Statement of Facts. STARIN & Another v. NEW YORK. INDEPENDENT STEAMBOAT COMPANY v. APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Submitted April 22, 1885.-Decided November 2, 1885. When it appears in a suit that some title, right, privilege or immunity on which recovery depends, will be defeated by one construction of the Constitution or laws of the United States, or sustained by the opposite construction, the case is one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of March 3, 1875, 18 Stat. 470. The questions whether the City of New York has the exclusive right to establish ferries between Manhattan Island and the north shore of Staten Island on the Kill von Kull; and, whether in a given case this right has been interfered with by the setting up of a ferry without license, are not questions arising under the Constitution or laws of the United States. A separate defence by one defendant, in a joint suit against him and others upon a joint or a joint and several cause of action, does not create a separate controversy, so as to entitle that defendant, if the necessary citizenship exists as to him, to a removal of the cause under the second clause of § 2, act of *March 3, 1875. Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, 114 U. S. 57; and Pirie v. Tvedt, 115 U. S. 41, affirmed. These were appeals from orders of the Circuit Court remanding a suit which had been removed from a State court under the act of March 3, 1875, ch. 137, 18 Stat. 470. The questions to be decided arose on the following facts: The Mayor, Aldermen and Commonalty of the City of New York, a municipal corporation of the State of New York, commonly called the City of New York, brought a suit in equity on or about the 11th of August, 1884, in the Superior Court of the City of New York, against John H. Starin, Independent Steamboat Company, Starin's City, River and Harbor Transportation Company of New York, New York and Staten Island Steamboat Company, David Manning, Franklin Wilson, William Clark, John G. Belknap, James B. Corwin, Max Golden, Sam Statement of Facts. uel Underhill, and Frank Smith, to restrain them from using and employing the steam ferry-boats Pomona, D. R. Martin, Laura M. Starin, and Castleton, or any other vessel or vessels of any kind, for and in the transportation of persons, animals, vehicles, freight, goods, and chattels from or to Pier No. 18, North River, or from or to any place in Manhattan Island to or from certain landing places on the shore of Staten Island, without the license or permission of the plaintiffs; and also for an account of moneys received by the defendants, or any or either of them, for such transportation. Both Manhattan Island and Staten Island are in the State of New York. The cause of action as stated in the complaint was, that the city, under its charter, granted originally January 15, 1730, by the Province of New York, and since confirmed by the State of New York, has the exclusive right of establishing ferries from Manhattan Island to the opposite shores, in such and so many places as the common council may think fit; that the defendants, without the permission of the city, had set up and were maintaining a ferry between Manhattan Island and certain landing places on Staten Island, and for that purpose employed the boats above named; that the defendant Starin was the owner of the Castleton and the D. R. Martin, and the person chiefly interested in Starin's City, River and Harbor Transportation Company of New York, which owns the Laura M. Starin, and in the New York and Staten Island Steamboat Company, which owns the Pomona; that while the business was done in the name of the Independent Steamboat Company, that company was organized and incorporated through his instrumentality and in his interest, and was composed of but three persons, all of whom were in his employ and under his control; that the incorporation of the company was a device for his own personal benefit; and that he was in fact the person actually operating the ferry. The certificate of incorporation, a copy of which was attached to the complaint, showed that the company was organized under the laws of New Jersey, July 26, 1884, with a capital of $5,000, divided into five hundred shares of $10 each, all owned by three persons, for the transportation of persons and property upon water as common Statement of Facts. carriers for hire; that the principal part of the business of the company in New Jersey was to be transacted in Jersey City; and that the business out of that State was to be done in the cities of New York and Brooklyn and the several villages, landing places, cities and towns on the Hudson River, Staten Island, and Long Island, in New York, accessible by water. The defendants Starin, Independent Steamboat Company, Starin's City, River and Harbor Transportation Company, and New York and Staten Island Steamboat Company each filed a separate answer to the complaint. All the other defendants, who were the masters or pilots or engineers employed in running the several boats, united in one answer. The answers all contained substantially the same defences. They admitted the ownership of the boats as set forth in the complaint, except that it was alleged the Castleton belonged to the New York and Staten Island Steamboat Company instead of Starin. They admitted the charter of the city, with words purporting to grant certain rights as to the establishment