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Argument for Plaintiff in Error.
II. The United States Circuit Court for the District of Idaho had no jurisdiction to enter up judgment herein against the plaintiff in error and in favor of the defendant in error.
Under the language of this act, the Federal courts created by the act became the successors of the territorial courts only in regard to the class of cases of which the Federal courts might have had jurisdiction had such courts been in existence at the time of the commencement of the action. Johnson v. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209.
Two things are necessary to give a court of the United States jurisdiction over any particular action: First, the action itself must be within the jurisdiction of the court; and second, the jurisdictional facts must affirmatively appear in the record. It is not enough for the court to see from the evidence, or know as a matter of fact, that it has jurisdiction; but such jurisdiction must actually appear by suitable allegations in the pleadings or in the petition for removal, and unless such jurisdiction affirmatively appears, then it is the duty of the court to dismiss the action, although such jurisdiction may actually exist. Insurance Co. v. Pechner, 95 U. S. 183; Robertson v. Cease, 97 U. S. 646; Swan v. Manchester, Coldwater &c. Railway, 111 U. S. 379; Parker v. Ormsby, 141 U. S. 81, 83; Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Gold Washing Co. v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105.
The effect of § 18 of the Idaho enabling act was to confer jurisdiction on the state courts of all civil actions in which the United States was not a party, unless a proper written request showing the jurisdiction of the United States court was filed in the proper court, as required by the act. On familiar principles, such request for transfer, in order to oust the state court of jurisdiction and confer jurisdiction upon the United States court, must necessarily show that the United States court might have had jurisdiction of the action had such court existed at the time of the commencement of such case, as well as jurisdiction at the time when the action was
Argument for Plaintiff in Error.
undertaken to be transferred. Johnson v. Bunker Hill Mining Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209.
Such request cannot be amended in the United States court; and a failure to properly allege therein the necessary jurisdictional facts is fatal to the jurisdiction of this court and of the court below. Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Stevens v. Nichols, 130 U. S. 230; Gold Washing Co. v. Keyes, 96 U. S. 199.
The two grounds of jurisdiction suggested by the petition for removal, namely, diverse citizenship and the corporate character of the Northern Pacific Railroad Company, are the only grounds of jurisdiction anywhere hinted at throughout the entire record.
Upon these grounds alone was the state court sought to be deprived of the jurisdiction conferred upon it over this action by the enabling act. Unless the jurisdictional facts above mentioned actually existed and are sufficiently stated, then no transfer took place, and the court below is without jurisdiction.
III. The court below had no jurisdiction by reason of the Federal character of the Northern Pacific Company.
Under the enabling act no action could be transferred unless "pending" at the time of the transfer. Glaspell v. Northern Pacific Railroad, 144 U. S. 211. This action was not pending against the Northern Pacific Company at the time of the admission of Idaho into the Union.
The Federal charter to a corporation can only give rise to a Federal question when the corporation is an actual party to the suit, actively present, and actively engaged in the litigation. Pacific Removal Cases, 115 U. S. 1; Metcalf v. Watertown, 128 U. S. 586. It is only when an act of Congress is directly brought into consideration in an action that the cause can be said to arise under such act. Gold Washing Company v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105; Shreveport v. Coe, 129 U. S. 36, 41.
Jurisdiction will not be entertained in an action, even where the petition for removal states a clear Federal question, if the
Argument for Plaintiff in Error.
party at the time of filing such petition enters a special appearance for the purpose of setting aside the service of summons made in the state court. Germania Ins. Co. v. Wisconsin, 119 U. S. 473.
The only Federal question alleged in the petition for removal, or shown by the pleadings, was that suggested by the incorporation of the Northern Pacific Company; and when it appeared that that company never appeared, and that no service was made on it, that question disappeared.
IV. Diverse citizenship furnishes no ground for jurisdiction. A corporation is a citizen, resident, and inhabitant of the State or Territory which creates it, and cannot become such in another State or Territory, by doing business in it. Shaw v. Quincy Mining Co., 145 U. S. 444; Southern Pacific Co. v. Denton, 146 U. S. 202.
