influence he will be unable to obtain justice in the state courts; the existence of prejudice and local influence must be alleged as a matter of fact.50 And where the petition is based upon the ground that the petitioner is denied civil rights, it must affirm that he is actually denied such rights, and not merely apprehensive of a subsequent denial.51

The right of removal extends not only to cases where prejudice would affect the jury, but also to cases in which the decisions of the judge as to questions of law or fact may be affected thereby.52

In order that a cause may be removed because of an alleged violation of the fourteenth amendment to the federal constitution, such violation must be the result of the constitution or laws of the state, and not of their administration.53 When the constitution and laws of a state, as interpreted by its highest judicial tribunals, do not stand in the way of enforcing rights secured equally to all citizens of the United States, the possibility that during the trial of a particular case the state court may not protect and enforce the right to equal protection of the laws constitutes no ground for removal. Thus the act of administrative officers in excluding colored persons from juries is not a ground of removal, unless it is shown that such exclusion was under the authority of the state constitution or laws.55

54

§ 1026. Removal where federal question involved. When a question over which the federal courts have jurisdiction forms an ingredient of the original cause, those courts have jurisdiction, although other questions of fact or law may be involved.5 Cases arising under the laws of the United States are such as arise out of federal legislation, whether they constitute the right or privilege, claim, protection, or defense of the party, in whole or in part, by whom they are asserted. The right of removal.

depends not upon the validity, but upon the presentation of a claim involving a substantial controversy under the federal constitution or laws.58 The question whether a case is one for removal is itself a federal question.59

Whenever it is sought to remove a suit on this ground, it must appear from the petition for removal and the pleadings that there is a question actually involved in the suit, depending for its determination upon a correct construction of a law of the United States, and the facts averred in the pleadings or in the petition must show what the question is and how it will arise. The fact must appear by the party's own statement; and a deficiency in his statement, in this respect, cannot be supplied by allegations in the petition for removal or in subsequent pleadings in the case."2 A statement in a complaint merely anticipating a defense will not of itself entitle the defendant to remove the cause." 63

65

61

As illustrations of cases involving federal questions, the following may be noted: A case in which the existence of some title, right, or privilege depends upon the construction of the federal constitution or laws; a case where it is alleged that the courts of one state refuse full faith and credit to the judgments of the courts of another state; a suit in ejectment against a United States officer holding lands in his official capacity; prosecutions against official officers for acts done under color of office; cases arising under the internal revenue laws; an action against a federal marshal for alleged illegal seizure of goods; an ejectment suit in which the authority of the government to grant a patent is questioned.

58 Southern Pacific R. R. Co. v. California, 118 U. S. 112, 6 Sup. Ct. 993, 30 L. Ed. 103.

59 Railroad Co. v. Koontz, 104 U. S. 15, 26 L. Ed. 643; Mitchell v. Clark, 110 U. S. 645, 4 Sup. Ct. 170, 28 L. Ed. 279.

60 Walker v. Richards, 55 Fed. 129; State v. Southern Pacific Co., 23 Or. 424, 31 Pac. 960; Carson v. Dunham, 121 U. S. 426, 7 Sup. Ct. 1030, 30 L. Ed. 992.

61 Caples v. Texas etc. R. R. Co., 67 Fed. 9; Haggin v. Lewis, 66 Fed. 199.

62 Postal Tel. Cable Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. 192, 39 L. Ed. 231; Wichita Nat. Bank v. Smith, 72 Fed. 570, 19 C. C. A. 42;

68

68a

California Oil Co. v. Miller, 96 Fed. 18.

63 Kansas v. Atchison etc. R. R. Co., 77 Fed. 341.

64 Southern Pacific R. R. Co. v. California, 118 U. S. 112, 6 Sup. Ct. 993, 30 L. Ed. 103.

65 Dupasseur v. Rochereau, 21 Wall. 134, 22 L. Ed. 588.

66 Brown v. Huger, 21 How. 308, 16. L. Ed. 125.

67 Texas v. Davis, 100 U. S. 271, 25 L. Ed. 648; Cleveland etc. Ry. Co. v. McClung, 119 U. S. 461, 7 Sup. Ct. 262, 30 L. Ed. 465.

68 Philadelphia v. Collector, 5 Wall. 730, 18 L. Ed. 614.

68a Feibelman v. Packard, 109 U. S. 424, 3 Sup. Ct. 289, 27 L. Ed. 984.

