tion whether it arises under the laws of the United States; and that if the case made by the complaint arises under an act of Congress, the right of removal by the defendant is not lost by insufficient denials in the answer,53 or by the interposition of a good defense.54 It has been held: that a Federal court loses jurisdiction of a suit originally brought there, and that the same will be dismissed, upon the defendant's filing a disclaimer of any interest in the matter concerning which the plaintiff claims title under the laws of the United States, and denying that it has made any claim to the same.55

In a suit in a Federal court, raising the question whether the State was attempting to impair the obligation of a contract, a decision that this question was res adjudicata as against the State does not oust the Federal jurisdiction on the theory that it makes the case turn on a question not Federal.56

Where the requisite difference of citizenship did not exist, it was held that the Federal Court could not take jurisdiction of a counterclaim not affecting matters set forth in the bill which might have been the subject of an independent suit and the determination of which did not involve the decision of a federal question.57

§ 25. Suits arising under the Constitution of the United States. A suit arises under the Constitution of the United States when the plaintiff's cause of action depends upon the violation of a right under the same by an individual who does not act under color of any statutory authority; or where the

53 Miller v. Tobin, 18 Fed. 609, 9 Sawyer, 401.

54 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312; Benedict v. City of New York, C. C. A., 247 Fed. 758.

55 Robinson v. Anderson, 121 U. S. 522, 524, 30 L. ed. 1021; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 287, 46 L. ed. 910, 913; Boston & M. Consol. C. & S. Min. Co. v. Montana Ore P. Co., 188 U. S. 632, 47 L. ed. 626; Crystal Springs Land & Water Co. v. Los Angeles, 82 Fed. 114.

56 Bank of Kentucky v. Stone, 88 Fed. 383.

57 Cleveland Engineering Co. v. Galion D. M. Truck Co., 243 Fed. 405.

$ 25. 1 An action to recover damages for preventing plaintiff from exercising the right to vote for a member of Congress is one arising under the Constitution of the United States. Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84; Knight v. Shelton, 134 Fed. 423; T. B. Harms & Fran eis, Day & Hunter v. Stern, C. C. A., 229 Fed. 42; Swindell v. Youngs

cause of action depends upon the unconstitutionality of an act of Congress; 2 or the repugnancy of a State statute to the Federal Constitution; 3 the repugnancy to the Federal Constitution. of a municipal ordinance, or of a resolution of a city council which has the effect of an ordinance of a State municipality,5 when either was passed in accordance with the legal forms and under color of statutory authority, even though the same is not authorized by the statutes of the State,6a or, it has been held, where its validity depends upon a statute, which the defendant contends in good faith to be in violation of the Constitution, and there is ground for a reasonable doubt as to the soundness of the contention; 7 or where complaint shows that the plaintiff's claim would be defeated by a construction of the Federal Constitution, as to which there is room for a reasonable doubt. The pleadings need not state what particular clause of the Constitution is in question. It has been said: that it is not essential to the jurisdictown Sheet & Tube Co., C. C. A., 230

Fed. 438.

Co. v. City of Portland, 210 Fed.
667; Ashland Electric Power &
Light Co. v. City of Ashland, 217
Fed. 158.

7 Railroad Co. v. Mississippi, 102 U. S. 135, 141, 26 L. ed. 96, 98; Ames v. Kansas, 111 U. S. 449, 23 L. ed. 482; Southern Pac. R. R. Co. v. California, 118 U. S. 109, 30 L. ed. 103; Kansas v. Walruff, 26 Fed. 178; Kessinger v. Hinkhouse, 27 Fed. 883; Mahin v. Pfeiffer, 27 Fed. 892; Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497. Contra, Kentucky v. Chicago I. & L. Ry. Co., 123 Fed. 457. To the same effect are: Lemen v. Wagner (Iowa), 68 Iowa 660, 27 N. W. 814; Judge v. Arlen (Iowa), 71 Iowa 186, 32 N. W. 326; Dickinson v. Herb Brewing Co. (Iowa), 73 Iowa 705, 36 N. W. 651; Shear v. Bolinger (Iowa), 74 Iowa 757, 37 N. W. 164.

8 Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497.

9 Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 148.

tion of a Federal court over a suit based on an alleged impairment of a contract by a State, that there should be a valid contract, or that the impairment complained of should in fact be effected; but it is sufficient, for jurisdictional purposes, if the plaintiff in good faith claim the existence of such contract and its impairment.10 Where a bill is filed to enjoin the enforcement of a municipal ordinance, or resolution of a city council, which has the effect of an ordinance, 12 or to prevent the passage of one,13 which will violate an existing contract with the complainant; the case arises under the Constitution of the United States; provided that the ordinance is otherwise within the powers of the municipality. A breach by the State officers of a contract is not equivalent to the taking of property without due process of law and will not give the Federal court jurisdiction of a suit to enjoin the same.14

A municipal ordinance, not passed in accordance with legislative authority, is not an impairment by the State of the obligation of a contract and a suit to enjoin its enforcement, when it is in other respects due process of law, does not arise under

v. City of Utica, 179 Fed. 875; Columbus Ry. Power & Light Co. v. City of Columbus, Ohio, 249 U. S. 399; Mutual Film Co. v. Industrial Commission of Ohio, 215 Fed. 138.

