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1903 and reduction of tariff rates on articles imported from Cuba are not to be based on tariff rates on same articles imported from Philippines; United States v. Heinszen, 206 U. S. 380, 381, 11 Ann. Cas. 688, 51 L. Ed. 1101, 27 Sup. Ct. 742, upholding act of 1906 legalizing and ratifying imposition and collection of duties by United States in Philippine Islands prior to March 8, 1902.

Distinguished in MacLeod v. United States, 229 U. S. 433, 57 L. Ed. 1267, 33 Sup. Ct. 955, act of 1906 ratifying executive acts imposing duties does not apply to duties collected by military authorities at Manila on rice imported into Cuba in possession of de facto insurrectionary government.

183 U. S. 185–191, 46 L. Ed. 144, 22 Sup. Ct. 47, ARKANSAS v. KANSAS & TEXAS COAL CO.

Test of right to remove case to Federal court is whether such court might have exercised original jurisdiction.

Approved in dissenting opinion in Macon Grocery Co. v. Atlantic Coast Line R. R. Co., 215 U. S. 514, 54 L. Ed. 306, 30 Sup. Ct. 184, majority holding under act of 1888 Circuit Court in district of which defendant is not inhabitant has not jurisdiction of case arising under Federal Constitution and laws, even though diverse citizenship exists and plaintiff resides in district.

Right of removal must be determined by plaintiff's statement of his own claim.

Approved in Louisville etc. R. R. Co. v. Mottley, 211 U. S. 154, 53 L. Ed. 128, 29 Sup. Ct. 42, Federal court has no jurisdiction of suit against railroad to enforce contract for annual pass, because bill states refusal is based on anti-pass provisions of Hepburn Act of 1906; Joy v. St. Louis, 201 U. S. 340, 341, 50 L. Ed. 781, 26 Sup. Ct. 478, Federal court without jurisdiction of case where complaint sets up dispute over United States patent if real issue is over right to accretion formed since patent; Filhiol v. Torney, 194 U. S. 361, 48 L. Ed. 1017, 24 Sup. Ct. 698, allegation that United States took plaintiff's property without compensation establishing defendant therein does not give Federal court jurisdiction; Minnesota v. Northern Securities Co., 194 U. S. 64, 48 L. Ed. 878, 24 Sup. Ct. 598, allegation that combination of Minnesota roads by New Jersey corporation denies full faith to Minnesota law does not state ground for removal; Western Union Tel. Co. v. Southeast etc. Ry. Co., 208 Fed. 268, 125 C. C. A. 466, petition by telegraph company to condemn right of way, under State statute, for its line along railroad right of way does not present Federal question because condemnation might interfere with interstate commerce or navigable waters; McGoon v. Northern Pac. Ry. Co., 204 Fed. 1003, suit by shipper against railroad to recover for injury to interstate shipment is one arising under Interstate Commerce Act, and is removable; Taylor v. Anderson, 197 Fed. 386, allegation in petition in ejectment, unnecessarily deraigning title through

899 ARKANSAS v. KANSAS ETC. COAL CO. 183 U. S. 185-191

Indian allotment subject to act of Congress of 1902, did not show construction of act of Congress was involved, and Federal court has no jurisdiction; Bowers v. First Nat. Bank, 190 Fed. 677, denying motion to remand in action to recover damages for violation of escrow agreement, complaint alleging defendant's corporate existence, impliedly pleads statutory charter provisions and bank's want of power to obligate itself as escrow-holder appears upon face of complaint; Leggett v. Great Northern Ry. Co., 180 Fed. 316, complaint alleging facts bringing action within Employers' Liability Act of 1906 and Safety Appliance Act, but not alleging construction of acts is involved, is not removable; Miller v. Illinois Cent. R. Co., 168 Fed. 985, where complaint in action for injuries to servant of railroad brought under Federal Employer's Liability Act of 1908 does not show construction of act is involved, cause is not removable; People's United States Bank v. Goodwin, 160 Fed. 729, action for libel against individuals is not removable upon averments in removal petition that complaint fraudulently omitted fact that action complained of was taken by defendants as officers of United States to prevent removal; Arkansas v. Choctaw etc. R. Co., 134 Fed. 107, action by State to enjoin sale of property by corporation organized by act of Congress raises no Federal question; St. Louis etc. Ry. Co. v. Davis, 132 Fed. 632, State board's assessment of railroad property at higher rate than other property when unauthorized by State does not confer jurisdiction on Federal court; Commonwealth of Kentucky v. Chicago etc. Ry. Co., 123 Fed. 458, holding Circuit Court has no jurisdiction on removal of suit by State to enforce collection of tax imposed by State statute; Wichita v. Missouri etc. Telephone Co., 122 Fed. 100, holding not removable cause disclosing no reliance on any Federal law or the Constitution of the United States; South Carolina v. Virginia-Carolina Chemical Co., 117 Fed. 731, 732, holding no Federal question presented in suit against foreign corporation for penalty under State law purporting to be police measure; Darnell v. State, 174 Ind. 150, 90 N. E. 772, suit by State to recover taxes on property omitted from taxation against nonresidents is not removable where complaint raises no question under Federal law; Bresee v. Preston, 91 Neb. 176, 135 N. W. 545, where claim is made that act is void because not regularly passed, allegation that act was not legally passed is insufficient, but defect must be specifically pleaded; Shellenbarger v. Fewel, 34 Okl. 86, 88, 124 Pac. 620, 621, suit for possession of lands is not removable because construction of Creek law of descent may be involved; State v. Frost, 113 Wis. 651, 89 N. W. 921, holding Act of 1887, c. 373, concerning removal from State courts embodied requirement that plaintiff's statement must disclose Federal question.