69

Corporations of the United States organized under acts of Congress are entitled to remove to the federal courts suits against them commenced in the state courts, as arising under the laws of the United States; and a federal corporation defendant is entitled to removal, notwithstanding it is described in the complaint as a state corporation.70 But this rule does not apply to corporations organized under the laws of a territory, and upon which, after their organization, certain rights and privileges are conferred by an act of Congress; nor is a suit by or against a national bank necessarily removable to a federal court since the act of 1885.72

71

73

§ 1027. Right of removal-How determined. The right to remove a cause depends upon the case disclosed by the pleadings as they stand when the petition for removal is filed. Whether there is a separable controversy warranting a removal, is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of allegations in the petition or in the affidavits, unless the petitioner both alleges and proves that defendants were wrongfully united for the purpose of preventing removal. And the right must be shown by the statement of the facts in legal and logical form, such as is required by good pleading. The want of a showing sufficient to justify removal cannot be supplied by the petition for removal or the subsequent pleadings; and whether a party claims a right under the federal constitution or laws, is

69 Pacific R. R. Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; Butler v. National Home for Soldiers, 144 U. S. 64, 12 Sup. Ct. 581, 36 L. Ed. 346; Texas etc. Ry. v. Cox, 145 U. S. 601, 12 Sup. Ct. 905, 36 L. Ed. 829; Supreme Lodge v. Hill, 76 Fed. 471, 22 C. C. A. 280; United States etc. Co. v. Gallegos, 89 Fed. 771, 32 C. C. A. 470.

70 Texas etc. Ry. v. Cody, 166 U. S. 608, 17 Sup. Ct. 703, 41 L. Ed. 1132. 71 Conlon v. Oregon etc. Ry. Co., 21 Or. 462, 28 Pac. 501, 23 Or. 500, 32 Pac. 397.

72 Leather etc. Bank v. Cooper, 120 U. S. 780, 7 Sup. Ct. 777, 30 L. Ed. 816; Ex parte Jones, 164 U. S. 692, 17 Sup. Ct. 222, 41 L. Ed. 601.

75

76

78 Barney v. Latham, 103 U. S. 216, 26 L. Ed. 514; Graves v. Corbin, 132 U. S. 585, 10 Sup. Ct. 196, 33 L. Ed. 462; Merchants' Cotton Press etc. Co. v. Insurance Co., 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195.

74 Louisville etc. R. R. v. Wangelin, 132 U. S. 601, 10 Sup. Ct. 203, 33 L. Ed. 474; Wilson v. Oswego Township, 151 U. S. 66, 14 Sup. Ct. 56, 38 L. Ed. 70; Loving v. Arnold, 84 Fed. 218.

75 Gibbs v. Crandall, 120 U. S. 108, 7 Sup. Ct. 497, 30 L. Ed. 490.

76 Chappell v. Waterworth, 155 U. S. 107, 15 Sup. Ct. 34, 39 L. Ed. 85; Neel v. Pennsylvania Co., 157 U. S. 154, 15 Sup. Ct. 589, 39 L. Ed. 654;

to be ascertained by legal construction of his own allegations, and not by the effect attributed to them by the adverse party."

79

§ 1028. Waiver of right to remove.- A party may waive his right to have a cause removed to a federal court.78 The right of removal is inconsistent with the voluntary submission to a state court's jurisdiction; and one making himself a party to the "same suit" voluntarily submits himself to the obstacles in his way of removing the suit.80 But a party who, after having failed in his effort to obtain a removal, is forced to trial and defends in a state court under protest, loses none of his rights by so defending. Nor does a general appearance of a defendant in a state court operate as a waiver of his right to remove the cause.82 And where a petition for removal is filed before the time fixed by the statute or the rules of court for the filing of an answer, the petitioner's appearance and hearing of a preliminary motion regarding an injunction does not constitute a waiver.83

81

Parties not petitioning for removal cannot assign error for a denial of the right to others.8

84

§ 1029. Petition for removal.-A petition for removal is a pleading, and should state facts, not legal conclusions; hence a petition setting forth that rights under an act of Congress are involved, without pleading facts to enable the court to determine whether the construction of an act of Congress is involved, is insufficient.85 Such a petition is a matter of record proper.80 The necessary facts for removal appearing in the pleadings need not be restated in the petition, but facts not so appearing must be supplied. The court will not judicially notice facts which might

87

Oregon etc. Ry. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048.

