Magee v. Union Pac. R.

In Mayor v. Cooper, 6 Wall. [73 U. S.] 247, it was said by the supreme court, that "two things are necessary to create jurisdiction, whether original or appellate. The constitution must have given to the court the capacity to take it, and an act of congress must have supplied it.” The defendant being a United States corporation, the constitution has given this court, the capacity to take jurisdiction of actions to which it is a party. Osborne v. United States Bank, 9 Wheat. [22 U. S.] 738. But it rests with congress to supply it and prescribe the conditions of its exercise. To entitle the defendant to remove a suit, congress has said, in the law now in question, that it shall not only be a corporation organized under a law of the United States, but shall state in its petition that it has a defense arising under or by virtue of a law of the United States. Unless it has such a defense, this case is not properly here. It was said in Cohens v. Virginia, 6 Wheat. [19 U. S.] 264. that a case in law or equity may truly be said to arise under the constitution, or a law of the United States, when its correct decision depends on the construction of either. Poliowing this language, it may be truly said that a defense arises under a law of the United States, when a correct decision upon the merits of the defense depends upon the construction of that law. But it appears in this case, by the admission of counsel, as well as by the record that the defense involves the construction of no law of the United States.' A correct decision upon its merits depends entirely upon common law principles, wholly independent of any statute law.

The jurisdiction of this court depends upon the character of the defense, as well as upon the character of the party, and as the defend-’ *391ant lias no defense arising under or by virtue of a law of the United States, there is a failure of jurisdiction, and the cause must be remanded to the state court. It was suggested that there was a doubt as to this being the proper stage in the ease to determine this question upon motion. There are no disputed facts, and it clearly appears from the admissions of counsel and the record — the answer tiled — that this corporation. has ho defense, as we construe the law, arising under a law of the United States. As the question can never be presented more satisfactorily than now, it would only cause unnecessary delay to postpone the decision of the matter- until the trial.

The motion is granted, and an order will be entered, remanding the cause to the court whence it was removed.