of cases upon such grounds. It is to be seen from the allegations in this bill that the prime object of the bill is to foreclose the mortgage and subject the property to sale. The collection of the deficiency is a mere incident. It may turn out, for aught that can now be seen, that there never will be any personal liability enforced in this or any other suit against the party personally liable. But however that may be, and having regard to the objects and purposes of this suit, the claim of the bill, and the relief which is expected to be realized, this controversy is not a separable one from that of the other defendants. The test in these cases is not whether the relief which a complainant or plaintiff (as the case may be) shall be able to reach and gain against one defendant is different from that which he may obtain against another defendant. That is not the test. The test is whether the controversies are so blended and commingled as substantially to involve the same inquiries and conclusions. Now, this mortgage sought to be foreclosed was taken to secure the payment of this very debt. The existence of that debt, and the amount of it, are prime questions to be determined in the case, and lie at the very foundation of the relief; that is to say, the enforcement of the lien, which is the prayer of the bill. This controversy is not a separable one, and not distinguishable from that of the other branches of the controversy or other phases of the same controversy in regard to these other defendants. For these reasons, and confining myself solely to the ground which has been most fully argued, whether this controversy is a separable one from that of the other defendants, I hold that the motion must prevail, and an order may be entered in accordaillce with this holding.
POOLEY v. LUCO et al.
(District Court, S. D. California. August 81, 1896.)
FEDERAL COURTS-JURISDICTION-SUITS AGAINST CONSULS.
The constitutional provision giving to the supreme court "original jurisdiction" in all cases affecting ambassadors, other public ministers, and consuls (article 3, § 2) does not make that jurisdiction exclusive; and Rev. St. § 687, which provides that such jurisdiction shall not be exclusive in suits to which a consul is a party, and section 563, sUbd. 17, which confers upon the district court jurisdiction in the latter class of suits, are constitutional and valid. The federal district courts have jurisdiction in equity (Rev. St. § 563, Ilubd. 17, also Id. §§ 574, 631), and may take cognizance of a suit to foreclose a mortgage on land situated in their districts.
2. SAME-DISTRICT COURTS-EQUITY JURISDICTION.
This was a foreclosure suit brought by O. Pooley against Juan M. Luco and others. 'Ihe cause was heard on demurrer to the bill for want of jurisdiction. Allen & Flint, for complainant. Cole & Cole, for defendants.
POOLEY V. LUCO.
WELLBORN, District Judge. This is a suit to foreclose a mortgage on lands situated in San Diego county, Southern district of California. One of the defendants, Juan M. Luco, is consul general of the republic of Chile, duly accredited to the government of the United States, and resident at San Francisco, Cal. Said defendant, by demurrer, challenges the jurisdiction of the court, and, in his brief, urges two grounds: 1. That so much of section 687 of the Revised Statutes of the United States as provides that the jurisdiction of the supreme court, in suits to which a consul is a party, shall not be exclusive, is in violation of the first clause of the second paragraph of section 2, art. 3, of the constitution of the United States, said paragraph being as follows:
"In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make."
Defendant's argument is that the word "original," in this paragraph, is synonymous with "exclusive," and therefore congress has no power to confer upon any other than the supreme court jurisdiction over a suit to which a consul is a party. This argument, while not so expressed in defendant's brief, also applies, of course, to subdivision 17 of section 563 of the Revised Statute!' of the United States, which subdivision provides that the district courts shall have jurisdiction, with an exception not material here, "of all suits against consuls." Said subdivision, and the above-mentioned provision of section 687, are, in my opinion, constitutional. The significance which defendant ascribes to the word "original" is not in harmony with its commonly accepted meaning, nor is it warranted by the context. In the paragraph of the constitution above quoted, the word "original" is used solely in contradistinction to the word "appellate," and this use indicates that the former of said words was not intended to make exclusive the jurisdiction which it otherwise qualifies. 2. Defendant contends in the next place that the district courts of the United States have no equity jurisdiction, and therefore cannot entertain suits of this character. To this I cannot agree. If there were no legislation by congress on the subject other than subdivision 17 of section 563 of the Revised Statutes, I should hold that subdivision amply sufficient to confer equity jurisdiction on the district courts in the cases therein mentioned. Complainant, however, cites other constitutional provisions and acts of congress which clearly and indisputably recognize equity powers in the district courts. Sections 1 and 2 of article 3 of the constitution provide that the judicial power of the United States shall be vested in one supreme court, and such inferior courts as congress may establish, and that such judicial power shall extend to all cases in law and equity. The sections of the Revised Statutes cited by complainant in this connection are 574 and 631. The first of these sections provides that "the district courts, as courts of admiralty and as courts of equity, so far as equity jurisdiction has been conferred upon them," etc. Section 631
i6 FEDERAL REPORTER.
provides that "from all final decrees of a district court in causes of equity or of admiralty and maritime jurisdiction," etc. Defendant's argument, however, need not be further pursued, since the question of jurisdiction in suits like the present has been authoritatively determined favorably to the complainant by the supreme court of the United States. Ex parte Baiz, 135 U. S. 403-432, 10 Sup. Ct. 854. See, also, Froment v. Duclos, 30 Fed. 385. I am clearly of the opinion that this court has jurisdiction of the present suit. The demurrer will be overruled, and defendant assigned to answer the bill within two weeks after the next rule day.
CRYSTAL SPRINGS LAND & WATER CO. et 31. v. CITY OF LOS ANGELES (Circuit Court, S. D. California. August 3, 18lJ6.) No. 583.
JURISDICTION-FEDERAL COURTS-MEXICAN GRANTS.
The fact that both parties claim under Mexican grants, confirmed and patented by the United States, In accordance with the provision of the treaty of Guadalupe Hidalgo, protecting all eXisting property rights, does not render the suit one arising under that treaty, so as to confer jurisdiction on a federal court.
In order to confer jurisdiction of a suit as arising under the United States constitution, the pleadings need not show what particular clause of the constitution Is in question.
SAME-DuE PROCESS OF LAW.
Whenever the right or title of either party is grounded upon state legislation which undertakes to transfer to him property belonging to the other, without due process of law, there Is a controversy as to the operation and efl'ect of the constitution, to which the federal jurisdiction attaches. An averment by plaintifl' that it "is the owner In fee of the said" property in suit, "and by and through its tenants and agents is in possession thereof," if not qualified by subsequent averments, sufficiently alleges plaintifl"s ownership upon an issue as to whether property of plaintifl' Is claimed by defendant under a legislative act, which involves the taking of plaintifl"s property without due process of law.
Bill by the Crystal Springs Land & Water Company and S. G. Murphy against the city of Los Angeles. J. S. Chapman and White & Monroe, for complainants. Lee & Scott, C. McFarland, and W. E. Dunn, for defendant. WELLBORN, District Judge. This is a suit to quiet title to certain waters, water rights, and the works therewith connected, hereinafter mentioned. Defendant demurs to the bill, for lack of jurisdiction in the court, and because complainants do not show themselves entitled to equitable or any relief. The briefs of both parties are devoted mainly to the former ground of demurrer, and the same observation will apply to this opinion. The bill is, necessarily, somewhat voluminous, but the material facts therein al-