Distinguished in Order R. R. Telegraphers v. Louisville etc. R. Co., 148 Fed. 440, suit based on Federal law may be removed to Federal court where complaint does not show jurisdictional amount involved if petition for removal does.

Jurisdiction cannot be conferred by allegation that defense will involve constitutionality of State statute.

Approved in Boston etc. Mining Co. v. Montana Ore Purchasing Co., 188 U. S. 639, 47 L. Ed. 632, 23 Sup. Ct. 437, holding Federal jurisdiction cannot be conferred by allegation as to intended defense where defendant disclaims intention to rely thereon; Tilhoil v. Maurice, 185 U. S. 111, 46 L. Ed. 829, holding ejectment against individual claiming ouster is violation of Constitution, and treaty with France presents no Federal question; Board of Councilmen of Frankfort v. State Nat. Bank of Frankfort, 184 U. S. 696, 46 L. Ed. 763, 22 Sup. Ct. 940, reversing and remanding to Circuit Court, with direction to remand to State court; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 294, 46 L. Ed. 548, 22 Sup. Ct. 454, holding no right of appeal from final judgment of Circuit Court of Appeals is given by act of 1891 by provision for review by certiorari or otherwise; Joy v. St. Louis, 122 Fed. 525, holding Federal jurisdiction cannot be conferred by plaintiff's allegation that his claim as to construction of confirmatory acts of Congress is disputed by defendant; Filhiol v. Torney, 119 Fed. 976, holding Federal jurisdiction not conferred by allegation in ejectment that defendant is in possession by direction of United States.

Bill showing relief sought is inconsistent with act of Congress merely shows bill is not maintainable and not that case is one arising under Federal Constitution and laws.

Approved in Williams v. First Nat. Bank, 216 U. S. 594, 54 L. Ed. 631, 30 Sup. Ct. 441, where plaintiff's right to recover is not predicated on Federal right, defense that transaction is prohibited by Federal law does not make case one arising under Federal Constitution and laws; State v. Louisville etc. R. Co., 104 Miss. 416, 61 South. 426, suit to enjoin railroad from engaging in intrastate commerce for violation of law prohibiting removal of suits is not removable upon averment of removal petition that order of commission sought to be enforced was unreasonable interference with interstate commerce.

State courts may decide Federal questions, and remedy for error is writ of error.

Approved in W. G. Coyle & Co. v. Stern, 193 Fed. 589, 113 C. C. A. 450, petition to seize and sell vessel under mortgage given by third person, stating that Federal marshal, disregarding State law, seized and sold vessel without reading notice of special mortgage thereon, does not show removable controversy.

Right of court to exercise judicial knowledge is subordinate to requirements of procedure.

Approved in Bankers' Mutual Casualty Co. v. Minneapolis etc. Ry., 192 U. S. 383, 48 L. Ed. 490, 24 Sup. Ct. 329, holding suit against railway company for value of registered mail package does not arise under Federal law; Mutual Life Ins. Co. v. McGrew, 188 U. S. 309, 312, 47 L. Ed.

901

WILSON BROS. v. NELSON. 183 U. S. 191-216

486, 23 Sup. Ct. 379, 380, holding failure to claim under treaty cannot be supplied by judicial knowledge; South Carolina v. Virginia-Carolina Chemical Co., 117 Fed. 732, holding suit against foreign corporation for penalty under State statute, purporting to be passed under police power, Federal laws not being mentioned, is not removable.

When police power and commerce power come into collision, that which is not supreme must give way.

Approved in Globe Elevator Co. v. Andrew, 144 Fed. 880, Laws Wis. 1905, c. 19, p. 37, requiring all grain passing through Superior to be of certain grade and weight void; State v. J. W. Kelly & Co., 123 Tenn. 566, 133 S. W. 1013, quashing indictment of person for violating law prohibiting sale of intoxicating liquor within four miles of schoolhouse, where act closing contract of sale of liquor to be shipped out of State is delivery to common carrier, and such act places liquor under protection of interstate commerce.

183 U. S. 191-216, 46 L. Ed. 147, 22 Sup. Ct. 74, WILSON BROS. v. NELSON. Under Bankruptcy Act, section 60, preference is given where enforcement of judgment gives creditor disproportionate percentage of debt.

