FEDERAL RE:PORTE'R t
of bne state or country, whether an individual or a corporation, may at the same time be an inhabitant of another state or country, and, as such, subject to be sued in the federal courts.. What I do hold in this case is simply this: that it was not the purpose of the removal act to make the question of residency, if the defendant corporation could acquire a resi· dence here, override that of citizenship. If so, it is inconsistent with all former legislation and the constitution itself, and leads to the absurdity of allowing a citizen temporarily non-resident, and sued in the courts of his own state by a citizen of another· state, to remove the 'case to the federal court, which he could not do if in his own state. Mills v. Newell, 41 Fed. Rep. 529. The motion to·remand this case to the state court must be overruled.
NEW YORK & N. E. R. Co. v. WOODRUFF et al., Commissioners.
(Circuit Oourt, D. Oonneclw\l-t.
May 22, 1&90.)
CIRCUIT COURTS-JURISDICTION-QUESTION PENDING IN SUPREME COuBT.
After mnnaamu8 proceedings had been commenced in a state court, defendant .filed a petition for removal to the circuit court of the United States on the ground that it was a civil suit arising under the constitution of the, United States. The petition was deniea, and the judgment of the lower court was affirmed by the high. est state court. A writ of error was ailowed by the supreme court of the United States. After the decision of the state court, a bill was filed in .the circuit court of the United States to enjoin the enforcement of the peremptory mananmu8 issued by the statl;l court. H,ela, upon demurrel' to the bill, that, since thl;l same questions were before the supreme court as were raised by the bill in the circuit court, a decision bvthe latter was unnecessary, the demurrer 'was overruled pro forma.
In Equity. Demurrer to bill. Edward D. Rohbins and S. E. Baldwin, for plaintiff. Wm. F. Henney and H. C. Robinson, for defendants. SHIPMAN, J. This isa demurrer to a bill in equity of thaNew York
& New England Railroad Company, a Connecticut corporation, against
the members of the commission appointed by the general assembly of said state in the matter of the grade crossing at Asylum street, in the city of Hartford. The bill prays for an injullction to prevent the defendants from taking measures to enforce a peremptory mandamus against said company, for which it was anticipated that application would be made to the superior court for the county of Harttord, and which has since been granted by said court. After the application fol" mandamus had been brought in said state court against the railroad company , and within the time prescribed by the statute of March 3, 1887, said com" pany filed ill said court its petition and bond for a removal of said cause to this court, upon the ground that it was a suit at law of a civil nature, arising under the constitution of the United States. No question of factarisitlg upon said petition, but the questions being exclusively of law; which were apparent upon the recorddhe superior
Y.ORK & N.
court. proceeded to examine and determine the company's right to a removal of the case, decided that such right did not exist.· and, upon further hearing, that a peremptory mandamus should issue. Upon a writ of error to the supreme court of errors that court held that there was no error in the decision of the lower court. 20 Atl. Rep. 17. True and attested copies of the petition for removal and accompanying bond, and of the record prior to the filing of the petition, had been filed at the proper time in this court. No action has been taken thereon. After the decision of the appellate court, this bill for an injunction was brought to this court. It further appears from the papers in the motion for a preliminary injunction that a writ of error from the supreme court of the United States has been aliowed, and lodged with the clerko! the supreme court of errors. The same questions which are raised by this demurrer are before the supreme court, and must be determined by that court upon the writ of error. They are the right to remove the mandamus proceedings to the federal court, and the constitutionality of the state statute. A decision Df these questions by this court is simply nugatory. If the writ of error is prosecuted, they must be heard and decided by the highest tribunal; and an opinion by this court will be, in any event, a useless .and unnecessary contribution to the legal literature upon the subject, and might cause useless expense to the parties. The proper course is to o\'errule the demurrer proforma. . A motion for a preliminary injunction against the members of the ·commission has also been heard. It appears that. since the motion was filed, the superior court has issued a peremptory mandamus, and that a . writ of error to the supreme court of errors has been allowEld by one .of the justices of the supreme court of the United States, who indorses' upon the proceedings that the writ of error is a BUplrrsedeas, and that the bond is to operate as a stay of execution. If any proceedings are taken in the state court against the railroad company, they must be in the nature of an attachment for contempt, which would issue from the superior court. I atn not advised whether the justice who allowed ·the writ of error intended to decide that it was a supersedeas of proceedings in the superior court, as weH as in the supreme court of errors; but I ,do not think that there is such present danger of injury to the COmplainant as to. call upon this court for a preliminary injunction, and it would be. in my opinion, improper for me to assume that there is a· :necessity for interference on my part. The motion is therefore denied.
, GIANT--POWDll:n Co.
(Oircuit Oourt, D. Oregon. June 16, 1890.)
.. ", Tl:ie gElneral phrase in the act of 1885, "any other structure," following, as it does, , a speCUlc li\numeration 'of works declared'to be subject to alien for labor and mate. for theirconstruc;:tion, such8lj a "building," "ditch," "flume," and '''tunpel, "hela to include a railway.
A·,pefson:etltitled to a lien on a railway for materials furnished for its construction mllY, hIs notice of lien, confine his claim to portion or section of the roM in the construction of which .his material was used. Giant-powder furnished by the manufacturer to a contractor for the construction of a railway, and used by the latter in· the progress of such work, is "material, II witliill the purview of the lien law of 1885, for the value of which, such manufactuTerisentitled to a lien on the railway, or luch portion thereof 81 the powder W81 us!l4 intjle ,C9nstruction of.
Oil' RAILROAD SUBJEOT TO LIBK.
,'bi1 the, Oourt.)
Mr. Geor[le H. Williama, for, plaintiff. Mr. L.Ftinn, for defendants.
DEADY, J.' This suit is brought by the Giant-Powder Company, a corporaticm of Cl'Ilifornia, against the Oregon Pacific Railway Company and the Wll)larnet Valley & Coast Railway Company, corporations of Oregon,amlJau}es Searle and.E. B. Deane, doing business under the firm name of Searle &. Deane, ;citizens of Oregon, to enforce a lien for mateof the Wallamet Valley & Coast Railway. rial on a It is alleged ,in the bill that the defendant, the Wallamet Valley & Coast Company, is the, owner of said railway, which extends from Yaquina bay, Or., eastward through Corvallis, into the Cascade mountains. Thatin 1888 and 1889 said company contracted with the defendantthe Oregon PaciiicRailway Company to COllstrtlCt said road eastward Jr.om Albany, Or. That On August 25, 1888, the Oregon Pacific Railway Company contracted with the defendants Searle & Deane to construct the portion of said road commencing at station numbered 2659, plus 78,inMarion county, and extending from there eastward for 15 miles along th,eestablishedroute of samej in which contract it was prc)Vided &. Deane should furnish all the material and labor for such construction. That Searle & Deane commenced work on the road on September 1, 1888, and completed said section thereof, accordand there remained due them ing to the contract, on January 15, and unpaid thereon the sum of $111,393.62. That the plaintiff, between September 26 and December 31, 1888, furnished Searle & Deane "electrical material, powder, fuse, and caps, necessary and proper materials to use in the prosecuiion of said work;" and the said defendants (Searle & Deane) agreed to pay the plaintiff the sum of 87,148.82 therefor; that said material was used by Searle &