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suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State; that a case in law or equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either; that cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim, or protection, or defense of the party, in whole or in part, by whom they are asserted; that except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appeilate form, or both, as the wisdom of Congress may direct; and, lastly, that it is not sufficient to exclude the judicial power of the United States from a particular case; that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. These propositions, now too firmly established to admit of, or to require, further discussion, embrace the present case, and show that the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal.

IN error to the Supreme Court of the State of Miss

issippi. The opinion states the case.

HARLAN, J. The plaintiff in error, defendant below, filed a petition in the State court of original jurisdiction for the removal of this suit into the Circuit Court of the United States for the Southern District of Mississippi. The petition was accompanied by a bond, with good and sufficient surety, conditioned as required by the statute. The application for removal was denied, and the court, against the protest of the company, proceeded with the trial of the suit. A demurrer to the answer was sustained and judgment was entered in behalf of the State. Upon writ of error, sued out by the company, the Supreme Court of Mississippi gave its sanction to the action of the inferior court upon the petition for removal, and affirmed, in all respects, its judgment upon the merits.

The first assignment of error relates to the action of the State court in proceeding with the trial after the filing of the petition and bond for removal of the suit. If the suit was one which the company was entitled, under the statute, to have removed into the Circuit Court of the United States, then all that occurred in the State court, after the filing of the petition and bond, was in the face of the act of Congress. Gordon v. Longest, 16 Pet. 104; Kanouse v. Martin, 15 How. 208; Dunn v. Ins. Co., 19 Wall. 223-4. Its duty, by the express command of the statute, was, the suit being removable, to accept the petition and bond and proceed no further.

Among the cases to which the National Constitution extends the judicial power of the United States are those arising under the Constitution or laws of the Union. The first section of the act of March 3d, 1875, determining the jurisdiction of Circuit Courts of the United States, and regulating the removal of causes from State courts, invests such Circuit Courts with original jurisdiction, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500 and "arising under the Constitution or laws of the United States." Under the second section of that act either party to a suit of the character just described may re

move it into the Circuit Court of the United States for the proper district. The only inquiry, therefore, upon this branch of the case is, whether the present suit, looking to its nature and object as disclosed by the record, is, in the sense of the Constitution, or within the meaning of the act of 1875, one "arising under the Constitution or laws of the United States."

The action was commenced by a petition filed, in behalf of the State, against the New Orleans, Mobile and Chattanooga Railroad Company (now known as the New Orleans, Mobile and Texas Railroad Company), a corporation created, in the year 1866, under the laws of Alabama, and, by an act of the Legislature of Mississippi, passed February 7, 1867, recognized and approved as a body politic and corporate in that State, with authority to exercise therein the rights, powers, privileges, and franchises granted to it by the State of Alabama.

The object of the action was to obtain a peremptory writ of mandamus, requiring the company to remove a stationary bridge, which it had erected across Pearl river, on the line between Louisiana and Mississippi, and construct and maintain, in the central portion of the channel of that river where the railroad crosses, a draw-bridge which, when open, will give a clear space for the passage of vessels of not less than sixty feet in width, and provide, after its construction, for the opening of the draw-bridge, without unnecessary delay, for any and all vessels seeking to pass through it. The claim of the State is:

1. That the construction and maintenance of a stationary bridge across Pearl river is in violation of the company's charter, an obstruction to the navigation of the river, and a public nuisance, resulting in great and irreparable damage to the people of Mississippi.

2. That Pearl river, by the common law and the law of nations, is a navigable river, in which the tide ebbs and flows above said bridge, is navigable for steamboats for more than two hundred miles, and has been so navigated from time immemorial; that the river is the boundary between Mississippi and Louisiana, neither of those States having power to authorize any obstruction to its free navigation; that by an act of Congress entitled "An act to enable the people of the western part of Mississippi Territory to form a Constitution and State government, and for the admission of said State into the Union on an equal footing with the original States," passed March 1, 1817, it was, among other things, provided "that the Mississippi river and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways and forever free, as well to the inhabitants of said State as to other citizens of the United States;" that those provisions constituted a condition on which the State of Mississippi was admitted into the Union, and an engagement on the part of the United States that all the navigable rivers and waters emptying into the Gulf of Mexico should forever be free to all the inhabitants of the State of Mississippi; that Pearl river does lead and empty into the Gulf of Mexico; that the bridge is such an obstruction to the navigation of Pearl river as to cause permanent injury, as well to the State of Mississippi and its inhabitants, as to the commerce of the United States and of the world, and consequently was in violation of the law.

