The court will take judicial notice of the fact that a defendant corporation was incorporated by an act of Congress, although the plaintiff has averred that it was incorporated under the State laws.40 Although a complaint by a settler claiming title under the pre-emption laws of the United States against a railroad company stated that defendant claimed under the laws of the Territory of Washington authorizing railroad companies to appropriate land for right of way, it disclosed a cause of action arising under the laws of the United States, so as to authorize a removal from a State court to the Federal court, the court having judicial knowledge that the authority of the Territory to legislate as to the matter in question was derived from the act of Congress, granting to railroad companies the right of way through the public lands of the United States,41 "Resort cannot be had to the expedient of importing into the record the legislation of the State as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision necessarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered. A definite issue. as to the validity of the statute or the possession of the right must be distinctly deducible from the record. "' 42 It has been held that a suit cannot be removed because it was brought in violation of a proclamation of the President not authorized by law.43 In an action for false imprisonment, averments in the declaration that defendants, acting as judges of an election, caused plaintiff's arrest and imprisonment under color of a State law which is repugnant to the Constitution of the United States, are not open to the objection of anticipating the defense for the purpose of showing that a Federal question is involved.44 40 Texas & P. Ry. Co. v. Cody, 166 U. S. 606, 41 L. ed. 1132; Texas & P. Ry. Co. v. Barrett, 166 U. S. 617, 41 L. ed. 1136; Spokane Falls & N. Ry. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79; Scott v. Choctaw, O. & G. R. Co., 112 Fed. 180. See, however, Oregon Short Line & U. No. Ry. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048; cited infra, § 27. Contra, Texas & P. Ry. Co. v. HighFed. Prac. Vol. I—6 tower (Texas), 12 Tex. Civ. App. 41, 33 S. W. 541. 41 Spokane Falls & N. Ry. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79. 42 Powell V. Brunswick County, 150 U. S. 433, 440; Fuller, C. J. 43 Muir v. Louisville & N. R. Co., 247 Fed. 888. 44 Cox v. Gilmer, 88 Fed. 343. Where the facts stated in the plaintiff's petition set forth a cause of action authorized by both an act of Congress and a State statute, although he did not specifically refer to either, it was held that the case might be removed.45 The existence in the case, of other questions than that arising under the Constitution or laws of the United States, does not impair the right or removal.46 It was said: that the clause in the removal act of 1888, authorizing the removal of civil suits arising under the Constitution or laws of the United States, relates only to the entire action and does not permit the removal of a part thereof when the rest is not removable.47 A bill to enjoin the enforcement of a municipal ordinance authorizing a street-railroad company to condemn for its use certain parts of the track of another corporation was entertained by a Circuit Court of the United States upon the ground, that the violation of a previous grant to the latter company, which complainant alleged, impaired the obligation of a contract. It was held that this did not give that court jurisdiction to decide a question arising on a supplemental bill as to the right of condemnation by the former company under its charter, when pursuant to such charter the city had determined, pending the suit, that the streets were not wide enough for two companies to lay tracks side by side; because the matter involved was beyond the scope of the controversy, which gave the court jurisdiction of the case originally.48 Where the bill brings before the court for determination a Federal question not merely colorable, but raised in good faith not merely for the purpose of giving jurisdiction to the District Court of the United States, the court can take jurisdiction and does not lose the same by deciding the case 45 Hall v. Chicago, R. I. & P. Ry. Co., 149 Fed. 654. 46 Connor v. Scott, Fed. Cas. No. 3,119 (4 Dill. 242); Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,827 (6 Blatchf. 362); s. c., Fed. Cas. No. 4,828 (8 Blatchf. 243); Illinois v. Illinois Cent. R. Co., 16 Fed. 881; People v. Sanitary Dist. of Chicago, 98 Fed. 150; Manigault v. S. M. Ward & Co., 123 Fed. 707; Mastin v. Chicago, R. I. & P. Ry. Co., 123 Fed. 827; New Orleans, M. & T. R. 47 Texas v. Day Land & Cattle Co., 49 Fed. 593; Iowa Loan & Trust Co. v. Fairweather, 252 Fed. 605; Chapter XXXII, on Removal of Causes, infra. 