MINERAL RANGE H. CO. V. DE'l'ROIT & LAKE SUPERWR COPPER CO.
constitution and laws were to make the consolidated corporation wholly a Louisiana corporation, and thus prevent the removal of suits against it to the circuit courts of the United States, still its rights, powers, privileges, immunities, and franchises must be sought in and be determined by the laws of the United States. 'It may he noticed that so far as this record goes the Texas & Pacific, in coming into Louisiana and acquiring the New .Orleans Pacific, has acted wholly within its charter and powers as derived from congress, and it is not improbable that its acquisition of and consolidation with the New Orleans Pacific may be legal and valid without looking to Louisiana legislation on the subject. And it is proper to say in this opinion that a fair consideration of the constitution and laws of Louisiana bearing on the subject of the consolidation of railroad companies leads to the conclusion that all that the legislator intended by the limitations hertltofore quoted was to secure jurisdiction for the state tribunals sO far as citizenship and domicile are concerned, and not to deprive either of the consolidating corporations of any of their chartered rights and franchises, which rights and franchises might be the sole consideration, on one side or both, of the consolidation. It certainly cannot be considered that the law of 1877, in, providing for the consolidation of a Louisiana railroad company with a connecting company outside of the state, cuntemplated, much less required, that the franchises of the foreign company should be surrendered or abdicated, for such surrender would defeat the very purpose of the consolidation. That the state of Louisiana intended to make the consolidated company waive any rights it might have to remove cases from the state to the United States courts as a condition of the consolidation, does not appear in the constitution or any law, and is not to be presumed, for such condition would be null and void as violating the constitution of the United States. See Railway Co. v. Whitton, 13 Wall. 270; Insunmc6 Co. v. Morse, 20 Wall. 445. The motion to remand is denied·.
R. Co. v.
LAKE SUPERIOR COPPER
(Oircuit Oourt, W. D. Michi,qan.
REMOVAL OF CAUSE -
PROCEEDING TO CONDEMN LAND FOR RAILROAD
A state statute provided that proceedings for the condemnation of land for railway purposes should be instituted in the probate court of the proper county; that the necessity for taking the lands, and their value, should be deby commissioners or a jury selected by such court; and that such proceedings should only be subject to review by the supreme court. Under this statute a railroad company petitioned the probate court for the condem-
,nation of defendant's lands. The defendant answered the petition, and demanded a removal of the case to the federal court. Held, that the case was removable directly from the probate court. 2.
It is no objection to the jurisdiction of the federal court in such cases that it involves the exercise of the right of eminent domain.
On Motion to Remand. On the fourteenth of September, 1885, the Mineral Range Railroad Company filed its petition in the probate court for the county of Houghton for the condemnation of certain lands owned by the defendant in the village of Hancock for the purpose of constructing a branch of its road across these lands from Houghton to Hancock. The defendant shortly thereafter answered the petition, and upon the same day filed its petition in the probate court for the removal of the cause to this court, upon the ground that it was a citizen of the state of Connecticut. The removal was ordered, and a transcript of the record immediately filed in this court. The railroad company thereupon moved for the appointment of three commissioners under the statute, accompanying its motion with an oral motion to remand for want of jurisdiction. W. P. Healy, for the railroad company, petitioner. T. L. Chadbourne, C. B. Grant, and Otto Kirchner, for the copper company. BROWN, J.1 In delivering the opinion of the supreme court in Gaines v. Fuentes, 92 U. S. 10,11:1, Mr. Justice FIELD remarked that the removal act of 1867 covered every possible case involving a controversy between citizens of the state where the suit was brought and citizens of other states, if the matter in dispute, exclusive of costs, exceeded the sum of $500 ; that it mattered not whether the suit was brought in a state court of limited or general jurisdiction. "The only test was, did it involve a controversy between citizens of the state and citizens of other states, and did the matter in dispute exceed a specified amount? And a controversy was involved in the sense of the statute whenever any property or claim of the parties capable of pecuniary estimation was the subject of the litigation, and was presented by the pleadings for judicial determination." That controversies of the general nature of this are "suits of a civil nature at law" was settled in Boom Co. v. Patterson, 98 U. S. 403, which was also a proceeding under a statute of Minnesota for the condemnation of land under the right of eminent domain. There is, however, a difference in the methods of procedure under the two statutes which takes the case under consideration out of the language of the opinion in the Minnesota case, and involves it in a difficulty which was not there presented. In Minnesota the course was for the corporation to apply to the district court of the county for the appointment of commissioners to appraise the value of the land, and take proceedings for its con·
District of Michigan.