At the time of the commencement of this action, the Washington and Idaho Railroad Company was therefore a resident, citizen, and inhabitant of the Territory of Washington, and the Coeur d'Alene Railway and Navigation Company was a resident, citizen, and inhabitant of the Territory of Montana ; and no suit either by or against either of such corporations could have been removed, transferred, or commenced in a Federal court on the ground of diverse citizenship. New Orleans v. Winter, 1 Wheaton, 91; Railway Company v. Swan, 111 U. S. 381; Johnson v. Bunker Hill &c. Co., 46 Fed. Rep. 417; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673; Strasburger v. Beecher, 44 Fed. Rep. 209.
V. The record in this action nowhere shows jurisdiction in the Circuit Court for the District of Idaho.
Jurisdiction must affirmatively appear in the record. Parker v. Ormsby, 141 U. S. 81, 83; Gold Washing Co. v. Keyes, 96 U. S. 199. Such jurisdiction must not only affirmatively appear to exist at the time of the admission of Idaho into the Union as a State, but also must be shown affirmatively to have existed at the time the action was commenced. This is plainly required by the language of the act. Strasburger v. Beecher, 44 Fed. Rep. 209; Back v. Sierra Nevada Mining Co., 46 Fed. Rep. 673.
Opinion of the Court.
Here no Federal question is alleged with sufficient accuracy in the petition or elsewhere in the record, to have authorized the court below to have entertained jurisdiction of this action. Gold Washing Company v. Keyes, 96 U. S. 199; Gibbs v. Crandall, 120 U. S. 105, 109; Theurkauf v. Ireland, 27 Fed. Rep. 769; Austin v. Gagan, 39 Fed. Rep. 626.
Mr. A. B. Browne, (with whom was Mr. A. T. Britton on the brief,) for defendants in error.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
We are to answer the questions that arise on this record in the light of the findings of fact made by the Circuit Court to which no exceptions were taken.
Those questions are two- first, had the Circuit Court jurisdiction to entertain the action? and, if so, second, did the title set up by the plaintiff company show a right of possession of the land in dispute as against the title of the defendants?
It is claimed by the plaintiff in error that as, at the time when the action was originally brought in the District Court of the Territory of Idaho, the Washington and Idaho Railroad Company, the plaintiff, was a corporation organized under the laws of Washington Territory, and the Cœur d'Alene Railway and Navigation Company, defendant, was a corporation organized under the laws of Montana Territory, and as the Northern Pacific Railroad Company was not really a party to the action, there was no right to remove the cause from the state court, whose jurisdiction over the case had attached under the terms of the act of July 3, 1890, c. 356, 26 Stat. 215, providing for the admission of Idaho into the Union. The argument is based on the language of the eighteenth section of that act, wherein it is provided that " in respect to all cases, proceedings, and matters now pending in the Supreme or District Courts of the said Territory at the time of the admission into the Union of the State of Idaho, and arising within the limits of such State, whereof the Circuit or District Courts by this act
Opinion of the Court.
established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases, the said Circuit and District Courts, respectively, shall be the successors of said Supreme and District Courts of said Territory; and in respect to all other cases, proceedings, and matters pending in the Supreme or District Courts of said Territory at the time of the admission of such Territory into the Union, arising within the limits of said State, the courts established by such State shall, respectively, be the successors of said Supreme and District territorial Courts; and all the files, records, indictments, and proceedings relating to any such cases shall be transferred to such Circuit, District, and State Courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause, or proceeding now pending, or that prior to the admission of the State shall be pending, in any territorial court in said Territory, shall abate by the admission of such State into the Union, but the same shall be transferred and proceeded with in the proper United States Circuit, District, or State Court, as the case may be: Provided, however, That in all civil actions, causes, and proceedings in which the United States is not a party transfers shall not be made to the Circuit and District Courts of the United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper state courts."
This language is interpreted by the plaintiff in error to mean that no case can be transferred to the Federal courts if the parties to it could not have gone into such courts at the time the action was brought, if such courts had then actually existed; and the contention is that, as at the time of the commencement of this action, the Washington and Idaho Railroad Company was a resident, citizen, and inhabitant of the Territory of Washington, and the Coeur d'Alene Railway and Navigation Company was a resident, citizen, and inhabitant of the Territory of Montana, no suit either by or against either of such corporations could have been removed, transferred, or