The company resists the application for a mandamus upon several grounds.

It affirms that the bridge in question had been constructed and is maintained in accordance with its charter and conformably to the power and authority conferred by the States of Alabama, Mississippi and Louisiana.

It further avers, in its answer, that the railroad is a great public highway through those States, connecting them with other portions of the United States; that Congress, in view of the magnitude and cost of the

work, and to expedite its construction, by an act entitled "An act to establish and declare the railroad and bridges of the New Orleans, Mobile and Chattanooga railroad, as hereafter constructed, a post-road, and for other purposes," approved March 2, 1868, authorized and empowered that corporation to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of said railroad, between New Orleans and Mobile, for the use of the company and the passage of its engines, cars, trains of cars, mails, passengers and merchandise, and that the railroad and its bridges, when complete and in use, were to be held and deemed lawful structures and a post-road; that the act of Congress required drawbridges on the Pascagoula, the Bay of Beloxi, the Bay of St. Louis, and the Great Rigolet, but none on Pearl river, power being reserved by Congress to amend or alter the act so as to prevent or remove material obstructions; that the company is authorized to maintain the bridge in question under that act of Congress; that the same is a lawful structure and a post-road, which no court can, consistently with the act of Congress, overturn or abate as illegal or as a nuisance.

On the day succeeding that on which its answer was filed, the company presented the petition for removal, to which reference has already been made, accompanied by a bond in proper form. That petition sets out the nature and object of the action, and claims that the right to erect and to maintain the present bridge for the conveyance' of the cars, trains, passengers, mails, and merchandise, vested in the company, "on a contract with the State of Mississippi, in the enactment aforesaid; that the State of Mississippi has no power to repudiate that contract or to impair its obligations; that it is a vested right resting on a contract and supported and sustained by the Constitution of the United States, and that this cause is one arising under the Constitution of the United States."

It then proceeds:

"And your petitioner further represents that the bridge aforesaid, and its maintenance over the said river in the manner in which it exists, is authorized by the act of Congress approved March 2, 1868, which authorized and empowered the said company to construct, build and maintain bridges over and across the navigable waters of the United States on the route of the said railroad between Mobilo and New Orleans, and that when constructed they should be recognized as lawful structures and a post-road, and were declared to be such; and the Congress reserved the power to alter the same when they become an obstruction to the navigable waters.

"Your petitioner says that the railroad and bridges are and have been for three or more years a post-road, over which the mails of the United States have been carried and are now being carried, and as the bridge referred to is a lawful structure under the laws of the United States, this suit impugns the rights, privileges, and franchises granted by the act of Congress aforesaid of the 2d March, 1868."

From this analysis of the pleadings, and of the petition for removal, it will be observed that the contention of the State rests, in part, upon the ground that the construction and maintenance of the bridge in question is in violation of the condition on which Mississippi was admitted into the Union, and inconsistent with the engagement, on the part of the United States, as expressed in the act of March 1, 1817. On the other hand, the railroad company, in support of its right to construct and maintain the present bridge across Pearl river, invokes the protection of the act of Congress passed March 2, 1868. While the case raises questions which may involve the construction of State enactments, and also, perhaps, general principles of law, not necessarily connected with any Federal question, the suit otherwise presents a real and substantial dispute

or controversy which depends altogether upon the construction and effect of an act of Congress. If it be insisted that the claim of the State, as set out in its petition, might possibly be determined by reference alone to State enactments, and without any construction of the act of 1817, the provisions of which are invoked by the State in support of its application for mandamus, the important, and so far as the defense is concerned, the fundamental, question would still remain, as to the construction of the act of Congress of March 2, 1868. That act, the company contends, protects the present stationary bridge against all interference whatever, upon the part either of the State or of the courts. In other words, should the court be of opinion that the law is for the State, if the rights of parties were tested simply by the statutes of Alabama and Mississippi, it could not evade, but must meet and determine the question distinctly raised by the answer, as to the operation and effect of the act of Congress of 1868.

Is it not then plainly a case which, in the sense of the Constitution and of the statute of 1875, arises under the laws of the United States?

If regard be had to the former adjudications of this court, this question must be answered in the affirmative.

