state in the federal court? This is clearly the intent of the first clause, and could it have been the intent, of congress to confer this right upon banks in the first clause of the section, and then in 'the latter clause to take it away? It is a fundamental rule of construction that, if possible, all portions of the act shall be given force and effect, and one part shall not be so construed as to nullify other portions of the act, unless it clearly appears that such was ,the ltlgislativ'e intent. While the language used in the 'second clause is' not happily chosen for the purpose, yet it seems reasonably clear that it was not the intent to nullify one clause by the other, but to secure the general purpose of the section by further declaring thll.t the federal courts should have no other or different jurisdiction in suits brought by or against national banks than they would have in Cilse thegi-ven suits between individual citizens. If, according to the literal construction sought to be put upon the last clause of the section, national banks cannot sue or be sued in the federal courts, except in ,involving a question arising under the constitution or laws of the United States, then the enactment of the first clause was wholly superfluous; for, if jurisdiction exists only when a federal question is involved, then it is immaterial whether the bank is or is not to be deemed a citizen olthe state of its location. To give any force, therefore, to the first clause, it must be held'that.it was the legislative intent by the first clause to place nfLtional banks on tbe footing with.corporations created un-, der state laws, and by the second clause to negative the claim that might be made to federal jurisdiction by reason of the fact that national banks are created under a law of congress. ,Thus construed, force is given to both parts ofthe section. If this is not the construction, then we would be forced to the conclusion that congress intended to deprive national banks of rights enjoyed by the individual citizens and by corporations created under the laws of the states. The conclusion reached is that the court hasjurisdiction,and the motion to dismiss must be overruled.
at fl. WEBSS
(t1CrcuuCwt1, D. NebTas'ka. December 98, 1889.)
C.&:vs:lut":--RIGHT''1'O.REHOVB. . On' appeal by a tax-payer to the district court from an of a claim by ,he county supervisors, as provided by compo Bt. Neb. p. 855, S 1010 the appellee, being the party wM 'is bound to ,establish hilclalm, must be regarded as plaintl1f,and... Buch, has no rig.ht of removal to the federal court On &000.unt of looal pre'udice, uader the. act 'of March 8, :iSS7, whioh glv. auoh right. to the defendallt. 01Ul.
Mason4eWhedon, for plaintiffs. G. M. Lambertson, for defendants.
II. 'single:question. The facts are these ; The petitioners, under con-
J.. This case is before me on motion to remand. I notice
TULLCiex: p. WEB$TEROOtJNTY'.
tract with the county of Webster, constructed a bridge over the lican river. When the work was'done they presentetl a bill to the county supervisors, which account was audited and allowed. Under the peculiar provisions of the Nebraskastatlltes, any tax-payer, by giving bond, can appeal to the district court from such allowance, and one James}.ie:Neny, ,upder this statute, so appealed. After the case was docketed in' that court, these petitioners filed a petition and bondror removal to the federal court, on the ground of local prejudice. Now,theac;lt of Maxch 3, 1887, which was in force at the time, gives the right of removal to the: defendant only; and that the petitioners were plaintiffs in faqt as well as plaintiffs in form there can be no doubt. The sections ofthe statute referring to this matter are found on page 293 of the Compiled Statutes of Nebraska, andol1e of them reads as follows: "The clerk of the board, upon such appeal being taken, and being paid the proper fees therefor, shall make out a complete transcript of the procee"ings of the board to the matter of their decision thereon, and shall deliver the same to the district court; and such appeal shall be entered, tried, and determined the same as appeals from justice courts, and costs shall be, awarded thereon bi)ike manner." Section 39. , It will be, perceived that by it appeals are to be entered, tried, and determined as appeals from a justice court; and from page 855 and section 1010, same \;olume, we find the rule thus given as to appeals from justices' courts. ' "The plaintiff in the court below shall be plaintiff in the district court, and the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in the said court." In the proceeding before the county supervisors the petitioners were the actors,-theparties who were bound to establish their claim. They were the plaintiffs. So, when the case comes to the district court for trial they are still the actors. On them rests the burden. They must prove their claim; and, failing 80 to do, their case will be dismissed. In the petition filed in the district court the petitioners style themselves plaintiffs. Their counsel sign their names as attorneys for "plaintiffs." The papers are entitled "A. J. Tullock & CO. YS. The County of Webster." And even in their brief filed in this motion the petitionerl!i are spoken of as the plaintiffs. So they are in form the plaintiffs, and so treated through all the proceedings; and they are in fact the plaintiffs, on whom the burden of the case rests. Hence, under the statutes, they have no right of removal, and the motion to remand must be sustained.
(t)trouit Oourt, N. D. lotoa, W. D. December 10, 1889.)
RBMOVAL OJ' CAUSES-SEPARABLE CONTROVERSY.
In an action by resident tax-payers against county o:ll3.cials and bondholders, one of whom isa non-resident, to restrain the collection of a tax levied for the payment. of alleged illegal bonds, and to oancel the bonds, there is no separable controversy with relation to the county o:ll3.cials and bondholders. The citizenship of the county oftlcials will not defeat the right of removal on the part of the non-resident bondholder, as the former must be deemed to be interested on the llame llide of the contl'Oversy with the complainants. Following Harter v. Kernochan,108.U. B. 562·
But the bonds not being all owned by the non-resident defendant, but by several, one or. more of whom were. residents, and the record not showing that the bonds owned by the non-resident belonged to a different issue or series from those owned by resident bondholders, there was not a separable controversy pending between complainants and the non-resident which would authorize a removal of the cause.
In Equity. Bill to restrain collection of taxes. Motion to remand. Kauffman Guernsey and Van Wagner McMillan, for complainants. Hend.er8O'n, Hurd, Daniels & Kiesel, for the Orient Insurance Company. SHffiAS, J In the original bill filed in this cause it is averred that the complainants are residents of Lyon county, Iowa, owning property in .said county, and that they, in common with all other tax-payers in said·county, are interested in the question of the extent of taxation which can be legally imposed upon the taxable property in said county; that the laws of Iowa the county has no authority to create an indebtedness in excess of5 per centum of the assessed valuation of the property in the county; that bonds have been issued largely in excess of this limitation, and tpllt. same are illegal; that the defendants, being the treasurer, 8uditor,and members of the board of supervisors of said county, have levied, and are proceeding to enforce the collection of taxes in excess of the legal rate,' and for the payment of the illegal bonds issued by the county; that the complain8,l1ts, for themselves and on behalf of the other tax-payers of the county, seek to restrain the collection ofsaid taxes, and to have the same declared void; and to that end they pray an injunction against said county officials. Service of the original notice was had upon the countytreasnrer, and at the ensuing term of the state court a default WE.';;' entered against him, and a decree for an injunction as prayed for. Subsequently an amendment to the bill was filed, making several of the bondholders defendants, and praying that the bonds held by them be declared void, and canceled. The Orient Fire Insurance Company, a Connecticut corporation,one of the defendants to the amended bill, filed its p.etition for the removal of the cause into this court, and the transcript having been filed, the complainants now move for an order remanding the case, on the ground that this court has not jurisdiction. On part of the Orient Company it is claimed that there exists in its favor a separable controversy, and, as