of ferries from Manhattan Island to the opposite shores, but denied that this grant extended to ferries between New York and that part of Staten Island which borders upon the Kill yon Kull. They admitted that the several boats mentioned in the complaint were run at stated times by the Independent Steamboat Company, under the management of the masters and engineers, without the license or permission of the city, for the transportation of persons and property between Pier 18, North River, which is on Manhattan Island, and certain landing places on the shore of Staten Island, making daily fourteen trips, or thereabouts, but they denied that, in so doing, the company either operated a ferry or usurped any franchise belonging to the city. They also denied the allegations in the complaint as to the connection of the defendant Starin with the Independent Steamboat Company, and denied that Starin was the person who was actually operating the boats. The answers then alleged, "as a matter of special defence under the laws of the United States". 1. That the Independent Steamboat Company was a corporation, organized and incorporated under the laws of New Statement of Facts. Jersey, for the purpose of transporting persons and property by water, as a common carrier for hire, in and over the waters of the Hudson River, Kill von Kull, Raritan Bay, and their tributaries, between places on such waters in New York and New Jersey, including Staten Island and Long Island, and the cities of New York and Brooklyn; that the company chartered the boats in question from the several owners thereof, and leased wharves and landing places in New York and on the shore of Staten Island bordering on the Kill von Kull, for the purpose of engaging in the business of transportation by water between such wharves and landings. 2. That all the boats in question were enrolled and licensed, under the laws of the United States for carrying on the coasting trade, as vessels of the United States, and that the individual defendants described as masters or engineers on the boats are all licensed under the laws of the United States to act as masters or pilots, or as engineers, on steam vessels upon the waters traversed by the boats in question. 3. That for a number of years terminating in 1874 steamboats, similar to those operated by the company, and doing a transportation business similar to that in which the company is engaged, had been, without any license or permission from the city, navigated from Pier 18, New York, to the landing places on Staten Island made use of by the company, and back; that large sums were realized therefrom, and that since 1874 this business has greatly increased. 4. That the waters of the Hudson River or bay of New York, and the Kill von Kull, are waters of the United States, and public and common highways of interstate and international commerce; that the steamboats as operated by the company do not constitute a ferry within the meaning of the laws of the United States, or of the State of New York, or of the city charter, but that the city seeks, under the cover of its charter and by this suit, to establish in itself, as and for a monopoly and as private property, the ownership of all rights to carry on commercial intercourse, consisting in the daily or regular interchange or transportation of passengers and property between Manhattan and Staten Islands, over such waters, Argument for Appellants. and to obstruct the navigation of such waters, although carried on by citizens of the United States in steam-vessels duly enrolled and licensed under the laws of the United States, and navigated by masters, pilots and engineers duly licensed under the laws of the United States, thus practically nullifying the laws of the United States regulating commerce and navigation. After the answers were filed two petitions were presented for a removal of the suit to the Circuit Court, one by all the defendants, on the ground that the suit was one arising under the Constitution and laws of the United States, and the other, by the Independent Steamboat Company alone, on the ground that there was in the suit a controversy wholly between that company and the city as to whether the company "had or had not the right to use and operate its steamboats" in the way contended for, and that this controversy could be fully determined as between them. A copy of the record in the State court having been filed in the Circuit Court of the United States, that court remanded the cause, and thereupon these appeals were taken, one by all the defendants, and the other by the Independent Steamboat Company alone. The two appeals were docketed in this court separately. Mr. Roscoe Conkling, Mr. James McNamee, Mr. A. L. Pincoffs, and Mr. Charles McNamee for appellants.—On behalf of Starin and Others appellants the counsel argued in their brief as follows: I. The rule governing jurisdiction is undoubtedly the same, whether the Constitution or a law of the United States is involved in the case. As to that rule, it has been already held by this court, "If a part of a case turns on Federal law, the Circuit Court has jurisdiction." Osborn v. Bank of United States, 9 Wheat. 738. "Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party in whole or in part by whom they are asserted." Railroad Co. v. Mississippi, 102 U. S. 135. "Cases arising under the laws of the United States within the meaning of the Removal Act are |