fense depends upon a provision of such laws or Constitution." An omission in this respect in the plaintiff's pleading is not cured by the petition of removal, or by an amendment filed subsequent to the removal.7 Where a removal is sought because the suit arises under the Constitution or laws of the United States, all the defendants must join in the petition; although the sole ground is that one of them is a corporation chartered by Congress. The fact that the plaintiff's pleading shows that his suit cannot be maintained, because it is inconsistent with the Constitution or laws of the United States, or because the questions involved have been already decided by the Supreme Court of the United States, 10 does not justify removal. There can be no removal of a suit against a refrigerator car company for damage to fruit in transit over a railroad engaged in interstate commerce when the requisite difference in citizenship does not exist and the matter in dispute is less than the jurisdictional amount.11

A suit was removed when brought for injury to an interstate shipment against a collecting carrier who had received the goods from the initial carrier,12 but not such a suit when brought against the initial carrier.13

It was held that a suit arising under the postal laws, the institution of which in a State court was authorized by the

5 Oregon S. L. & U. N. Ry. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048; Tennessee v. Union & P. Bank of Com., 152 U. S. 454, 38 L. ed. 511; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85; Postal Tel. C. Co. v. Alabama, 155 U. S. 482, 39 L. ed. 231; East L. L. Co. v. Brown, 155 U. S. 488, 39 L. ed. 233; 180 U. S. 535; Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335, 45 L. ed. 220; Miller v. Le Mars Nat. Bank, 116 Fed. 551; § 24.

6 Rural Home Telephone Co. v. Powers, 176 Fed. 986; W. G. Coyle & Co. v. Stern, C. C. A., 193 Fed. 582. But see infra, §§ 551, 552.

7 Caples v. Texas & P. Ry. Co., 67 Fed. 9.

8 Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U. S. 245, 44 L. ed. 1055; infra, § 542.

9 Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 46 L. ed. 144.

10 Alabama G. S. Ry. Co. v. Am. Cotton Oil Co., C. C. A., 229 Fed. 11.

11 Emery & Co. v. Am. Refrigerator Co., 246 U. S. 634.

12 Alabama Great Southern Ry. Co. v. Am. Cotton Oil Co., C. C. A., 229 Fed. 11.

18 Adams v. Chicago Great Western R. Co., 210 Fed. 362.

14 New Orleans Nat. Bank v. Merchant, 18 Fed. 841.

Revised Statutes, might be removed into a Federal court upon the ground that it arose under a law of the United States.14

The District Courts have jurisdiction "of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title 'National Banks,' Revised Statutes, to enjoin the comptroller of the currency, or any receiver acting under his direction, as provided by said title. And all national banking associations, established under the laws of the United States, shall, for the purposes of all other actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located." 15

A federal reserve bank which does not serve the public generally and locally is not a national banking association within the meaning of the section of the Judicial Code.16 It may remove a suit brought against it where the value of the matter in dispute is sufficient upon the ground that the suit arises under the laws of the United States.17

§ 537c. Removals of suits where the cause of action arose on ceded territory. Where the cause of action arose on territory ceded by a State to the United States, the suit arises under the Constitution and laws of the United States, and if the subject matter exceeds the jurisdictional amount it may be removed; although the decision depends upon the construction of a State law there in force.2 In such a case the fact that the plaintiff's statement of his cause of action need not show that it arises under the Constitution or laws of the United States does not prevent the removal.3

§ 537d. Removal of suits arising under the Employers' Liability Law. By the Act of April 5, 1910, "no case arising under an Act entitled 'an act relating to the liability of com

15 § 24, subd. 16, 36 St. at L. 1087. See supra, § 28.

16 American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, Ga., C. C. A., 269 Fed. 4.

17 Ibid.

$ 537c. 1 Steele v. Halligan, 229 Fed. 1011. See supra, §§ 24, 66a.

