or modify a treaty with a foreign state. | 2. The resolution in question was introduced This question was considered by Mr. Attorney General Cushing in his opinion on certain Resolutions of Congress (6 Ops. Atty. Gen. 680), in which he held that while joint resolutions of Congress are not distinguishable from bills, and have the effect of law, separate resolutions of either House of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or heads of departments. The whole subject is there elaborately discussed. In any view taken of this resolution it appears to me that it can be considered only as expressing the individual views of the Senators voting upon it. I have no doubt the treaty might have provided, as did the act of Congress annex 3. A United States circuit court cannot, on a petition for removal from a state court of a suit to enjoin the importation of armed men Into Sebastian county, Arkansas, and the town of Huntington therein, where a strike exists, take judicial notice, for the purpose of maintaining jurisdiction, that such persons could only be brought to Huntington by way of the Indian territory, and that the word "import," as used in the bill, means to bring into from another state or foreign country, as the court cannot make the complainant's case other than it made it by taking judicial notice of facts which it did not choose to rely on in its pleading. A suit brought in the state court to enjoin the threatened importation of armed men into a county where a strike existed, on the ground that this would amount to a public nuisance and would endanger the health, morals, peace, and good order of the community, is not removable to a United States circuit court, under the act of March 3, 1887, as corrected by the act of August 13, 1888, as one arising under the Constitution and laws of the United States, since, even assuming that the bill shows upon its face that the relief sought would be inconsistent with the power to regulate commerce, or with regulations established by Congress, or with the 14th Amendment, it only demonstrates that the bill cannot be maintained, and not that the cause of action arose under the Constitution or laws of the United States. [No. 42.] cember 2, 1901. ing Hawaii, that the existing customs rela- Submitted October 23, 1901. Decided De(185]tions *between the Spanish possessions ceded by the treaty and the United States should remain unchanged until legislation had been had upon the subject; but in the absence of such provision the case is clearly controlled by that of De Lima v. Bidwell. STATE OF ARKANSAS, Appt., v. KANSAS & TEXAS COAL COMPANY and pany. (See S. C. Reporter's ed. 185-191.) United States. A PPEAL from an order of the Circuit Western District of Arkansas overruling a motion to remand the cause to the state See same case below, 96 Fed. 353. Statement by Mr. Chief Justice Fuller: This was a bill filed in the circuit court of Sebastian county, for the district of Greenwood, Arkansas, *by "The state of Ar-[186] kansas, on the relation of Jo Johnson, prosecuting attorney for the twelfth judicial circuit," against the Kansas & Texas Coal Com Removal of causes--diverse citizenship-pany and the St. Louis & San Francisco state not a citizen-judicial notice-suit action" alleged that the railroad company Railroad Company, which "for her cause of arising under Constitution and laws of was "a corporation organized under the laws of the state of Missouri, owning and operating a railroad in the twelfth judicial circuit of Arkansas and more particularly in Sebastian county, of said circuit;" that the coal company was "a corporation duly organized under the laws of the state of Mis 1. A sult in a state court between a state and foreign corporations is not removable to the United States circuit court as a controversy between citizens of different states, as a state is not a citizen. note. NOTE. On removal of causes generally-see | Gagan (C. C. N. D. Cal.) and 5 L. R. A. 476 and On removal of causes from state to Federal courts, where the Constitution of the United States, or an act of Congress, or a treaty, comes in question-see note to Little York Gold Washing & Water Co. v. Keyes, 24 L. ed. U. S. -656. See also Ferguson v. Ross (C. C. E. D. N. Y.) 3 L. R. A. 322, and note; Austin v. On removal of causes in cases of diverse citizenship-see notes to Delaware R. Constr. Co. v. Meyer, 25 L. ed. U. S. 593; Whelan v. New York, L. E. & W. R. Co. (C. C. N. D. Ohio) 1 L. R. A. 65; Seddon v. Virginia, T. & C. Steel & I. Co. (C. C. W. D. Va.) 1 L. R. A. 108; Huskins v. Cincinnati, N. O. & T. P. R. Co. (C. C. N. D. Tenn.) 3 L. R. A. 545; Brodhead v. Shoemaker (C. C. N. D. Ga.) 11 L. R. A. 567. On judicial notice-see Olive v. State (Ala.) 4 L. R. A. 33, and note. souri, owning and operating a coal mine in Huntington, in the Greenwood district of Sebastian county." "That a high state of excitement and condition of hot blood now prevails between striking miners and their sympathizers in large numbers, on the one side, and said coal company and its employees, on the other. That said coal