11 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; affirming 60 Fed. 957; Mercantile Tr. & D. Co. v. Columbus, 203 U. S. 311, 51 L. ed. 198; Indianapolis Gas Co. v. Indianapolis, 82 Fed. 245; Consolidated Water Co. v. San Diego, 84 Fed. 369; Michigan Tel. Co. v. Charlotte, 93 Fed. 11; Consolidated Water Co. v. San Diego, 93 Fed. 849, 35 C. C. A. 631; Iron Mountain R. Co. of Memphis v. Memphis, C. C. A., 96 Fed. 113; Kimball v. City of Cedar Rapids, 99 Fed. 130; Mercantile Trust & Deposit Co. of Baltimore v. Collins Park & B. R. Co., 99 Fed.

812; Anoka Water Works, Electric Light & Power Co. v. City of Anoka, 109 Fed. 580; American Water Works & Guarantee Co. v. Home Water Co., 115 Fed. 171; Riverside & A Ry. Co. v. Riverside, 118 Fed. 736; Des Moines City Ry. Co. v. Des Moines, 151 Fed. 854. But see Bienville Water-Supply Co. v. Mobile, 175 U. S. 109, 44 L. ed. 92; affirming 95 Fed. 539.

12 Des Moines City Ry. Co. v. Des Moines, 151 Fed. 854.

13 Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 46 L. ed. 808; s. c., as Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453, 50 L. ed. 1102; Farmers' Loan & Tr. Co. v. Meridian, 139 Fed. 673. But see infra, § 271a.

14 Manila Investment Co. v. Trammell, 239 U. S. 31; City of Monroe v. Detroit, M. & T. S. L. Ry. Co., 257 Fed. 782.

the Constitution of the United States." Where the complaint averred that the enforcement of the ordinance would deprive the Complainant of its property without due process of law and the State constitution contained a prohibition of such deprivation it was held that the remedy must be first sought in the State couts.16 It has been said: that under the settled doctrine that

the courts can only deal with the question of the constitutic:alit of a legislative act after it has been passed, and are without jurisdiction to interfere with proposed or pending legislation, either State or municipal, the action of a city council in adopting the report of a committee finding that the franchise of a street railway company will expire at a certain time, contrary to the contention of the company, and recommending that the council. take measures to dispossess the company at the expiration of such time unless there is a previous renewal, does not give a Federal court jurisdiction of a suit to determine the controversy between the company and the city in respect to the terms of the grant, the ground that it presents a constitutional question as to impairment of the contract rights of the company.17 Where, addition to these facts, it appeared that the receivers of the corporation had received a notice from the superintendent of streets, that all permits issued to the company to work and make repairs upon the streets of the city were to be revoked at a specified time, it was held, that the receivers had a cause of action arising under the Constitution of the United States. 18 The mere refusal of a municipal corporation to perform a contract, even though that refusal is expressed in an ordinance containing a direction that the other party to the contract perform some act which the contract does not require but imposing no penalty

on

in

372. See, also, Hamilton Gas Light Co. v. Hamilton City, 146 U. S. 258, 265, 13 Sup. Ct. Rep. 90, 36 L. ed. 963; Barney v. New York, 193 U. S. 430, 24 Sup. Ct. 502, 48 L. ed. 737. Contra, San Francisco Gas & El. Co. v. City and County of San Francisco, 189 Fed. 943.

17 Elkins v. Chicago, 119 Fed. 957. 18 Blair v. Chicago, 201 U. S. 400, 405, 50 L. ed. 801.

for disobedience,19 does not present a case arising under the Constitution of the United States.2 20 In an action to vacate the charter of a railroad company because a majority interest therein had been purchased by a competitor, the bill alleged that such purchase was ultra vires because the Georgia Constitution forbids the legislature to grant such powers to any corporation where its effect might be to lessen or destroy competition. The petition for removal contended that this impaired the obligation of the contract embodied in the company's charter, which was granted before this provision of the Constitution took effect. It was held, that this presented a Federal question, although the Supreme Court of Georgia had theretofore decided that the charter did not confer the right claimed.21 It was held: that in an action by stockholders of a corporation, to set aside a lease executed by it as inconsistent with its charter, illegal and void, no Federal question was involved within the meaning of the removal act, when complainant alleged that the action of the directors in making the lease without the consent of the stockholders was not due process of law, and the defendants relied upon an act of the legislature not mentioned in the bill, which they averred that the plaintiff claimed impaired the obligation of a contract.22 In an action in the nature of quo warranto, brought in the name of the State by her attorney general to prevent a railroad company from controlling certain lands, defendant petitioned for removal, alleging that it acquired ownership in the land under an act of the legislature, and in accordance therewith exercised rights of ownership; that subsequently the act granting the land was repealed; and that such repealing act was a law impairing the obligation of contracts, and depriving persons of property without due process of law. It was held, that the petition showed a case arising under the Constitution of the United States, which was not eliminated by the attorney

19 St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 45 L. ed. 788.

20 St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 45 L. ed. 788; Dawson v. Columbia Tr. Co., 197 U. S. 178, 49 L. ed. 713; Shawnee Sewerage & Drainage Co. v. Stearns, 220 U. S. 462, 55 L. ed. 544, See

Defiance Water Co. v. City of Defi- • ance, 191 U. S. 184, 48 L. ed. 140. 21 South Carolina v. Port Royal & A. R. Co., 56 Fed. 333.

22 Central R. Co. of New Jersey v. Mills, 113 U. S. 249, 28 L. ed. 949; affirming Mills v. Central R. Co., 20 Fed. 449.