2 Ibid.

3 Ibid.

mon-carriers by railroad to their employees in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States." 1 For a case to come within the scope of this act, two things must concur: the common carrier must be engaged in interstate commerce, and the injury must be suffered by the employee while engaged in such commerce.2 The complaint need not refer to the Act of Congress. It has been said that it is sufficient when the plaintiff alleges that he was himself engaged in interstate commerce and was injured by an interstate railroad.4

Where the complaints were expressly based upon two grounds of recovery, one under the Federal Employers' Liability Act, and the other under the State statutes, removals were allowed.

An action against a railway company and a sleeping car company for an injury to an employee of the latter is removable when the necessary diversity of citizenship exists and the matter in dispute is not less than the jurisdictional amount.

It has been held that an objection to the jurisdiction based upon this statute cannot be waived."

§ 537e. Removals of suits against common carriers for loss in transportation. By the Act of January 14, 1914, the Judicial Code is amended so as to provide "that no suit brought in any State court of competent jurisdiction against a railroad company, or other corporation or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of or injury to property received for transpor

§ 537d. 136 St. at L. 291, ch. 143.

2 Southern Ry. Co. v. Loyd, 239 U. S. 496, 36 Sup. Ct. 210, 60 L. ed. 402; Great Northern Railway Co. v. Alexander, 246 U. S. 276; Ullrich v. N. Y., N. H. & H. R. R., 193 Fed. 768; Givens v. Wight, 247 Fed. 233; Frazier v. Hines, 260 Fed. 874; Frazier v. Hines, 260 Fed. 874. See supra, § 454j.

3 Ullrich v. N. Y., N. H. & H. R. R. Co., 193 Fed. 768.

4 Ibid.

5 Bedell v. Baltimore & O. R. Co., 245 Fed. 788; Givens v. Wight, 247 Fed. 233.

6 Martin v. N. Y., N. H. & H. R. Co., 241 Fed. 696.

7 Mitchell v. Southern Ry. Co., 247 Fed. 819; Deuel v. Chicago, B. & Q R. Co., 253 Fed. 857. But see Illinois Cent. R. Co. v. Egan, C. C. A., 203 Fed. 937; infra, § 556a.

tation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended June twenty-ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of three thousand dollars.1

It is doubtful whether this applies to a suit against a refrigerator car company.2

1

§ 537f. Removal of suits to which aliens are parties. A nonresident alien defendant may remove a suit involving the jurisdictional amount, when all the parties on the opposite side of the controversy are citizens and residents of the same State of the United States, and when the plaintiffs reside in the same district where the suit is brought; 1 and it has been held when they reside elsewhere.2 A resident alien cannot when no Federal question is involved.3 It has been held, that when a non-resident alien is joined as a defendant with a nonresident citizen of a different State from that of a resident plaintiff, they may jointly remove the case if the jurisdictional amount is involved; but this cannot be done when the plaintiff

§ 537e. 1 Ch. 11, 38 St. at L. 278, Comp. St., § 1010. See Southern Pacific. Co. v. Stewart, 245 U. S. 359; supra, § 32a.

2 See E. H. Emery & Co. v. Am. Refrigerator Co., 246 U. S. 634, 636. § 537f. 1 Cooley v. McArthur, 35 Fed. 372.

V.

2 Wind River Lumber Co. Frankfort Marine, Accident & Plate Glass Ins. Co., C. C. A., 196 Fed. 340; Attleboro Mfg. Co. v. Frankfort Marine Accident & Plate Glass Ins. Co., 202 Fed. 293.

3 Johnson v. Monell, Fed. Cas. No. 7,399 (1 Woolw. 390); Sands v. Smith, Fed. Cas. No. 12,305 (1 Abb. U. S. 368, 1 Dill. 290); Cudahy v. McGeoch, 37 Fed. 1; Walker

v. O'Neill, 38 Fed. 374; Eddy v. Casas, 118 Fed. 363; Miller v. New York Cent. & H. R. R. Co., 147 Fed. 771; Rooker v. Crinkley, 113 N. C. 73, 18 S. E. 56. Contra, Best v. Great Northern Ry. Co., 243 Fed. 789. See Bradshaw v. Bowden, 226 Fed. 323.