company is threatening and is about to import into said county and town of Huntington, over the line of their codefendant's railroad, a large number of armed men of the low and lawless type of humanity, to wit, about 200, to the great danger of the public peace, morals, and good health of said county, and more particularly of said town. That said threatened action on the part of said defendant, if permitted to be executed, would become a great public nuisance, and would destory the peace, morals, and good health of said county and town, and would lead to riot, bloodshed, and to the dissemination of contagious and infectious diseases." The bill prayed "that the defendant Kansas & Texas Coal Company, its agents, servants, and employees, and each of them, be restrained and prohibited from importing or causing to be imported or brought into Sebastian county or the twelfth judicial circuit of Arkansas, and that the St. Louis & San Francisco Railroad Company, its agents, servants, and employees, each, both, and all of them,-be enjoined, restrained, and prohibited from importing, hauling, or bringing, or causing to be imported, hauled, or brought, in the said county or circuit, and from unloading or attempting to unload from any of its cars in said county or circuit, any and all large bodies of armed, lawless, or riotous persons or persons affected with contagious or infectious diseases that might endanger the [187]peace, good order, or good health of the state, or create a public nuisance in said county or circuit, under the pains and penalty of the law." A preliminary injunction was granted and process issued. Defendants filed their petition and bond for removal, and made application therefor, which was denied by the circuit court of Sebastian county, whereupon defendants filed in the United States circuit court for the western district of Arkansas a certified transcript of the record and of the pleadings and papers in the case. court. The circuit court of the United States overruled the motion to remand, and sustained the motion to dissolve, but declined to enjoin complainant. 96 Fed. 353. The cause came on subsequently for final hearing, the bill was dismissed, and this appeal was prosecuted. Mr. Ben T. Duval, submitted the cause for appellant: The record must show all the facts essential to give the court jurisdiction, else the court has no authority to assume jurisdiction. Tod v. Cleveland & M. Valley R. Co. 12 C. C. A. 521, 22 U. S. App. 707, 65 Fed. 145. Under the acts of March 3d, 1887, chap. 373 (24 Stat. at L. 433), and August 13, 1888, chap. 866 (25 Stat. at L. 433), a case not depending upon the citizenship of the parties, nor otherwise especially provided for, cannot be removed from a state court into the circuit court of the United States, as one arising under the Constitution of the United States, unless the fact appears by the plaintiff's statement of his own claim. Ogden Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 102, 15 Sup. Ct. Rep. 34. The statement of that fact in the petition for removal, or in a subsequent pleading, is not sufficient. Postal Teleg. Cable Co. v. United States, 155 U. S. 482, sub nom. Postal Teleg. Cable Co. v. Alabama, 39 L. ed. 231, 15 Sup. Ct. Rep. 192; East Lake Land Co. v. Brown, 155 U. S. 488, 39 L. ed. 233, 15 Sup. Ct. Rep. 357. This action, although brought upon the relation of Jo Johnson, as prosecuting at torney for the twelfth judicial circuit, is really a suit brought by the state, and therefore not removable on the ground of citizenship under the act of March 3, 1887, or August 13, 1888. Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161. A suit instituted by the state in one of its own courts against a citizen of another state is not removable on the ground of diverse citizenship of the parties. Alabama v. Wolffe, 18 Fed. 836; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260; Starin v. New York, 115 Ú. S. 248, 29 L. ed. 388, 6 Sup. Ct. Rep. 28; Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437. To give jurisdiction to a United States circuit court of the case by removal from a state under the act of 1875, the construction of the Constitution or a law or treaty of the United States must be directly involved in it. The petition for removal averred that Jo Johnson was a citizen of Arkansas, that defendants were citizens of Missouri, and that the controversy in suit was wholly between citizens of different states; and also that, treating the state of Arkansas as complainant, the suit was one arising under the Constitution and laws of the United States because defendants were engaged in interstate commerce, and the action was an unlawful interference therewith by reason of the commerce clause of the Federal Constitution and of laws passed in pursuance thereof; and which constituted a defense in the premises. Complainant moved to remand the cause, and defendants moved to dissolve the injunc- Messrs. Joseph M. Hill, James Briztion and that complainant be restrained zolara, and Adiel Sherwood submitted from the prosecution of the suit in the state' the cause for appellees: U. S., Book 46. 