77 Central R. R. Co. v. Mills, 113 U. S. 257, 5 Sup. Ct. 456, 28 L. Ed. 948.

78 Insurance Co. v. Morse, 20 Wall. 451, 22 L. Ed. 365.

79 Manning v. Amy, 140 U. S. 141, 11 Sup. Ct. 757, 35 L. Ed. 386.

80 Brooks v. Clark, 119 U. S. 513, 7 Sup. Ct. 301, 30 L. Ed. 482.

81 Insurance Co. v. Dunn, 19 Wall. 224, 22 L. Ed. 68; Railroad Co. v. Mississippi, 102 U. S. 141, 26 L. Ed. 96; Powers v. Chesapeake R. R. Co.,

169 U. S. 102, 18 Sup. Ct. 264, 42 L. Ed. 673.

82 Groton Bridge Co. v. American Bridge Co., 137 Fed. 284.

83 Cella v. Brown, 136 Fed. 439; Atlanta etc. Ry. Co. v. Southern Ry. Co., 131 Fed. 657, 66 C. C. A. 601.

84 Merchants' Cotton Press etc. Co. v. Insurance Co., 151 U. S. 387, 38 L. Ed. 195, 14 Sup. Ct. 367.

85 Gold Washing etc. Co. v. Keyes, 96 U. S. 202, 24 L. Ed. 656.

86 McDonnell v. Jordon, 178 U. S. 234, 20 Sup. Ct. 886, 44 L. Ed. 1048.

87 Gold Washing etc. Co. v. Keyes, 96 U. S. 204, 24 L. Ed. 656.

give jurisdiction on removal, if the plaintiff has not relied upon them in his pleading.88

The filing of a petition for removal of a cause does not amount to a general appearance, but to a special appearance only.89

The allowance of an amendment to a petition for removal is a matter of defense."

91

§ 1030. Record to show jurisdiction.-Where the record from a state court contains only a fragment of the cause, unintelligible, except by reference to other matters or verbal explanation, this is fatal to the right to removal. But whether the petition for removal avers the jurisdictional facts or not is immaterial, providing such facts are shown to exist by any part of the record.92 "Citizenship" and "residence" are not synonymous terms, and an allegation that the petitioners are residents in another state is not sufficient.93 The citizenship of parties which determines the right of removal is personal citizenship, and this must be shown by the petition." So averments in the removal petition that a firm is doing business in, or that the party is a corporation of, another state are insufficient.95 Where the petition for removal shows that the defendant is a corporation created in another state, it need not allege that it is a non-resident of the state in which the suit is brought, and of which the plaintiff is a citizen. So, also, the allegation that the defendant is a company duly chartered and incorporated under the laws of Great Britain is a sufficient statement of the citizenship of such corporation, without a negative allegation that it is not a citizen of the state in which the suit is brought.97

96

Diversity of citizenship must be alleged to be existing at the commencement of the action and also at the time of removal;

88 Mountain View etc. Co. v. McFadden, 180 U. S. 535, 21 Sup. Ct. 488, 45 L. Ed. 656; Arkansas v. Kansas etc. Co., 183 U. S. 189, 22 Sup. Ct. 47, 46 L. Ed. 144.

89 Wabash etc. Co. v. Brow, 164 U. S. 279, 17 Sup. Ct. 126, 41 L. Ed. 431; National Accident Soc. v. Spiro, 164 U. S. 281, 17 Sup. Ct. 996, 41 L. Ed. 435. 90 Ayers v. Watson, 137 U. S. 585, 11 Sup. Ct. 201, 34 L. Ed. 803.

91 West v. Aurora City, 6 Wall. 142, 18 L. Ed. 819.

92 Bondurant v. Watson, 103 U. S. 285, 26 L. Ed. 447.

93 Parker v. Overman, 18 How. 141, 15 L. Ed. 318; Pennsylvania Co. v. Bender, 148 U. S. 257, 13 Sup. Ct. 591, 37 L. Ed. 441.

94 Amory v. Amory, 95 U. S. 187, 24 L. Ed. 428.

95 Grace v. American etc. Ins. Co., 109 U. S. 285, 3 Sup. Ct. 207, 27 L. Ed. 932.

96 Shattuck v North British etc. Ins. Co., 58 Fed. 609, 7 C. C. A. 386; Wilcox etc. Co. v. Phoenix Ins. Co., 60 Fed. 929.

97 Robertson v. Scottish etc. Ins. Co., 68 Fed. 173.