the special cases of removal of "separable controversies," and removal on account of "prejudice or local influence."

§ 90. Enumeration of removable causes. Construing sections 24 and 28 of the Judicial Code together, it appears that there are seven classes of suits that may be removed under section 28 as follows:

(1) Cases Involving Federal Questions. Cases arising under the Constitution, laws and treaties of the United States where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $3,000. Defendant may remove, whether resident or non-resident of the state.

(2) Suits by United States. Controversies in which the United States are plaintiffs or petitioners. The amount involved is immaterial. Non-resident defendant may remove.

(3) Cases of Diverse Citizenship. Controversies between citizens of different states in which more than $3,000 is involved. Defendant, if a non-resident, may

remove.

(4) Cases of Conflicting Land Grants. Controversies between citizens of the same state claiming lands under grants of different states, without reference to amount involved, are within the jurisdiction of the district courts under section 24, and hence, under section 28, appear to be removable by non-resident defendants, but this case is specially provided for in section 30 of the Code which provides for removal by either plaintiffs or defendants, where the matter in dispute exceeds the sum or value of $3,000. This is the only case which may be removed by the plaintiff. These cases practically never arise.

(5) Suits between Citizens and Aliens. Controversies between citizens of a state and foreign states, citizens or subjects, where more than $3,000 is involved. Non-resident defendant may remove.

(6) Separable Controversies. The third clause of the section is as follows: "And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district." The language of this clause is ambiguous in several particulars and has given rise to much litigation.

The statute contemplates a condition which may arise especially in chancery suits, that in the suit there may be two or more causes of action or controversies each of which might have been made the subject of an independent suit. These are called "separable controversies."

What Constitutes a Separable Controversy. It is frequently difficult to determine what constitutes a separable controversy within the meaning of this clause, and numerous cases involving this question have arisen. In general, to constitute a separable controversy, there must be a separate and distinct cause of action upon which a separate and distinct suit could have been brought and complete relief afforded as to such cause of action, and in which all the necessary parties on one side are citizens of different states from all those on the other; that is, the case must be capable of separation into parts, so that in one of these parts a controversy will be presented with citizens of one or more states on one side, and citizens of other states on the other, which can be fully determined without the presence of any of the other parties to the suit, as it has been begun. It seems, however, that such separate controversy must be a substantial one and not merely incidental to the main purpose of the suit as brought."

7-18 Enc. Pl. & Pr. 209-232; Blake v. McKim, 103 U. S. 336;

Greer v. Mathieson Alkali Works, 190 U. S. 428, 432.

8

Removal Carries Entire Suit. The removal of the separable controversy carries the entire suit into the district court, even though the entire suit could not have originally been brought therein, a doctrine which would seem to present some constitutional difficulties if the entire suit were not within the federal judicial power as defined by the Constitution.10

(7) Cases of Prejudice or Local Influence. Under the fourth clause of the section, where a suit is brought in a state court by a citizen of that state against a defendant not a citizen or resident of that state, the defendant may remove if he can make it appear to the district court that owing to prejudice or local influence he cannot obtain justice in the state court, or in any other state court to which the cause might be removed under state laws. Many cases have arisen under this clause. It has been held by the Supreme Court that the matter in dispute must exceed the sum or value of $3,000 though the statute is not clear on that point.11

Though conveniently considered separately, it has been held that this clause does not in fact furnish a separate and independent ground or case of removal, but merely describes a special case comprised in the preceding clauses.12

However, the procedure for removal is different in this case from that provided for removal in other cases, the application being made in the first instance to the federal court and not to the state court.

(8) Cases Against Common Carriers. Under the Act

8-18 Enc. Pl. & Pr. 234; Barney v. Latham, 103 U. S. 205.

9-18 Enc. Pl. & Pr. 232; Barney v. Latham, 103 U. S. 205; Connell v. Smiley, 156 U. S. 335.

10-See discussion in Whelan v. New York, etc., R. Co., 35 Fed. 849. See, also, 18 Enc. Pl. & Pr. 213.

11-In re Pennsylvania Co., 137

U. S. 451. Under the Judicial Code the amount would be $3,000, but in the case cited the amount was $2,000 under the former law.

See, generally, as to this ground of removal, Hanrick v. Hanrick, 153 U. S. 192.

12-Cochran v. Montgomery County, 199 U. S. 260.

of January 20, 1914, amending section 28 of the Judicial Code suits against common carriers under the Interstate Commerce Act and its amendments where the amount in controversy exceeds $3,000.

§ 91. Who may remove. From the foregoing it appears that only a defendant can remove a suit except in the case of conflicting land grants, in which either plaintiff or defendant may remove; and, further that only a non-resident defendant can remove except in cases involving federal questions and conflicting land grants.

§ 92. Amount in controversy. In removal cases the matter in dispute, exclusive of interest and costs, must exceed the sum or value of $3,000 in all cases except where the United States are plaintiffs or petitioners.

§ 93. Waiver or forfeiture of right of removal. A party entitled to remove a cause may waive his right to removal in that particular suit, as, for example, by not asserting it. But it seems that the general right to remove causes secured by the Constitution and statutes of the United States cannot be waived by the party nor taken away by state authority.

This question has frequently arisen in connection with suits brought in state courts against foreign corporations doing business in the state. Statutes are not uncommon providing that an attempt by the defendant corporation to remove such a suit may be penalized, as by a revocation of its license to do business in the state. There has been some uncertainty in the decisions on the subject, but it now seems to be settled that in cases in which the state has power to prevent a foreign corporation altogether from doing business in the state, it may revoke its license for such cause under a statute so providing. Having absolute power to exclude the corporation from its borders, the state may admit it upon terms, and upon a

disregard of such terms may revoke its license at pleasure. Where the state has power to exclude the corporation, neither the means by nor the motives with which it effects such exclusion are the subjects of judicial inquiry.13

But an agreement exacted of a foreign corporation as a condition of admission into the state that it will not remove causes into the federal courts is void. The right to remove being secured by federal authority cannot be taken away by the states. And notwithstanding such agreement, the corporation may remove a cause, in a proper case, to the federal court to be disposed of thereby.14 But while the state statute or the agreement providing for the waiver of the right to remove is void and cannot affect the jurisdiction of the federal court of the particular cause removed in violation thereof, the state may nevertheless revoke the license of the corporation for breach of such waiver.15

Where the foreign corporation has a right under the federal Constitution to do business in the state, as in the case of a corporation engaged in interstate commerce, its right to remove causes to the federal courts can in no way be restricted by the states. The states have no power to exclude such corporations from their borders and cannot revoke their licenses or penalize them in any manner for the exercise of their constitutional right of removal.16

§ 94. Procedure for removal. The procedure for removal is prescribed by the statute. In general it is quite simple. The statute is as follows:

13-Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246 (reviewing the earlier cases).

14-Home Ins. Co. v. Morse, 20 Wall. 445.

15-Doyle v. Continental Ins. Co., 94 U. S. 535. See, also, Cable v.

United States Ins. Co., 191 U. S. 288.

16-Harrison v. St. Louis, etc., R. Co., 232 U. S. 318; Donald v. Philadelphia, etc., R. Co. (1916), 36 S. Ct. 563. See, also, Herndon v. Chicago, etc., R. Co., 218 U. S. 135.