183 U. S. Starin v. New York, 115 U. S. 248, 29 L. ed. 388, 6 Sup. Ct. Rep. 28; Carson v. Dunham. 121 U. S. 421, 30 L. ed. 992, 7 Sup. Ct. Rep. 1030. 10 145 The verb "import" means to bring into the state from another state or foreign country. New York v. Compagnie Générale Trans, atlantique, 107 U. S. 59, 27 L. ed. 383, 2 Sup. Ct. Rep. 87; Standard Dict.; Webster's Dict.; Church of Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 227, 12 Sup. Ct. Rep. 511; United States v. Laws, 163 U. S. 258, 41 L. ed. 151, 16 Sup. Ct. Rep. 998; Wilson v. United States, 1 Brock. 423, 30 Fed. Cas. No. 17,846. Although a state is one of the parties, the case can be removed to the Federal court where a Federal question is involved. Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260. The test to determine the presence of a Federal question is whether the complaint shows on its face that some right, privilege, or immunity on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction. Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Starin v. New York, 115 U. S. 248, 29 L. ed. 288, 6 Sup. Ct. Rep. 28; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260; Southern P. R. Co. v. California, 118 U. S. 109, 30 L. ed. 103, 6 Sup. Ct. Rep. 993; Shreveport v. Cole, 129 U. S. 36, 32 L. ed. 589, 9 Sup. Ct. Rep. 210. These cases all arose prior to the present judiciary act, but in this respect the act of 1887-88, makes no change, and this line of authorities has been expressly approved and adopted in cases arising since the passage of the present judiciary act. New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 95. In determining this question the court looks into the real controversy, irrespective of any suppressions or omissions, etc., in the complaint, and if it is found, by fair intendment, to raise a Federal question, it is removable. South Carolina ex rel. Tillman v. Coosaw Min. Co. 45 Fed. 804. Causes are removable notwithstanding the complaint is demurrable. St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982; Schunk v. Moline, M. & S. Co. 147 U. S. 500, 37 L. ed. 255, 13 Sup. Ct. Rep. 416; Moon, Removal of Causes, § 44. court was of opinion that the bill could not be maintained; but, without intimating any conclusion to the contrary, or criticising its formal sufliciency, the question that mee us on the threshold is whether the se ought to have been remanded to the state court. We need not spend any time on the contention that this was a controversy between citizens of different states. The circuit court correctly held otherwise. The state of Arkansas was the party complainant, and u state is not a citizen. Postal Teleg. Cable Co. v. United States, 155 U. S. 482, sub nom. Postal Teleg. Cable Co. v. Alabama, 39 I ed. 231, 15 Sup. Ct. Rep. 192. We inquire, then, if the cause was removable because arising under the Constitution or laws of the United States. The general policy of the act of March 3. 1887, as corrected by the act of August 13, 1888 (24 Stat. at L. 552, chap. 373; 25 Stat. at L. 433, chap. 866), as is apparent on its face, and as has been repeatedly recognized by this court, was to contract the jurisdiction of the circuit courts. Those cases, and those only, were made removable under § 2, in respect of which original jurisdiction was given to the circuit courts by § 1. Hence it has been settled that a case cannot be removed from a state court into the circuit court of the United States on the sole ground that it is one arising under the Con stitution, laws, or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And, moreover, that jurisdiction is not conferred by allegations that defendant intends to assert a defense based on the Constitution or a law or treaty of the United States, or under statutes of the United States or of a state, in conflict with the Constitution. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Rep. 738; Sawyer v. Kochersperger, 170 U. S. 303, 42 L. ed. 1046, 18 Sup. Ct. Rep. 946; Florida C. & P. R. Co. v. Bell, 176 Ù. S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399. *In this case the state asserted no right [189] under the Constitution or laws of the United States, and put forward no ground of relief derived from either. There were no averments on which the state could have invoked the original jurisdiction of the circuit court Mr. Chief Justice Fuller delivered the under § 1 of the act, and that is the test of opinion of the court: the right of removal under § 2. The gravamen of the bill was the injury The police power was appealed to, the to the health, morals, peace, and good order power to protect life, liberty, and property, of the people of the town and county, the in- to conserve the public health and good or fiction of which was alleged to be threat- der, which always belonged to the states, [188]ened by the *bringing within their precincts and was not surrendered to the general gov of certain persons by defendants. No stat- ernment, or directly restrained by the Čonute of the state was referred