It is settled law, as established by well-considered decisions of this court, pronounced upon full argument and after mature deliberation, notably in Cohens v. Virginia, 6 Wheat. 375; Osborne v. Bank of United States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; GoldWashing and Water Co. v. Keyes, 96 U. S. 201; and Davis v. Tennessee, 100 id. 264, that while the 11th amendment of the National Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a Stato against an individual, in which the latter demands nothing from the former, but only seeks tho protection of the Constitution and laws of the United States against the claim or demand of the State; that a case in law or equity consists of the right of one party, as well as of the other, and may properly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either; that cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defense of the party, in whole or in part, by whom they are asserted, that except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and lastly, that it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.

These propositions, now too firmly established to admit of or to require further discussion, embrace the present case, and show that whether we look to the Federal question raised by the State in its original petition, or to the Federal question raised by the company in its answer, the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after

the presentation of the petition and bond for removal. In view of our decisions in Ins. Co. v. Dunn, 19 Wall. 214, in Removal cases, 100 U. S. 475, and in other cases, it is scarcely necessary to say that the railroad company did not lose its right to raise this question of jurisdiction by contesting the case upon the merits in the State courts, after its application for the removal of the suit had been disregarded. It remained in the State court under protest as to the right of that court to proceed further in the suit, and there is nothing in the record to show that it waived its right to have the case removed to the Federal court, and consented to proceed in the State court, as if there had been no petition and bond for the removal.

The judgment of the Supreme Court of Mississippi is therefore reversed and the cause remanded for such orders as may be consistent with this opinion, and with directions that the court of original jurisdiction be required to set aside all judgments and orders made in this suit after the presentation of the petition and bond for its removal into the Circuit Court of the United States, and proceed no further in the suit.

Mr. Justice Field did not hear the argument of this case, and therefore did not participate in its decision. Mr. Justice Miller dissented.

REMOVAL OF CAUSE - COUNTER-CLAIM ESTABLISHING AMOUNT IN DISPUTE.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK, NOVEMBER 15, 1880.

CLARKSON v. MANSON.

Plaintiff brought action in the Marine Court of New York to recover a balance of $195, for articles sold. Defendant, in his answer, alleged fraud and misrepresentation in the sale injuring him to the extent of $750, which he set up as a counter-claim. The New York statute in such a case, if the demands of both parties are established, allows defendant judgment for the excess of the counterclaim over plaintiff's demand. The parties were residents of different States. Held, that the amount in dispute exceeded $500, so as to authorize a removal of the cause to the United States court, under the act of March 3, 1875.

MOTION to remand case to Marine Court of the city

of New York. The opinion states the facts.

Ira D. Warren aud John Bassett, Jr., for the motion. D. M. Porter and George H. Kracht opposed. BLATCHFORD, C. J. The plaintiffs brought this suit against the defendant in the Marine Court of the city of New York to recover the sum of $195 as a balance unpaid on a sale of the fixtures of a store and bakehouse. The answer put in, in the State court, sets up that the plaintiffs, with intent to defraud, falsely represented to the defendants that the bake-house was a profitable business place, and that one Ott, a former proprietor of it, had done a profitable business at it, and thus induced the defendant to hire the store; that the plaintiffs also represented that they owned the store and the bakery fixtures in it, and offered to sell them to him; that he, to secure for one day the right to purchase them, paid to plaintiffs $5, as a deposit, on the agreement that if he was not satisfied with the fixtures, the $5 should be forfeited; that the defendant, not being satisfied with the store and fixtures, immediately notified the plaintiffs thereof; that the place had never been a profitable business place for a bakery; that Ott closed it because he could not make it pay the expenses of keeping it; that the fixtures were mortgaged and were owned by Ott and not by the plaintiffs; that the plaintiffs knew this; that the defendant, relying on such representations and believing them to be true, rented the store and furnished it with new fixtures and made repairs in it, and fitted it up at great

expense, and hired help to conduct the business of the bakery; and that he has not realized any moneys from the business carried on at the place, and was unable to make the business pay expenses, but was obliged to close it, to his damage $750, which he sets up as a counter-claim against the plaintiffs. The answer denies all the allegations of the complaint not thus admitted or denied, and demands judgment against the plaintiffs, that the complaint be dismissed with costs, and that he have judgment against the plaintiffs for $750. This answer was put in September 13, 1880. A reply, sworn to September 15, 1880, was put in by the plaintiffs, replying to the allegations of counter-claim contained in the answer," and denying each and every of said allegations.

