by a statute of the United States; 13 an action for damages for preventing plaintiff from voting at a Congressional election; 14 but not under ordinary circumstances a controversy as to the right to the custody of an Indian child: 15 arise under the laws of the United States.

The Federal question in the case must be substantial, and not merely colorable.16 "When a proposition has once been decided by the Supreme Court of the United States; it can no longer be said that in it there still remains a Federal question." 17 The right of removal of a suit involving a Federal question, is not affected by the fact that the Supreme Court has laid down, in previous decisions on different facts, general principles, which will probably control the decision. 18 It was said: that the decisions of the Supreme Court, in cases from the Circuit Courts, and those on writs of error to State courts were equally instructive in determining when there is a Federal question, such as to support the jurisdiction of the Circuit Court, originally or upon removal.19 Where the complaint shows upon its face, that the

13 Peters v. Malin, 111 Fed. 244. 14 Knight v. Shelton, 134 Fed. 423. 15 In re Celestine, 114 Fed. 551. 16 Starin v. New York, 115 U. S. 248, 257, 29 L. ed. 388, 390; Southern Pac. R. Co. v. California, 118 U. S. 109, 112, 30 L. ed. 103, 104; New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. ed. 315; McCain v. Des Moines, 174 U. S. 168, 43 L. ed. 936; W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239, 44 L. ed. 1052; Swafford v. Templeton, 185 U. S. 487, 494, 46 L. ed. 1005, 1008; Cummings v. Chicago, 188 U. S. 410, 47 L. ed. 525; Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 192 U. S. 371, 48 L. ed. 484; Underground R. R. Co. v. New York, 193 U. S. 416, 48 L. ed. 733; Barney v. New York, 193 U. S. 430, 48 L. ed. 737; Newburyport Water Co. v. Newburyport, 193 U. S. 561, 48 L. ed. 795; Sloan v. U. S., 193 U. S.

614, 48 L. ed. 814; Farrell V. O'Brien, 199 U. S. 89, 50 L. ed. 101; Harris v. Rosenberger, C. C. A., 145 Fed. 449; Blue Bird Min. Co. v. Largey, 49 Fed. 289, 291; St. Louis, I. M. & S. Ry. Co. v. Davis, 132 Fed. 629; Montana Catholic Missions v. Missoula County, 200 U. S. 118, 50 L. ed. 398.

17 Brewer, J., in Kansas v. Bradley, 26 Fed. 289, 290. See Western Union Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239, 44 L. ed. 1052, reversed 90 Fed. 379, 33 C. C. A. 113; Kentucky v. Louisville Bridge Co., 42 Fed. 241; People of State of California v. Brown's Valley Irr. Dist., 119 Fed. 535; Arkansas v. Choctaw & M. R. Co., 134 Fed. 106; Myrtle v. Nevada, C. & O. Ry. Co., 137 Fed. 193; Harris v. Rosenberger, C. C. A., 145 Fed. 449.

18 Mallon v. Hyde, 76 Fed. 388. 19 Nashville, C: & St. L. Ry. Co. v. Taylor, 86 Fed. 168.

relief sought would be inconsistent with a provision of the Federal Constitution, such as the grant of power to regulate commerce between the States, or the Fourteenth Amendment; this only demonstrates that the suit cannot be maintained at all, not that the cause of action arises under the Constitution or laws of the United States.20 Where the plaintiff sought to recover damages because the defendant, as Chief Justice of the Superior Court of the State, had remitted a case to an inferior court; it was held, that there was nothing to show a ground of Federal jurisdiction.21

A suit does not arise under the Constitution or law of the United States, unless the Federal question appears clearly, not merely by inference, 22 upon the face of the plaintiff's initial pleading in his statement of his own case,23 and in a necessary allegation in such pleading.24 In a suit to remove a cloud from

20 Arkansas v. Kansas & T. Coal Co., 183 U. S. 185; South Carolina v. Virginian-Carolina Chemical Co., 117 Fed. 727, 731. See Washington v. Island Lime Co., 117 Fed. 777. 21 Kinney v. Mitchell, 138 Fed. 270.