to as appli- stitution. The 14th Amendment, in forbidcable, but the enforcement of the police pow-ding a state to make or enforce any law er was sought through the interposition of abridging the privileges or immunities of a court of equity by way of prevention of citizens of the United States, or to deprive an impending public nuisance. The circuit any person of life, liberty, or property with 146 183 U. out due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, did not invest Congress with power to legislate upon subjects which are within the domain of state legislation. Re Rahrer, 140 U. S. 554, sub nom. Wilkerson v. Rahrer, 35 L. ed. 574, 11 Sup. Ct. Rep. 865. It is true that when the police power and the commercial power come into collision, that which is not supreme must give way to that which is supreme. But how is such collision made to appear? Defendants argue that the circuit court might have properly taken judicial notice, or did so, of the fact that the persons whose advent was objected to as perilous to the community could only be brought to Huntington by way of the Indian territory, and also that the word "import" as used in the bili meant to bring into from another state or foreign country; that, therefore, "the question is fairly presented by the complaint whether the state of Arkansas has the authority to prevent the coal company and the railroad company from bringing into the state, over the line of this railroad, laborers from other states or foreign countries;" and hence that the circuit court had jurisdiction. We do not agree with either premise or conclusion. The word "import" necessarily meant bringing into the county and town from outside their boundaries, but we do not think, taking the whole bill together, that as here used its necessary signification was the bringing in from outside of the state. [190] *And as to judicial knowledge, the princi ple applies "that the right of a court to act upon what is in point of fact known to it must be subordinate to those requirements of form and orderly communication which regulate the mode of bringing controversies into court, and of stating and conducting them." Thayer, Ev. chap. 7, 281. In Mountain View Min. & Mill. Co. v. McFadden, 180 U. S. 533, 45 L. ed. 656, 21 Sup. Ct. Rep. 488, which was a petition for removal, the suit was one brought in support of an adverse claim under the Revised Statutes, §§ 2325, 2326, and it had been previously decided that such a suit was not one arising under the laws of the United States in such a sense as to confer jurisdiction on the Federal courts regardless of the citizenship of the parties. And we said: "It is conceded by counsel on both sides that those decisions are controlling, unless the circuit court was entitled to maintain jurisdiction by taking judicial notice of the fact that the Mountain View lode claim was located upon what had been or was an Indian reservation,' and 'of the act of Congress declar. ing the north half of the reservation which the claim was upon located, to have been restored to the public domain:' notwithstanding no claim based on these facts was stated in the complaint. But the circuit court could not make plaintiffs' case other than they made it by taking judicial notice of facts which they did not choose to rely on in their pleading. The averments brought no controversy in this regard into court, in respect of which resort might be had to judicial knowledge." Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34; Com. v. Whecler, 162 Mass. 429, 38 N. E. 1115; Partridge v. Strange, 1 Plowd. 77. But even assuming that the bill showed upon its face that the relief sought would be inconsistent with the power to regulate commerce, or with regulations established by Congress, or with the 14th Amendment, as contended, it would only demonstrate that the bill could not be maintained at all, and not that the cause of action arose under the Constitution or laws of the United States. When Federal questions arise in cases pending in the state courts, those courts are competent. and it is their duty, to decide them. *If errors supervene, the remedy by [191] writ of error is open to the party aggrieved. Robb v. Connolly, 111 U. S. 624, 637, 28 L ed. 542, 546, 4 Sup. Ct. Rep. 544. Decree reversed and cause remanded, with a direction to remand to the state court. Costs of this court and of the circuit court to be paid by the appellees and defendants. The failure of an insolvent debtor to file a vol- [191] Cassius B. Nelson for the purpose of having | sitting in bankruptcy, to procure an adju him adjudicated a bankrupt. Questions answered in the affirmative. Statement by Mr. Justice Gray: *The circuit court of appeals for the seventh circuit certified to this court the following statement of facts and questions of law: "On February 5, 1885, Cassius B. Nelson executed and delivered to Sarah Johnstone his promissory note in writing for the sum of $8,960, payable 'five years or before after date,' with interest at the rate of 4 per cent per annum until paid. To this note was attached an