Approved in Bradley Timber Co. v. White, 121 Fed. 784, 58 C. C. A. 55 (affirming White v. Bradley Timber Co., 119 Fed. 989, 990), holding failure to discharge preference obtained by legal proceedings within five days before property disposed of is act of bankruptcy; Morgan v. First Nat. Bank, 145 Fed. 470, 76 C. C. A. 236, execution of trust deed within four months prior to bankruptcy proceeding, to secure antecedent debt, intended to and operating as preference, is avoided by adjudication of bankruptcy; In re Ed. W. Wright Lumber Co., 114 Fed. 1013, holding execution of trust deed of debtor's property for claimant's benefit, to secure bank's claim of nineteen hundred and forty-five dollars, and claimant's nine hundred and forty dollars, constituted a preference; In re Metzger Toy etc. Co., 114 Fed. 958, holding payment to claimants made under execution, with no knowledge of insolvency, constituted preference under section 60a, Bankruptcy Act of 1898; Gabriel v. Tonner, 138 Cal. 65, 70 Pac. 1022, holding under Bankruptcy Act of 1898, § 60, intent of bankrupt is not essential element of preference; Hackney v. Raymond Bros. Clarke Co., 68 Neb. 639, 99 N. W. 677, assignment by creditor to purchaser of bankrupt's property, purchaser to withhold sufficient from purchase price to satisfy claim creates unlawful preference.

Distinguished in Thompson v. Fairbanks, 196 U. S. 527, 49 L. Ed. 586, 25 Sup. Ct. 306, enforcement of lien on after-acquired property under chattel mortgage recorded prior to passage of act does not constitute preference in absence of intent to prefer creditor; In re Hunt, 139 Fed. 289, unrecorded mortgage not required to be recorded by New York law creates valid lien if executed four months prior to bankruptcy; Wilder v. Watts, 138 Fed. 428, 430, agreement to borrow money to purchase goods, giving lender insurance policy on goods as collateral, is equitable

assignment, though policies not actually assigned till insolvency; In re Vetterman, 135 Fed. 445, creditor's petition in involuntary bankrupt proceeding, alleging that attachment has been made but not showing disposition, is insufficient; Thompson v. Fairbanks, 75 Vt. 373, 56 Atl. 15, holding mortgage lien obtained more than four months before bankruptcy is valid.

Result to creditor is essential fact under Bankruptcy Act.

Approved in Long v. Farmers' State Bank, 147 Fed. 365, 9 L. R. A. (N. S.) 585, 77 C. C. A. 538, insurance paid to bank within four months prior to bankruptcy proceeding constitutes preference though under antecedent agreement to assign policy as security for debt; In re Rung Furniture Co., 139 Fed. 527, 71 C. C. A. 342, insolvent's failure to discharge preference constitutes act of bankruptcy, though he does not aid creditor to secure preference; Johnston v. Huff, 133 Fed. 707, 66 C. C. A. 534, where debtor gives creditor order on third person to be presented on debtor's nonpayment, it constitutes preference where held for year and presented on day before bankruptcy; Bogen & Trummel v. Protter, 129 Fed. 534, 64 C. C. A. 63, permitting creditor to levy on property is giving preference constituting act of bankruptcy unless discharged five days before time for sale.

Distinguished in Hardy v. Gray, 144 Fed. 925, 75 C. C. A. 562, to render preference voidable under act of July 1, 1898, must have been intention on part of debtor to give preference.

Judgment and execution upon promissory note under power of attorney given years before are preference, where debtor fails to file voluntary petition in bankruptcy at least five days before sale of property.

Approved in Page v. Rogers, 211 U. S. 578, 53 L. Ed. 334, 29 Sup. Ct. 159, deed unrecorded and placed in escrow more than four months before bankruptcy and delivered within that period is preferential payment within bankruptcy law; Grandison v. National Bank of Commerce, 231 Fed. 808, where corporation more than four months before bankruptcy authorized assignment of accounts receivable to president to secure him for indorsing renewal notes, but no indorsement was made until within four months of bankruptcy, presumption is that assignment was at same time as indorsement, and transfer is preference; In re Herman, 207 Fed. 599, chattel mortgage given to secure antecedent indebtedness and which mortgagee had reasonabale grounds to believe would operate as preference, was voidable; In re Truitt, 203 Fed. 553, insolvent debtor confessing judgment to prefer creditors commits act of bankruptcy; Citizens' Banking Co. v. Ravenna Nat. Bank, 202 Fed. 894, 121 C. C. A. 250, quaere, whether merely permitting execution levy on real estate to remain undisturbed for three months and twenty-nine days is act of bankruptcy; In re Thomas, 199 Fed. 235, mortgage given by bankrupt to secure prior debt within four months of bankruptcy, when he was preparing to abscond without paying his debts, is void, though given pursuant to oral

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