It has been said that a suit cannot be removed, from a State court to a Federal court, simply because, in its progress, a construction of the Constitution or of a law of the United States may be necessary, unless it, in part at least, arises out of a controversy in regard to the operation and effect of some provision in such Constitution or law upon the facts involved.2

The mere fact that, in the progress of the trial of a case, it may become necessary to construe the Constitution or laws of the United States, does not give the Federal courts jurisdiction thereof; but the decision must depend on such construction.2a

In order to remove a cause, on the ground that it arises under a statute of the United States, the record must affirmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision. Where the contest is about the facts only, there can be no removal.3 A case removed to a Federal court, on the ground that the suit arose under the Constitution or laws of the United States, will be remanded where

arises from the fact that plaintiff acquired title from the United States to the funds loaned defendant, and to recover which suit is brought. Houston & T. C. R. Co. v. State (Texas), 41 S. W. 157. The State of South Carolina filed a bill in one of its own courts, alleging that defendant corporation was chartered by the State to build and operate a railroad between the interior and the seaboard; that since it was built the Central Company, a Georgia corporation, and a competitor of defendant, had purchased enough of the stock and bonds of defendant to give it control of the corporation, and had diverted the business of defendant, and crushed competition; that the Central Company had no power to purchase stock in defend. ant corporation, and that the latter was disabled to fulfill the purposes for which it was chartered. It prayed that such holdings by the Central Company be declared ultra vires, and that defendant's charter

be forfeited. The petition for removal alleged that the Central Company was an instrument of interstate commerce, and that for the purposes of such commerce, and under the interstate commerce clause of the Constitution and the laws passed in pursuance thereof, it had power to purchase defendant's stock, and control its operation. Held, that the determination of the controversy thus developed involved the construction of the Constitution and laws of the United States and so presented a Federal question. South Carolina v. Port Royal & A. R. Co., 56 Fed. 333.

2 Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; 38 St. at L. 583, Comp. St. § 4125b Bankers Trust Co. v. Tex. & Pac. Ry., 241 U. S. 295; Wise v. Nixon, 78 Fed. 203.

2a Wise v. Nixon, 78 Fed. 203. 3 Austin v. Gagan, 39 Fed. 626, 5 L.R.A. 476.

the record fails to show: that there will arise some contested point of law depending upon the Constitution or laws of the United States, what the question is and how it will arise. It has been said: that a cause is not removable simply because an act of Congress must be construed or applied; but that there must be a dispute as to the construction of the act, and facts to show the dispute must appear in the record.5

A suit to determine the validity of the action of State authorities with reference to a tax imposed by the United States involves a Federal question. It has been held that a cause involving the question whether an express company or its customer must furnish the stamp required by the war revenue act of 1898, to be affixed to a receipt given by the company is one arising under a law of the United States; 7 but that suit between two companies to determine which of them is liable for the income tax upon dividends does not, although the collector is joined as a defendant, when no controversy is raised effecting the rights of the United States. It has been held that Federal questions are raised in suits brought by a State attorney general, to test the validity of a consolidation of railroad companies, which affect their rights under acts of Congress. It has been said that where the plaintiff pleads a breach of the rules and regulations made by a Department of the United States, the case does not arise under a law of the United States, unless a recovery of damages for a disregard of such regulations is expressly authorized by statute.10

Suits against directors of national banks for damages sustained by individuals in consequence of violation of the National Banking Laws.11 Suits for malicious prosecution or false imprisonment upon a charge of the violation of a law of the United States, 12 or where the illegality depends upon a right granted

4 McFadden v. Robinson, 22 Fed. 10, 10 Sawyer, 398.

5 Fitzgerald v. Missouri Pac. R. Co., 45 Fed. 812.

6 Dinsmore v. Southern Exp. Co., 92 Fed. 714.

7 Crawford v. Hubbell, 89 Fed. 1. See, however, Attorney General v. American Express Co. (Michigan), 77 N. W. 317.

8 Rensselaer & S. R. Co. v. Dela

ware & Hudson Co., C. C. A., 257 Fed. 555.

9 Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482.

10 Beck v. Johnson, 169 Fed. 154, 163.

11 Chesbrough v. Woodworth, 244 U. S. 72. See infra § 28.

12 Ma-ka-ta-wah-qua-twa v. Rebok, 111 Fed. 12.

13

by a statute of the United States; 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.3 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.

31

eral, and the federal jurisdiction exceptional, and therefore to be made specially to appear. But, when the federal jurisdiction originates 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.