or alienage, and it cannot be pretended, successfully, that the statute makes provision for the removal of a criminal cause on that account.

MARITIME LAW-DUTY OF SHIP-OWNER TO RETURN MARINER TO PORT

OF SHIPMENT.

UNITED STATES DISTRICT COURT, E. D. MISSOURI,

JUNE 15, 1880.

John E. Willis, at West Milan, in said county, so that he died of his injuries.

The statute of New Hampshire, under which the indictment was found, is as follows (Gen. Laws N. H. 635, $ 14): “If the life of any person not in their employment shall be lost by reason of the negligence or carelessness of the proprietors of any railroad, or by the unfitness or gross negligence or carelessness of their servants or agents in this State, such proprietors shall be fined not exceeding $5,000, nor less than $500, and one-half of such fine shall go to the widow, and the other half to the children of the deceased. If there is no child, the whole shall go to the widow, and if no widow, to his heirs, according to the law regulating the distribution of intestate estates."

Upon the finding of this indictment the railway was summoned to appear; and it did appear at the next November term of the court, and by its attorneys petitioned that the cause might be removed to this court, for the reason that the Grand Trunk Railway was a foreign corporation, established by the laws of Canada, an alien corporation, and because the penalty or fine to be imposed exceeded $500, exclusive of costs, to wit, the sum of $5,000, which penalty or fine tho complainants — the widow, administrator, and heirs of John E. Willis -- were seeking to recover in the suit, or by this indictment.

Upon the filing of this petition and the requisite bond, objection was made by the State that this was not a civil proceeding or suit, but was a criminal prosecution, and that it did not appear that the amount in dispute exceeded the sum of $500. The cause was therefore ordered continued,” and the question thus raised transferred to the full bench of the Supreme Court of the State. At the March term of that court, 1879, the court gave its opinion that the proceeding was not of a civil nature, but was a criminal proceeding to enforce a penalty for the infraction of a State law."

In the meantime the cause was brought to this court, and entered here the May term, 1878. At the same term a motion was made to remand the cause to the State court, because, among other things, the cause was a criminal proceeding, and there is no sum in controversy exceeding the sum of $500. For the first of these reasons, if not for the other, we think the motion must be granted. It is well settled by numerous decisions that in construing local or State statutes the Federal courts will follow the construction given to such statutes by the highest courts of the respective States.

Such decisions are, in some of the cases, said to be as binding as the text of the statute. McKeen v. Delancy, 5 Cr. 22; Polk’s Lessee v. Wendall, 9 id. 87; Thutcher v. Powell, 6 Wheat, 119; McDowell v. Peyton, 10 id. 454; Shelby v. Guy, 11 id. 361; NicCheny v. Silliman, 3 Pet. 270; Harpending v. Dutch Church, 16 id. 455; Smith v. Kernocher, ~ How. 198; Nesmith v. Sheldon, id. 812; V'an Ransaler v. Kearney, 11 id. 297 ; Webster v. Cooper, 14 id. 488, 504; Leffinguell v. Warren, 2 Blk. 599; Gelpcke v. City of Dubuque, 1 Wall. 175; Christy v. Pridgeon, 4 id. 196; Nichols v. Levy, 5 id. 453; City of Richmond v. Smith, 15 id. 429.

So closely and carefully has this rule been followed that if the highest court of a State adopts new views as to the proper construction of a State statute, and reverses its former decision, the Federal courts will follow the latest decision of the State court. Leffingwell v. Warren, 2 Black, 599; United States v. Morison, 4 Pet. 124; Green v. Neal's Lessee, 6 id. 291.

The Supreme Court of New Hampshire, the highest court of the State, having, in this case, given a construction to the statute that it is, in substance, a penal statute, and that a suit or proceeding upon it is a criminal proceeding, for an infraction of a law of the State, this court must adopt that construction. If so, it is quite clear this cause must be remanded to the

WORTH V, STEAMBOAT LIONESS. Where there are no shipping articles and no prescribed

voyage stated, the implied contract or legal presumption when a mariner is shipped is that he is to be returned to the port of shipment. This applies to internal as well as to ocean navigation. Accordingly where mariners were shipped at a port on the Ohio river on a vessel engaged in towing on that river and on the Mississippi, and the voyage was broken up at a point on the Mississippi by reason of obstruction by ice, held, that they were entitled to recover from the owner of the vessel the expense of returning home by railroad from that point and wages until their arrival at the port of

shipment. N admiralty. Libel upon steamboat Lioness No. 2, to

recover wages claimed to be due libellants as mariners and expenses incurred by them in returning from the port where they were discharged to their port of shipment. The opinion states the case.

H. E. Mills and J. P. Dawson, for libellants.
H. A. & A. C. Clover, for claimants.

TREAT, D. J. The demands are by mariners, under shipping contracts. The libellants shipped respectively at Pittsburg and Louisville, without shipping articles or any express statemeut as to the proposed voyage. All parties knew that the vessel was engaged in towing claimant's barges from one point on the Ohio river to another point on the same river, and also to different points on the Mississippi river. The vessel, in the course of her voyaging, encountered ice in the Mississippi and laid up at Bushburg,about twenty miles below St. Louis. As it was uncertain how long she might be detained, the voyage was broken up and the libellants were discharged, receiving the wages earned to that time. They insisted upon a sum additional, sufficient to return them to their respective ports of shipment, which request was refused. The libels are to recover the necessary expenses of their return, and for the additional sum of $30 each.

It is obvious that the detention of the crew on full pay until the winter season ended, or the river was clear of ice, might have been very expensive to the vessel; yet their right to be transported to their port of shipment is well settled, A mariner who ships for a voyage cannot be discharged without cause in a foreign port without the knowu legal results. Wheu

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