irrevocable power of attorney, duly executed by the said Nelson under his hand and seal in the usual form, authorizing any attorney of any court of record in his name to confess judgment thereon after [192]maturity of the note. This note was given for so much money at the time loaned to Nelson, and the interest on the note was paid from time to time up to November 1, 1898. Nelson was a trader, and entered into business as such at the city of Madison, Wisconsin, soon after the giving of the note, and carried on such business until his stock in trade was levied upon by the sheriff under execution, as hereinafter stated. On November 1, 1898, Nelson, as he well knew, was and had long been insolvent, and thereafter continued to be and is now insolvent, his liabilities largely exceeding his assets. "On November 21, 1898, Sarah Johnstone caused judgment to be duly entered in the circuit court of the state of Wisconsin for the county of Dane against said Nelson upon the note and warrant of attorney aforesaid for the sum of $8,975, damages and costs, being the face of the note and $15 costs. Upon that judgment execution was immediately thereafter issued out of the court to the sheriff of that county, who thereunder and by authority thereof on the same day levied upon the stock and goods of Nelson, and thereafter and on December 15, 1898, sold the same at public auction, and applied the proceeds thereof, to wit, the sum of $4,400, upon and in part payment of the judgment so rendered. This proceeding left the said Nelson without means to meet any other of his obligations. The judgment was so entered and the levy made without the procurement of Nelson and without his knowledge or consent. Such judgment was not subject to attack by Nelson, and could not have been vacated or discharged by any legal proceedings which might have been instituted by him in that behalf; nor could the levy under the execution issued upon such judgment have been set aside or vacated by Nelson, except by his filing his voluntary petition in bankruptcy prior to the sale, and obtaining an adjudication of bankruptcy thereunder, or by payment of the judgment. "On December 10, 1898, creditors of the said Nelson, of the requisite number and holding debts against him to the requisite amount, filed their petition against the said Nelson in the district court of the United States for the western district of Wisconsin, dication against him as a bankrupt. The [193] act of bankruptcy therein alleged was in substance that while insolvent he suffered and permitted the said Sarah Johnstone, one of his creditors, to obtain preference upon his property, through legal proceedings, by the entry of the said judgment and the levy thereunder upon his stock of goods, and failed to vacate or discharge the preference obtained through such legal proceedings at least five days before the sale of the property under such judgment and execution. Upon issue joined, the district court ruled that the said Nelson had not, by reason of the premises, committed an act of bankruptcy, and this ruling is before us for review. "The questions of law upon which this court desires the advice and instruction of the Supreme Court are: "1. Whether the said Cassius B. Nelson, by failure to file his voluntary petition in bankruptcy before the sale under such levy, and to procure thereon an adjudication of bankruptcy, or by his failure to pay and discharge the judgment before the sale under such levy, committed an act of bankruptcy, within the meaning of § 3a, subd. (3), of the bankrupt act. "2. Whether the judgment so entered and the levy of the execution thereon was a preference 'suffered' or 'permitted' by the said Nelson within the meaning of clause (3) of § 3a of the bankrupt law. "3. Whether the failure of Nelson to vacate and discharge the preference so obtained, if it was one, at least five days before the execution sale, was an act of bank. ruptcy." Mr. Harrison Musgrave argued the cause, and, with Messrs. Daniel K. Tenney and James M. Flower, filed a brief for appellants: The three questions certified should be answered in the affirmative. Re Reichman, 91 Fed. 624; Re Moyer, 93 Fed. 188; Re Cliffe, 94 Fed. 354; Re Arnold, 94 Fed. 1001; Re Ferguson, 95 Fed. 429; Re Rome Planing Mill, 96 Fed. 812; Parmenter Mfg. Co. v. Stoever, 38 C. C. A. 200, 97 Fed. 330; Re Chapman, 99 Fed. 395; Bear v. Chase, 40 C. C. A. 182, 99 Fed. 920; Re Thomas, 103 Fed. 272; Re Meyers, 1 Am. Bankr. Rep. 1, 1 N. B. N. 207; Collier, Bankruptcy, 3d ed. p. 37; Re Storm, 103 Fed. 618. The word "preference," as used in the act, has no necessary reference to the intent of the debtor. Re Richards, 37 C. C. A. 634, 96 Fed. 936; Bear v. Chase, 40 C. C. A. 182, 99 Fed. 920; Re Kenney, 45 C. C. A. 113, 105 Fed. 897. The payment of a matured account in the course of business is a "transfer" within the meaning of the bankruptcy act, and, if made during insolvency, and within four months of the filing of a petition in bankruptcy, is a preference under § 60a. Columbus Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400. |