22 Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157; W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239, 44 L. ed. 1052.

23 Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85; Tennessee v. Union and Planters' Bank, 152 U. S. 454, 38 L. ed. 511; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 39 L. ed. 231; East Lake Land Co. v. Brown, 155 U. S. 488, 39 L. ed. 233; Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76; Galveston, H. & S. A. Ry. Co. v. State of Texas, 170 U. S. 226, 42 L. ed. 1017; Third St. & S. Ry. Co v. Lewis, 173 U. S. 457, 43 L. ed. 766; Minnesota v. Northern Securities Co., 194 U. S. 48, 48 L. ed. 870; reversing 123 Fed. 692; Iowa v. Chicago, M. & St. P.

R. Co., 33 Fed. 391; appeals dismissed, Chicago, M. & St. P. Ry. Co. v. Iowa, 145 U. S. 632, 36 L. ed. 857; Haggin v. Lewis, 66 Fed. 199; Caples v. Texas & P. R. Co., 67 Fed. 9; Holland v. Texas & P. R. Co., 67 Fed. 9; Cruz v. Texas & P. R. Co., 67 Fed. 9; Wichita Nat. Bank v. Smith, 72 Fed. 568, 19 C. C. A. 42, 36 U. S. App. 530; Florida v. Charlotte Harbor Phosphate Co., 74 Fed. 578, 20 C. C. A. 538, 41 U. S. App. 405; Dewey Min. Co. v. Miller, 96 Fed. 1; South Carolina v. Virginia-Carolina Chemical Co., 117 Fed. 727; Wichita v. Missouri & K. Telephone Co., 122 Fed. 100; Darton v. Sperry (Connecticut), 41 Atl. 1052, 71 Conn. 339; Mills v. Central R. Co. of New Jersey (New Jersey), 7 N. J. Law J. 230; State v. Port Royal & A. Ry. Co. (South Carolina), 45 S. C. 413, 23 S. E. 363; Texas & P. Ry. Co. v. Caples (Texas), 36 S. W. 516.

24 Wise v. Nixon, 78 Fed. 203; California Oil & Gas Co. of Arizona v. Miller, 96 Fed. 12; Henuy v. La Compagnie Generale Transatlan

the plaintiff's title, the facts which show his title and the existence and invalidity of the paper sought to be cancelled are essential parts of the plaintiff's equity which must be alleged in the bill and if they show that a Federal question is involved, the Federal Court has jurisdiction.25 The appearance of a Federal question in the defendant's answer, 26 or petition for removal,27 or even, it has been held, in his demurrer,28 or in the plaintiff's pleading in reply or rebuttal,29 or in a bill of repleader by the plaintiff,30 is insufficient. A Federal question, first raised by the defendant, must be tried by the State court, subject to review by the Supreme Court of the United States upon writ of error.31 To give a court of the United States jurisdiction of a cause, on the ground that it presents a Federal question, such question

tique, etc., 96 Fed. 497; Filhiol v.
Torney, 119 Fed. 974; McLane v.
Leicht (Iowa), 69 Ia. 401, 29 N.
W. 327.

25 Hopkins v. Walker, 244 U. S. 486; Lancaster v. Kathleen Oil Co., 241 U. S. 551.

26 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312; Lincoln v. Lincoln St. Ry. Co., 77 Fed. 658; Broadway Ins. Co. v. Chicago G. W. Ry. Co., 101 Fed. 507; Ralya Market Co v. Armour & Co., 102 Fed. 530; Mayo v. Dockery, 108 Fed. 897; Mitchell Engineering & Machinery Co. v. Worthington, 140 Fed. 947; Cella V. Brown, 144 Fed. 742. It has been held that this rule does not apply where the cause of action arose in a district ceded by a State to the United States.

