organized therein, are, at the request of either party, transferable to the federal court. This statute not onlj>:' doeS: nbt'l1fiiit the right of transfer to the non-resident defendant, as is the fact in many of the clauses of bf1888;l>ut 'it pressly con 'it' up6h all:tlie parties, the gardlp.ss of their position onthe ll.nd vrith.9ut.li;mil;jl,tion ·as t<> theil:,iesidence.. Iri ,this particUJiudnestlltute.is too 'cleal't()Dllel!> eonstructiol'itdahow its meaning; In aubstance;'the federal the cases a! federal of the: fa?ts .e,,!sttng hraug?t; :.·f\P-P;, .lSQl\e ;()f, federal. of ;thepartles may cause it to be transferred to the federal court. It is not strictly a 'of removal from a of :the questIon whether, under the om.nlbu.s'l:illl, of successorship in the federal court. When $2,000. The were!i:e'SideritS andcitizefts'df di'frerent states, viewthe. act us to do, the of as being then 8 ,state;, fn:i'otherrWords, if;.riWhen'thig' wasbroughtl there 'had feder& colirt for S6uth Dakota/it'#ou,1d·have had jn'!isdictidn of 1th1!fcause; b?ingso, then: undettheon1nibus'act, .eitherpal'ty'(\(jldd cause' itt6' bMransfetrd4 into the federal court; ·This ''View is- in:'&ceorthmce' with ithe' constructionplaeed 'updri lthis section of .tneomtiious bill iti' the Wfittenoplniori; delivered' by,cru,dgeEIXlER'toN uponl ll.' simila:r motion to in the case Mining ·Gb.,injrri,t6 'which:refetance for' ,8 m,ord fup.'discussion oftha 'qMstioih ;'"'Motion to' remand , "' .. ""
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Apt pong. Eeb. 22, 1!l811; 1,1n4e.r the , 'l1nioHipro\"ldes,' in'section J:23;'thlit; 'upOn ttieowritteilootise,bt 'of'& 'party, all ·. pendilllf .ip tiJlJe pf·.dmission."Wheraof ilie circuit or dilltbi!\ "lltllstAbUsh«¥i migbt bave b!!'4 under tobe laws Oftbe , ..trict ':., 'United'States'had'!I1I.C1:iconrtli existed at tb'e tlmedf the"oommElnoement of'Such ,qallellj!' annll be the circuit alld; district !courts.. Beld, "thatt\1epr\>vision applietlto a in Wpich the plaintiff Wlil8 a, citizlln of DaJr:ota ,.! citi2en state, at the cOmmencement'of the . , ,'.'" ., ' 1 . I..""" . .' "':". ," ", ' .
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.LIORNgl V·. RICHMOND' S'lLVER MIN., CO.
691
UnitedlStatescircuit, district, or, state court, as the case zjlaybe: pro'vlded, howevel', that bi- all cIvil aCtions, causes, and proceedings In whicJi the. United States is not a party transfers shall not be made to the circuit and distrIct courts o!the United States ex.cept upon written request of ODe of the parties to such actIOn; * * * and, in the absence of such request, such cases shall be prQOOed¢.' with in the properlltate court." HeW that, upon 'such request, the state courti,sdeprived .of jUrhldiction, 8Jld the fede.\'llo1,court galJillexclusive jurisdictioti.
Va.n
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to Sqpremtt Court. of South Dakota. Wilaon,. for appellant. Mqaon, Moody, and Washabough, for respondent.