MINERAL RANGE R. CO. V. DETROIT & LAKE SUPERIOR COPPER CO.
demnation. If the award of the commissioners was not satisfactory to either party, an appeal might be taken to the district court, where it was entered by the clerk as "a case upon the docket i" the persons claiming interest in the land being designated as plaintiffs, and the company seeking its condemnation as defendant. The court was then required "to proceed to hear and determine such case in the same manner" that other cases were heard and determined, with the aid of a jury, unless a jury was waived. The value of the land being assessed, the amount of the assessment was to be entered as a judgment against the company, subject to a review by the supreme cliurt. A similar question arose in one of the Pacific Railroad Removal Cases, 115 U. S. 1, S. C. 5 Sup. Ct. Rep. 1113, and was held to have beEm answered by the reasoning in the Patterson Case. In this state the act provides that, in case the railroad company is unable to purchase the needed land, it shall present its petItion to the probate court, or the judge thereof, with proof of service of notice to all persons interested, who may show cause against the prayer of the petition and may disprove any of the facts alleged therein. Upon hearing the proofs and allegations of the parties, if no sufficient cause is shown against granting the prayer of the petition, the court or _ judge shall appoint three freeholders as commissioners to determine the necessity for taking the land, and to appraise the damages to be allowed to the owner, provided that either party may demand a jury whose powers shall be the same as those of the commissioners. Upon the report of the commissioners or the jury being filed, the court shall confirm the same, unless for good cause shown by either party, and shall direct to whom the money shall be paid. Within 20 days after the confirmation of the report either party may appeal to the supreme court, specifying the objections to the proceedings, and the supreme court shall pass upon Buch objections only, all other being deemed to have been waived. There is no provision in this act for an appeal to the court from the award of the commissioners, and the forming of an issue to be tried by a jury, as were the cases in Minnesota and Kansas. But if a jury be demanded, the case is at once referred to them, and they proceed to pass both upon the necessity for condemning the lands in question, and upon the amount of compensation to be awarded the owners, acting, as has been held by the supreme court, both as judges of law and of fact, although, by the terms of the act, the judge may attend the jury to decide questions of law and administer oaths to witnesses. In Hess v. Reynolds, 113 U. S. 73, S. C. 5 Sup. Ct. Rep. 377, there was also a provision for an appeal from the allowance of the commissioners appointed by tLe probate court to the circuit court of the county, where an issue was framed for trial by jury. Did the statute for the condemnation of land also provide for an appeal from the probate court to the circuit court, and the framing of an issue there, we should find no difficulty in holding, as was held in that
case and in Boom Co. v. Patterson, that the removal should be had from the circuit court, and not from the probate court. But does the failure of the statute to provide for an appeal from the award of the commissioners to the circuit court, and the framing of an issue there, deprive the case of its removable character? We think not. Had the petition been in the general form contemplated in some cases for the condemnation of all the land within the county needed for the purposes of the railway, making all the owners along the line of its road parties defendant, it might be a serious question whether a single non-resident proprietor whose property was sought to be taken could remove the case, even so far as it respected himself, to this court, although this also seems to be answered in the Pacific Railroad Cases, 115 U. S. 19; S. C. 5 Sup. Ct. Rep. 1113. But we do not find it necessary to determine whether there might not be cases of this description to which the removal acts would not apply. In this case the railroad seeks the condemnation of a single specific parcel owned by the defendant. To its petition the defendant has filed its answer, setting forth its reasons why the prayer of the petition should not be granted. There is here a single, indivisible suit or controYersy to obtain the possession of land in which the railroad company is plaintiff and the copper company is defendant, and the case does not differ essentially from an ordinary action of ejectment, except in the fact that plaintiff offers compensation for the lands it seeks to condemn. Further objection is made to our assumption of jurisdiction, for the reason that it involves the exercise of the right Of eminent domain, which is claimed to be non-judicial in its character, and therefore a special proceeding, to be carried on solely by virtue of the statute, in the courts of the state therein designated. The same position was taken by the landowner in the case above referred to, viz.: that the proceeding to take private property for public use was an exercise by the state of its sovereign right of eminent domain, and with its exercise, the United States, a separate sovereignty, had no right to interfere. The position was said to be a sound one so far as the act appropriating the property was concerned; that when the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. "The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But, notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance." We understand the meaning of this language to be substantially this: That the right of eminent domain, or of appropriating private property to public use, is a sovereign right, vested in the state itself, acting through its legislature; that the state may delegate this right