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On the 10th of September, 1880, the defendant presented to the State court a petition, signed and sworn to by him September 18, 1880, setting forth the pendency of the suit as an action commenced and pending by the plaintiffs against the defendant; that the plaintiffs are, and were at the time of the commencement of the action, citizens of New York, and the defendant a citizen of New Jersey; "that the matter in dispute in this action exceeds, exclusive of costs, the sum or value of $500;" that "the defendant has appeared in this action, in this court, and answered the complaint;” that the action had not yet been tried; and that no term had passed since it was commenced at which it could be tried. The petition prays that "the said suit may be removed" to this court. The proper bond was given and approved by the State court, and on the 20th of September, 1880, that court made an order ex parte which recites the contents of the petition and the tenor of the bond; and "on reading and filing a copy of the pleadings in said action," and the petition and the bond, orders that the petition and bond be accepted, and declares that said court will proceed no further in the suit, it being removed to this court. Afterward, and before the commencement of the next term of this court, and before a copy of the record in the State court was filed in this court, that court mado an order vacating the said order of removal. The ground assigned for making this second order, in the decision made by Judge McAdam, the judge of the State court, was that the amount in dispute in the suit was only the amount stated in the complaint, and not the amount claimed in the counter-claim set up in the answer; and that as the matter in dispute did not exceed, exclusive of costs, the sum or value of $500, the case was not one for a removal under section 2 of the act of March 3, 1875 (18 U. S. Stats. at Large, 470). Notwithstanding this second order, the defendant, claiming that the suit was removed to this court, filed in this court, on the first day of this term, a certified copy from the State court of the proceedings therein to and including the order of removal, and entered au order ex parte, as an order of course not signed by a judge, reciting the filing of said copy record, and ordering that the cause proceed no further in the State court, and that it proceed in this court in the same manner as if it had been originally commenced therein, and that the appearance of the defendant be and was thereby entered.

The plaintiff now moves for an order vacating the order so entered in this court, and remanding this action to the State court and striking from the files of this court the record so filed here. It appears when the order of removal was made the pleadings in this case were none of them exhibited to the judge of the State court, although the order of removal recited that they were read. They were presented on the making of the second order.

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of different States * * * either party may remove said suit." The defendant here contends that the matter in dispute, on the issue raised by the counterclaim in the answer, and the reply thereto, exceeds $500, exclusive of costs; that there is a controversy in regard to such matter, made a controversy conclusively by the plaintiff, by his reply to the counter-claim; and that on this ground the defendant can remove the whole suit into this court.

Under the New York Code of Civil Procedure (section 500) an answer may contain a counter-claim, that is, a statement of new matter constituting a counterclaim. Such counter-claim (section 501) must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of certain specified causes of action. A plaintiff may (sections 494, 495, 496) demur to a counter-claim, distinctly specifying the objections, one of which may be that the counter-claim is not of the character specified in section 501. Where a counter-claim is established which equals the plaintiff's demand, judgment goes for the defendant. Where it is less than the plaintiff's demand the plaintiff has judgment for the residue. Where it exceeds the plaintiff's demand the defendant has judgment for the excess, or so much thereof as is due from the plaintiff (section 503). The plaintiff, if he does not demur, may reply to the counter-claim denying what he controverts (section 514).

A counter-claim is held to be an affirmation of a cause of action against the plaintiff, in the nature of a cross action, and upon which the defendant may have an affirmative judgment against the plaintiff. As a cross action, setting forth a cause of action by the defendant against the plaintiffs, and demanding a judgment thereon for $750 (in addition to the dismissal of the plaintiffs' complaint and the defeat of the plaintiffs' claim), the claim in which cross action is disputed by the plaintiffs by the reply, the counter-claim clearly brings into the suit a matter in dispute which exceeds $500 in value. Even if the defendant should have judgment only for the difference between $195 and $750, that would be more than $500; but he claims $750, and that the plaintiffs shall have no judgment. There may be two actions in one point of view. One may be regarded as an action by the plaintiffs against the defendant to recover the $195. The plaintiffs may fail to recover any part of that, or they may recover a part of it, or they may recover the whole of it, The answer, and the counter-claim in it, may have the effect, if proved, to diminish or defeat the plaintiffs' recovery (section 501). If the plaintiffs' recovery is wholly defeated, then the defendant becomes actor, and may recover judgment for the whole or a part of the $750. Still both proceedings are in one suit, as the word "suit" is used in the act of 1875. The first section of the act of 1875 uses the expressions "suits of a civil nature," "civil action" and "civil suit" as synonymous. The second section of that act uses the expressions "suits of a civil nature" and said suit" in the same sense. The third section of that act uses the