EDGERTON, J. This action was brought by the plaintiff, Victor Dome, agaioshthe :J;tichmond Silver'Mining Company in the month of October, district court, of the territory of Dakota for the county of Lawreqce,to"fecover damages for breach ofcontract. The case was tried in April, and a verdict rendered in favor of the plaintiff April 1o, 1889; for $15,375.75.. The delendant appealed from the judgment to the snpremecourt of the tetrHory of Dakota, and the cause was pending on appeal at the time of the 'admission of South Dakota as a state, on November 2, 1889; The defendant moved.to transfer the case from the Qf the state to this court, upon the ground of diverse oit,At the February, 1890, term, the supreme court of South Dakota transferred the case to this court. The plaintiff' now moves the court to remand the case tl) the supreme court of South Dakota·. The motion W {$nster the case'fromthe state court to this court was not ex parte, but the question was fully presented, pro and con, by the plainwascarei\llly considered by that court. See 44 N. W. Rep. 1021. oft,be is that section. 2, art. 3, of the: constitutio!t States ,only authorizes congress to extend. the. risdiction, oMhe'federal.courts, in cases where no other cause exists than diverse citizenship ,"to ,controversies between citizens of diflerent states," and not between citizens 'of a state and' territory.. Section 23 of the en.. a.bling coriferjurls<,liction on felieral courtaotthE> "whereofthe circuit or districtcourts stateE\8,Qwittedunder it in all nlignt have had jurisdiction under the law8.ofthe United,Stateshad such courts existed at the time of the commencement ofsucb· cases;" :that at the time this action was commenced, the plaintiff was a eitizetl'ofll;territory; and consequently coltld not translp,r his. case if this section attempts the' fEld. erM SJ;lpsd,lction in Class of Cases by reason of diverse the law is. unconstitutional. This- is the contention ofthe,respond:ent, and uponLthis, ground he asks for ,an order remanding the atatecourt. ' . 'are1hl'ee propositions submitted to the," q6»rt in the considera..·Was,it the .in theeq.of casell! i,hose to which the federal the, territorial <lourt? ,Second. If it was, is that portion of the act in conflict with, article 8 of ,the; <lonstitution of the
692
FEDERAL REPORTER,
vol. 43.
Qaae?;',,'
United States?
Third. If so, what coutt, if any, has jurisdiction of this
When a territory is admitted into the Union, the Cases then pending' in thei, territorial courts abate, unless congress in some measure, either directly or-inferentially, provides for their survivaL The territory of Dakota was not admitted by congress into the Union as one state, hut was divided into two states, and the two states admitted at the same time. Neither state succeeded the territory except as provided in the enabling act, and, unless congress, byt sorne legislation either in the act of admission or elsewhere, provided for the survival of causes pending at the time (If admission, then all such 'cases abate. Th¢,sl1preme court, in' Bennerv.'Po'l'ter, 9 How. 246, said, inter alia: "The territorial courts were the courts of thegeneralg6vel'nment, and the records.in ,the custody of their 'Clerks' th:e records of that government; and it ito tallow, necessarjly" fmm these pJ:emis/llt, that Doone ,could legally possession or ;o( tbe ,same without, thll' express or implied, of congress. SI1cb is, essential, l,lpOD" th,eplainest principles, to a.n, arithorized cha'ngeot , ',' .
LnHuntv. Palao, 4 How. '590, the ",The court of appeals' waila court of the United and the control over 'ItS records, therefore, Uelongs to the and not to the.state authorities; and it.testswith.congI'6SS to declare to whattribunal tpese,reqords andproceedjngsflhall be transferredlllJid how these jUdgments shall be carried into . . exeClItjon, or reviewed .rit of error." ';.. <.
Also, in Express 00. v. Kowntze, S·.,Wall. 342, Mt.Justice DAVIS" in delivering the opinion of the court, says: ' '," Before prdceeding to consldertlie merits· of it is neressary to dispose of the point of jurisdiction Which is raised., 'It is 'urged that the circuit court had no jurisdiction over.the cause, because there was 110 authority totrallsfer it. This depends on the constructionol' tbe acts of congress relating to the snbject. On the admissiqnof a new statE! into the ;Union, it becomes, necessary :to proyilie, nO,tonly for the judgll;umts and of the'tertitotialeourts, but also for tpeir Untlnished business., In recognition of this necessity, congress, after Florida became a state, passed an act providing, among. other things, that all cases offedera'charactet and juris'.diction pending in theconrts of the territory' be transfened to the district 'Court the district oU'lorida. The provisiQns of this act,we.re ,m1lgeapplicable. at the time of its passage, to cases pending in' courts of the late territory ofMicblgan, and were afterwards the, courts oftJle late territory of Iowa. Congress, inrriaking thIs provision fO,r the conditional Iowa, thOught proper in tl1esanie act to ad?ptn 'perman'ent system on this SUbject, and extended the proV'isions of the original and supple:Illentary·actstqcases from all terdLories:whicluhould aftel'w,ardsbe formed into states. ... ... ... It is said, if cases of a federal character wer,e properly transferablll to the was not one.of it does not appear that the, suit' was pet weeD 'citizens of different states: .... '" ... of proceedin'g in the court. below shows that ·the'partiest6 the suit 'recognized it as beil1g of fed·eral jurisdiction, and it cOllldonly lie so, as thel;e 'was no federai question hloVolved; on thE:' ground that the plaintiffs and de.Jendant were. citizens of different statIlS." ., . . . '.
DORNE tJ. RICHMOND .SILVER MIN. CO.
