722 SMITH '11.
FEDEBALREPORTEB.
CHICAGO, B. & Q. Ry. Co.
(Circuit Oourt, 8. D,loWa, WD. March Term, 1887.) REMOVAL all' CAUSE-REMANn-AsSIGNMENT' 011' CAUSE all' ACTION.
Where a case has been removed, on the petition of defendant, from a state court to a United States court, by reason' of the difference of citizenship of the parties; a motion to remand, on the ground that the cause of action has been assigned to one who is of the same citizenship as. the defendant, cannot be granted when the record simply,shows a motion in the state court, before the' removal of the cause, for le&ve .to substitute a new plaintia, on which motion the court took no action.
At Law. On motion to remand · .AnderBon & Eaton and J. Lyman, fQr plttintiff. Smith for defendant. . 'SnIR-AS, J. At the June term, of of Fremont .county" Iowa" the plaintiff. filed a. petition against . the company, seekjngto recover t1;l.e sum of,$20,OOO for personal injuries received while on a ,train; OIl ,iefen<lant.'s road a passenger. On the first ,day ofJune, 1886,. the.p.efendant tiled l!(petition and bond for removal ot the cause into the fede,ral court, on the ground that J osephine Smithw!l:s, when the suit theIl'was, a citizen of Iowa, and the defendant a CO,rpo.r{l.tion. created u!lder the laws of Illi,. nois. Prior, t9 j:,he filing of motion had: been filed the substitution of one Eugene R. Cox as plaintiff, it being the cause of actioll had been assigned by Josephine Smith to said: Cox; it bei.ng also averred in the motion that he'was a citizen of Illinois. . The record stlJ.tecourt took any action upon the the record now motion fqr leave tD,fiubstitute a new plaintiff, So ,on fil(j in thi,sGpurtis appear change of ,plaintiff has been effected, and .the capse upon the record appears to be ,between and the,.r""ihvay colllpany. IJpon a motion · to remand, the. court must take tI;l.e fa.cta to be as the same are set forth in the for removal, :referency, when ilecessary, to the pleadings to ,a,scertain the character of the action., To justify us in grant. jI).gthe motion to remand, we would, be.compeIled,fu,:hold that the acand the compan;y. ·tionwas not one: between ·Tpeaverments in tAe petition, lor remoyal and the facts appearing on the · face ,(,)f the record no,t sustain us iI:\,sonnding. If it be true, 'as a matter of fact, that the Cl:\use of action had been legally assign'ed to EugClle R. Cox, 's' citizen of Illinois,/before the petition for removal was filed, no reason is now pljr,ceivedwhy such .fact would not defeat the jurisdiction of this ;,buts\ich fact, iftrue, cannot be m!1de to appear upon a motion to remand.. If Ii party desires to controvert the truth of the allegations contained in the petition for removal, he should file a proper plea to the jurisdiction, setting forth
DECKER V.BALTIMORE &: N·.Y. R. CO.
723
the matters of fact upon which he relies, and, upon such a plea, the court can hear and determine the issues of fact thus tendered. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep.799. As the matter is now presented, the motion. to remand must be overruled, an.d it is so ordered. LoVE, J., concurs.
DECKER ". BALTIMORE
& N. Y. R. Co. and others.
CJircuu Go'Urt. 8. D. NetD York. 1887.) CON8TJTUTIOIUL LAW-INTEBSTATE COMMERCE-NAVIGABLE WATEBS-OBSTRtJOTION.
Congress can lawfully confer upon a private corporation the capacity to ocwateR within a state, and appropriate the soil under them, cupy upon acqulriug the rights of the owners, in order to construct a bridge over such waters for the purposes of interstate commerCB, without the CODsent and notwithstanding the protest of the state.
P. B. McLennan, for complainant. W. W. MacFarland, for defendants. WALLACE, J. The complainant is a vessel owner whose business of transportation makes it necessary for him to use the narrow navigable water-way known aR Arthur kill, which constitutes one of the boundaries between the states of New York and New Jersey. He has brought this suit to restrain the defendants from constructing a railroad bridge across these navigable waters, which they propose to build and maintain under claim of authority conferred by the act of congress of June 16, 1886, entitled" An act to authorize the construction of a hridge across the Staten Island Sound, known as Arthur kill, and to establish the same as a post road." Thecase is now here upon the defendants' demurrer to the bill of com.platnt,and upon complainant's motion for an injunction pendente lite. It is not disputed that the complainant has a sufficient standing in a court of equity to challenge the right of the defendants to build the bridge; and the single question to be decided is whether they have a legal right to build the bridge. If they have, it is solely by the efficacy of the act of congress as a 'constitutional exercise of the power to regulate commerce between the several states. The legislature of New Jersey, by an act passed April 6, 1886, has forbidden the erection of anybridge or structure oV'e:r any part of the navigable waters where the tide ebbs and flows, separating the state from other states, without express permission given by the legislature by statute in that behalf. The act was passed after the bi!l,had been introduced in,congross authori:Ging the construction of
In Equity.
Bill for injunction.