The rule is applicable rather to provisions of the Constitution and laws in effect throughout the United States than to laws depending for their effect upon the territorial jurisdiction, as in the case of reservations and sites purchased for federal purposes and uses. In the first class, the state's jurisdiction is gen

eral, and the federal jurisdiction exceptional, and therefore to be made specially to appear. But, when the federal jurisdiction origi nates because of the territory within which the cause of action arose, its jurisdiction is general, and that of the state so far as it exists-exceptional. The reason upon which the rule is based, then, requires the state's jurisdiction, rather than that of the federal courts, to be specially shown." Steele v. Halligan, 229 Fed. 1110, 1119.

27 Ibid. Bronson v. Board of Sup'rs of Emmet and Kossuth Counties (Iowa), 237 Fed. 212.

28 Indiana v. Alleghany Oil Co., 85 Fed. 870; Shields v. Boardman, 98 Fed. 455.

29 Houston & T. C. R. Co. v. State (Texas), 41 S. W. 157; Houston & T. C. R. Co. v. State of Texas, 177 U. S. 66, 44 L. ed. 673. But see, Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080.

30 Cella v. Brown, 144 Fed. 742. 31 Tennessee v. Union & Planters' Bank, 152 U. S. 451, 462, 38 L. ed. 511, 514.

must appear from plaintiff's statement of his own cause of action, and his right to the relief sought must depend directly upon the construction of some provision of the Constitution or laws of the United States.32 Where the controversy might have arisen both under the laws in the United States and under the common law or a State statute, the complaint must clearly show that it arises under the former 33 Jurisdiction cannot be sustained upon allegations that defendant does or may assert some right under such Constitution or laws as a defense.34 An averment by the plaintiff, that the defendant will set up a defense based upon a Federal statute or the Constitution of the United States,35 or

based upon a State statute repugnant to the Federal Constitution,36 will not bring the case within the Federal jurisdiction; even though the plaintiff sues to quiet his own title, which does not depend upon a Federal statute.37 Where a complaint in the State court alleged that complainants claimed under a designated State statute, not set out in full in the complaint, and that defendant's claim arose under a previous statute, also designated, which was alleged to be contrary to the State Constitution; the Federal court, upon defendant's petition for removal, on the ground that the latter statute was contrary to the United States Constitution as impairing the obligation of their contract. under the former statute, took judicial notice of the statutes in determining its jurisdiction.38 It has been said: that the rule, that a cause is not removable, as one arising under the Constitution or laws of the United States, unless such fact appears from the plaintiff's pleading, applies only to cases in which the Federal question is one inherent in the controversy itself; so that if raised by the defendant, and determined against him by the State court, he may remove it to the Supreme Court for review by appeal or writ of error; that such rule cannot be extended as to permit a plaintiff to prevent the removal of a suit against a receiver of a Federal court by omitting to state, in his pleadings, by what court defendant was appointed receiver; and that such an omission, when relied upon to prevent the removal of the cause, may fairly be considered as a fraud upon the jurisdiction of the Federal court, whether so intended or not.39

v. Gold Hill Min. Co., C. C. A., 111 Fed. 817. But see Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; Cox v. Gilmer, 88 Fed. 343; Yazoo & M. V. R. Co. v. Adams, 81 Miss. 90, 32 So. 937.

36 Devine v. Los Angeles, 202 U. S. 313, 50 L. ed. 1046; Cox v. Gilmer, 88 Fed. 343. But see South Carolina v. Coosaw Min. Co., 45 Fed. 804; Green v. Oemler, 151 Fed. 936.

37 Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 188 U. S. 632, 47 L. ed.

626; affirming, C. C. A., 93 Fed. 274; Devine v. Los Angeles, 202 U. S. 313, 50 L. ed. 1046; California Oil & Gas Co. of Arizona v. Miller, 96 Fed. 12.

38 South Carolina v. Coosaw Min. Co., 45 Fed. 804.

39 Winters v. Drake, 102 Fed. 545. See Washington v. Island Lime Co., 117 Fed. 777, 778; where it was held, that the pleading did not show fraud in concealing the real controversy by an insufficient statement of the facts constituting plaintiff's cause of action. See also infra, § 27.