693
See, also, Balcer v. Mortell, 12 WalL 153 : "Wherievera territory is admitted into the Union as a state, the cases pend. ing in the territorial courts Ofa federal character or jurisdiction are transferred to the proper federal court; but all such as are not cognizable in the federal courts are transferred to the tribunals of the state. Pending cases, where the federal and state courts have concurrent may be transferred either to the state or federal courts bJ either party possessing . that option under the existing laws." This action. was commenced in the territorial court of Dakota,and was pending:in the supreme court of the territory when its courts ceased to exist by the formation of the states of South Dakota and North .Dakota into the Union. The inquiry is, what provision, if any, was made for .the survival of cases pending in the territorial courts at the time of the admission of the states? Section:23 of the enabling act for the admission of the states professes to make full and complete provision for the sUl'vival of all such cases, liHd reads. as' follows: "That; in· respect to all cases, proeeedings, and matters now pending in in the sllpremeor district courts of either of the territories· mentioned intilis act at the time of the.admission. into the Union of of the states lIlentioned in this, act, a,n,d arising within the limit.sof state, whereof .the .ci!·cUit or distrIct courts by this act established might have had jurisdiction, under the laws of the United titates, had such courts existed at the time ,of of such cases, the said circuit and district courts, respt#. ively, shall'be the successors'of said supreme and· district courts of.sa.id.territory; and, in respect to all other cases, proceedings, and matters pending in . the SUpre,rne (11' district court&of any of the territories mentioned at the ti.rne of the admission of such territory into the Unio,n,arising within the lim i til of said proposed state, the courts established by such statesball, re- . llpectlvely, be the succeSsors of said supreme and district territorial courts; and all tbe files, records, indictments, and proceedings 'relating to any, such ,cases shall 'be trausfetred to snch· circuit, district. and state courts, respectively, attd the same shall be proceeded with thm"ein in due course of law;. but no writ, action, indictment, cause, or proceeding now pending. or that, prior, to the admission of any of the.staies melltioned.in this act, shall be pending in allY territorial court in any of the territorif!s mentioned in this act, slM\1l ' .abate by the admission of any suchsta:te into tlle Union, but the same shall be transferred and proceeded with in the proper United States circuit, ,dis-' trict, or stat6oourt, as the, case may be: provided; however, that in all civil .actions, and proceedings in which the ,United states is not a party, transff'rsshall DOt be made, to the circuit llnd district courts oft/le United. States e;.ccept upon written request of one of the parties to such action or pro" such ,eeeding,filed hi the proper court; and, in the absence of siJch .easile shall be proceeded with in the proper state cour,ts...
1t is admitted that the. appellantfUed the written request in the proper ·court. It. is conceded. that the United States circuit court would not have, had jurlsdiction of the action at' the time of its commericement, for the son that the plaintiff was a citizen of a territory; hut that is not the ..question involved in this inquiry. The law provides that. upon a writ-ten request, all cases shall be tmnsferred to the federal circuit.anddie1rh:t coprtsAl.fter admission, :provided suehcourts would. have. had 'juris-
diction of the same under the kits. "bflfue Upited States;when ·the action wal\·ppmij!&;lI}peq."had, ,llud,th l1h NJ'.t() ,suqp ,caseB, th.e, :federaln00UJ'tB besUCCElSSOl's, of ,the ,territorial;'Court. : Now no circuit ddart:ofthe United StattJsf:caa', exist except>in'ft,'-state 'admitted atthecoullrlElncelbent of South time' state' 'i.'nthe Union, an,<,t the circuit court of the United States organized therein. This much for the intention of con$treBS'iD':'the imit-tter. ' oti 'the history of the admission of new states,and"the':OOgi'Slation of <longtess,"and the decisions of (the supreme court UP0lNlns question, itrleaves;no :doubt in my mind-as to ,the intention I of'eougte&s ito provide ;inth.e enabling act that the federal court should BUlroeOO'th'e territorial courts in this classof,cllses whenever a written Irequestr'Vias filtbd.,;Qs pl'O'Vid1:ld' in the act. 'Thertext inquiry is whether 'act are very reltreumt to declde'thttt,'parbcular legIslation IS unconstItutIOnal. , Mayorv.. ,(;bop", reported in 6 Wall. '24'?,"makes"'Ilse' ofther fonowhiglanguage when the· question of, the an 'uc£(of Cqhg1'ess was raised:.': , ',,' '. " · act' of be re.pugnant to ,But the .!luty:ill pf grE'at delicB:cy, an,d onll; tv,', Jm,' ',r.erflJrmel1, W, he,r,,e, t, 18 C,',I6I11', ar,ad the., CO'1I1i,ct Irre<:-, ", ,dou1:lt , be of til 'j'n'" , ..),... , t > ' .. 18 to" " ' , .. " in favor of the " ' .