expressions "suit," and "such suit," and "the cause," and "action," in the same sense. The same is true of the same words, and also of the word "case," when used in the subsequent sections of that act. In the sense of sections 2 and 6 of the old Code of Civil Procedure of New York (unrepealed), the proceeding

plaintiff and the plaintiff into a defendant, and jurisdiction of the person of the plaintiff is obtained by the fact that plaintiff came into court and brought the defendant in first, in the action brought by the plaintiff. It clearly makes a case for removal. But what is to be removed? The act of 1875 says that "said suit" is to be removed! Is the proceeding or action by the defendant, his affirmative claim, the only thing that is to be removed, leaving the claim of the plaintiffs to be litigated in the State court, the former claim being $750 and the latter $195? In view of the facts, that the suit is in form one brought by the plaintiffs against the defendant, and includes the plaintiffs' claim, by the voluntary act of the plaintiffs, and is made to include the defendant's claim by the operation of the statute of New York; and that thus there is but one suit, though there are two controversies in it, and that the whole suit is to be removed, and that either party may remove it,and that the counter-claim necessarily "must tend in some way to diminish or defeat the plaintiffs' recovery," it follows that the whole suit is removed, including all the issues, by the complaint, the answer and counter-claim and the reply.

The case of West v. Aurora City, 6 Wall. 139, is not in point. The facts there were not at all like the facts in this case, and it arose under a different statute.

In McLean v. St. Paul, etc., Railway Co., 16 Blatchf. C. C. 309, a construction was given to section 2 of the act of 1875, to the effect that a suit where the requisite citizenship for removal did not exist when the suit was brought, might become removable by the occurrence of the requisite citizenship during the pendency of the suit. Under that ruling it must be held that it is not necessary that the requisite amount in dispute should appear to have existed when the suit was brought. After proceedings for removal are completed, a party cannot be deprived of his right, by any action of the State court or of the other party, in reducing the amount appearing to be in dispute. Kanouse v. Martin, 15 How. 198. But there is nothing to prevent a State court from allowing an insufficient amount in dispute to become an adequate amount, under the act of 1875, or prevent such insufficient amount from becoming an adequate amount under that act by the operation of the statute of New York and the lawful acts of the parties to the suit thereunder.

The motion to remand the suit and for other relief is denied.

REMOVAL OF CRIMINAL CAUSEON GROUND OF ALIENAGE.

U.S. CIRCUIT COURT, NEW HAMPSHIRE, OCTOBER 8, 1880.

STATE OF NEW HAMPSHIRE V. GRAND TRUNK RAIL

WAY.

The doctrine that the Federal courts will in the construction of the statute law of a State follow the decision of the highest State courts, reaffirmed.

The act of Congress of March 3, 1875, relating to the removal of cases from State to Federal courts, does not provide for the removal of a criminal action on the ground of alienage.

by the defendant against the plaintiffs to recover the M

$750 is an action, and a civil action, the defendant being permitted to become actor in the given case. The statutes of New York now use the word “action," and discard all other terms. The proceeding by the defendant against the plaintiffs being a civil action, in a suit of a civil nature, and the matter in dispute in it exceeding, exclusive of costs, the sum or value of $500, it is brought in the State court, under the authority of the statute of New York, in the form in which it is brought, although the defendant is turned into a

[OTION to remand to State court. The opinion states the case.

Mr. Ladd, for plaintiff.

Ray, Drew & Jordan, for defendant.

CLARK, D. J. At the Supreme Court of the State of New Hampshire, holden at Lancaster, in the county of Coos, on the fourth Tuesday of April, 1877, the Grand Trunk Railway, a corporation established under the laws of Canada, was indicted by the grand jury for that county for carelessly and negligently injuring one

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 the 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; Thatcher v. Powell, 6 Wheat. 119; McDowell v. Peyton, 10 id. 454; Shelby v. Guy, 11 id. 361; McCheny v. Silliman, 3 Pet. 270; Harpending v. Dutch Church, 16 id. 455; Smith v. Kernocher, 7 How. 198; Nesmith v. Sheldon, id. 812; Van Ransaler v. Kearney, 11 id. 297; Webster v. Cooper, 14 id. 488, 504; Leffingwell 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

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. In 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.

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.

IN

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 statement as to the proposed voyago. 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 known legal results. Wheu

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