4 Ballin v. Lehr, 24 Fed. 193; where the report does not show whether the alien was a resident or a nonresident; Roberts v. Pac. & A. Ry. & Nav., Co., C. C. A., 121 Fed. 785, 58 C. C. A. 61, affirming 104 Fed. 577; Ladew v. Tennessee Cop per Co., 179 Fed. 245; H. G. Baker & Bro. v. Pinkham, 211 Fed. 728, 731. See, also, Rateau v. Bernard, 3 Blatchf. 244, Fed. Cas. No. 11,579.

A

is not a resident of the State where the suit is brought. suit by a State in its own court against an alien cannot be removed. The authorities are in conflict as to whether a defendant, who is a citizen and resident of a different State from that where the suit is instituted, can remove an action brought by an alien in the State court. The preponderance of the more recent authorities holds that he cannot, whether the alien is a resident,7 or nonresident of the State where the suit is brought.

Where the suit is originally brought in the State court, the defendant by the removal consents to the jurisdiction of the court of the United States, and the plaintiff alone can make an objection founded upon the residence of either of the parties.9

There can be no removal, by reason of a diversity of citizenship, when the controversy is between two aliens; 10 nor when a citizen of the same State as that of the opposite parties is on

Contra, Tracy v. Morel (D. Nebraska), 88 Fed. 801; Best v. Great Northern Ry. Co., 243 Fed. 789 (where the alien lived in the state where the suit was brought).

5 Carp v. Queen Ins. Co. (W. D. Mo.) 168 Fed. 782. Contra, Ladew v. Tennessee Copper Co. (S. D. Tenn.), 179 Fed. 245, 256.

6 O'Conor v. Texas, 202 U. S. 501.

7 Kamenicky v. Catterall Printing Co. (S. D. N. Y.), 188 Fed. 400 (in which the author was counsel); Odhner v. Northern Pac. Ry. Co. (S. D. New York) 188 Fed. 507; Sagara v. Chicago, R. I. & P. Ry. Co. (D. Col.) 189 Fed. 220; Hall v. Great Northern Ry. Co., 197 Fed. 488; Jackson v. William Kenefick Co., S. D. N. Y., 233 Fed. 130. These cases follow the analogy of Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264. See, also, Petrocokino v. Stuart, Fed. Cas. No. 11,041; Matter of Tobin, 214 U. S. 506, 53 L. ed. 1061. Contra, Uhle v. Burn

ham (S. D. N. Y.), 42 Fed. 1 (residence not shown); Stalker v. Pullman's Palace Car Co. (S. D. Cal.), 81 Fed. 989 (residence not shown).

8 Harold v. Iron Silver Min. Co. (D. Col.), 33 Fed. 529; Mahopoulus v. Chicago, R. I. & Pac. Ry. Co. (W. D. Mo.), 167 Fed. 165; Bagenas v. Southern Pacific Co. (N. D. Cal.), 180 Fed. 887; Hall v. Great Northern Ry. Co. (D. Montana), 197 Fed. 448; Ivanoff v. Mechanical Rubber Co., 232 Fed. 173. Contra, Schnerb & Wegimont v. The Holt Mfg. Co., N. Y. L. J., May, 1920; Gy. Tr. Co. v. McCabe, 250 Fed. 699; Matarazzo v. Hustis, 256 Fed. 882.

9 H. J. Decker, Jr., & Co. V. Southern Ry. Co., 189 Fed. 224.

10 Mossman v. Higginson, 4 Dallas, 12, 1 L. ed. 720; Montalet v. Murray, 4 Cranch, 46, 2 L. ed. 545; King v. Cornell, 106 U. S. 395, 27 L. ed. 60; Walton v. McNeil, Fed. Cas. No. 17,134; Prentiss v. Brennan, Fed. Cas. No. 11,385 (2 Blatchf. 162); Rateau v. Bernard,