oe'aKa:
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in 4:Dill" 264; was ,in many' lite i Uti! case ,at ' 'bar: !, The cou rt'\v!1S torematid, Ilnd and' onlY'gl'oupds that the petitq the, court, and had the It .would be.· matter of.surprise that' neitMr: the 'attorneys 'llorthEl :court should 'allude to the fact if the removing petitimier! his'case t'dl,He'United States' ic6\irts;'and that 'tlip-federal court had no par;f\Y.., of a when the action numerous c8sesto which my atteIltion hS9IbeeIl':'cnlJed,aild "find that they are cases in iwhich the courts construe'thelftrit!at1illg of the 'WOrHSi:embraced in the 'several removal acts astd when: milstexIst tliepetitioner to . tbis dlffjcrilty do,es, not exist, for entirely different tenns are used, and what construction C(}1l11't8 pmYJ plaleeiQn"doubtlu)o:Wordsiin prior .lawS fU1niahes slight authority for the interpretation of this, Congressdid not attempt to fer, caseS" to, :federalIcourt,' ,wber.e. the; federal' juilisdiction 'was based upon diverse ,aitHenshipi in "controversies between citizens of a state and a, te:rItitory, \bdt lboly :betw.een) oitimns of different states. The transfer cotiid onIY;Q6' ntade after tb:ejawnHssion of the state; Ii; It:was,then' that the caee bec8meone>of,a: federld jurisdiction! 'and the fact that congress declaredJhati tbeiedeOlalcourts,ahOu'1d 8ucceedin' those ,cases where the cit-
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qive.nmwhen .the actionwas commenced did not prevent :the Cims'efrQ:ru federalchatflcter and jurisdiction after thestate was (i;dmitted, ifthecitizenshipwas diverse when the state was admi,hed an,4:the Cause ,Hia solely a question ,of and succession. The territory had ceased: to eXist,and it became a controversy between a citizen of this state anli,the citi,zen of anothe.r state the established' ,the when, by theact of transfer effected. The antecedent date, the date of the cpmmencement of the action, neither'establisned nor deprived the of fi:x;ed when was.admiUed. . . ,Hare courts an:y Congresa succession qf penqing in territ<?t:ial ,the the :follow,ing words: etc. )' .,ab!lotC) py the admi!¥lioq of (LD,Y !!luch. ,into,the.lJJ,lion, but sh(l;ll P:I:Oceeq.ed. witljl.;in Stl!.t,esci);,q,istrict, state Qe," etc., with the ',prqyisp .iJ:l req\WSt..", .' '0 ,,;I; By of the eiilJ,bliqgll-ct"',,in th,e q( sucb prqper stQ.tewurts.", .'rbis the statEl CO\,llt or,in the worQS; of.th,eact, to of the to.tbe ,state qo»r,t, ,Thiscourt, then,)s t/llronlycourt ,tion ,qf clll&S of cases jn tbe. territorill.l.coqrt a.t tbEl time, of where the i Il ,theprovi80 23 of the en,l;\pliIlg fl,lilthave'beellobserv,ed. In, courtjnrisdi<r and pos::.iply, have the, jurisdicAfter;,the of the provisq of 23, ,exclusiv(l..jl1risdiction .onthe federal in 11.119 ...st;t..te jnits,qrdinance qas, ratified, th Consequently either this court has the exclusive jurisdiction, orEllse no court,1;l)ulj).lrisdiction. '.. , i " : " , " ", . copgressionallegislatiQn in: rGference. to the !Jurvival ,of this class of, ,there is no for their . and theY,musia,bate.T116,cl\se hasbeenl to tllilJco.qrtby CQurt. pi. SO\ltll the. provisions of the l}ct and ·t,he constitution of tbis . 1 tiI;l,<! ,no
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MURRAY,N.ELBON
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Co.,
(ctrcuu 'CIl1Lrt; 8.1J.'1O'Wa,W;D. 'September Term,l800:) . L RB¥OVAL OJ' CAUSES-RESID,EXCE OJ'
.A corporation, though carrying on 'business in several states, can have a residence only in the state in wbich it ,was (lreated; so·that the averment that .. corporation was created u,ndeJ;' the laws of IIrollll,rtllin state J)recludesthe idea have become a residllDt of 'another state; and Is 'sufficient in a petition for removal from .,state Ur81 court<-:' 'Dissenting from 'TlWetMng,.: ' " "tj