48 Mercantile Trust & Deposit Co. v. Collins Park & Belt R. Co., 107 Fed. 762. See August Busch & Co. v. Webb, 122 Fed. 655, 662. upon other points and omitting to decide the Federal questions of deciding them adversely to the party claiming their benefit.49 It has been said, that in such a case the court has no jurisdiction unless these extraneous questions are incidental to the Federal question.50 It was formerly held that, when a case involving several questions has been removed because one of them arises under the Constitution or laws of the United States, after a decision of the court disposing of the Federal question there should be a remand; 51 but that a Federal question, which is not frivolous, cannot be decided upon a motion to remand.52 It has been said: that the nature of the action, and not the character of the defense, constitutes the test of the determina 49 Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep. 451; Ohio River & Western Ry. Co. v. Dittey, 232 U. S. 576; Louisville & Nashville R. R. Co. v. Finn, 235 U. S. 601; Louisville & Nashville R. R. Co. v. Greene, 244 U. S. 522; Omaha H. Ry. Co. v. Cable Tr. Co., 32 Fed. 727; per Brewer, J; s. c., 33 Fed. 689; Nashville, C. & St. L. Ry. Co. v. Taylor, 86 Fed. 168, 178, 188; Louisville Tr. Co. v. Stone, C. C. A., 107 Fed. 305, 309, 310; Bernstein v. Danwitz, 190 Fed. 604; Central R. Co. of New Jersey v. Jersey City, 199 Fed. 237, 246; Michigan Railroad Tax Cases, 138 Fed. 223; Oregon R. & Navigation Co. v. Campbell, 173 Fed. 957; Larabee v. Dolley, 175 Fed. 365; Risley v. City of Utica, 179 Fed. 875; WashingtonOregon Corp. v. City of Chehalis, 202 Fed. 592; Cleveland, C., C. & St. L. Ry. Co. v. Hirsch, C. C. A., 204 Fed. 850; Portland Ry., Light & Power Co. v. City of Portland, 210 Fed. 667. But see Underground Railroad v. City of New York, 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. 494, affirming, s. c., 116 Fed. 952; Mercantile Tr. & Deposit Co. v. Collins Park & Belt R. Co., 107 Fed. 762, 765; People's Gaslight & Coke Co. v. City of Chicago, 114 Fed. 384, holding that where the bill did not show that an ordinance fixing the rate for the price of gas, impaired the obligation of a contract, or took property without due process of law, the court could not consider the question whether the city had the power, under the laws of the State, to enact such an ordinance; Minnesota v. Northern Securities Co., 194 U. S. 48, 48 L. ed. 870; Cf. Penn. Mut. L. I. Co. v. Austin, 168 U. S. 685, 695, 42 L. ed. 626, 630; and infra. The cases where relief against the infringement of rights claimed under a patent, copyright, or registered trade mark have been denied are explained in subsequent sections; infra, §§ 146, 148, 150. As to the rule in patent trade mark and copyright cases, see infra, §§ 146, 148, 150, 363. 50 Tullar & Tullar v. Illinois Cent. R. Co., 213 Fed. 280. 51 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. 401. 52 Lowry v. Chicago, B. & Q. R. Co., 46 Fed. 83. tion whether it arises under the laws of the United States; and that if the case made by the complaint arises under an act of Congress, the right of removal by the defendant is not lost by insufficient denials in the answer,53 or by the interposition of a good defense.54 It has been held: that a Federal court loses jurisdiction of a suit originally brought there, and that the same will be dismissed, upon the defendant's filing a disclaimer of any interest in the matter concerning which the plaintiff claims title under the laws of the United States, and denying that it has made any claim to the same.55 In a suit in a Federal court, raising the question whether the State was attempting to impair the obligation of a contract, a decision that this question was res adjudicata as against the State does not oust the Federal jurisdiction on the theory that it makes the case turn on a question not Federal.56 Where the requisite difference of citizenship did not exist, it was held that the Federal Court could not take jurisdiction of a counterclaim not affecting matters set forth in the bill which might have been the subject of an independent suit and the determination of which did not involve the decision of a federal question.57 § 25. Suits arising under the Constitution of the United States. A suit arises under the Constitution of the United States when the plaintiff's cause of action depends upon the. violation of a right under the same by an individual who does not act under color of any statutory authority; or where the 53 Miller v. Tobin, 18 Fed. 609, 9 Sawyer, 401. 54 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312; Benedict v. City of New York, C. C. A., 247 Fed. 758. 55 Robinson v. Anderson, 121 U. S. 522, 524, 30 L. ed. 1021; Excelsior Wooden Pipe Co. V. Pacific Bridge Co., 185 U. S. 282, 287, 46 L. ed. 910, 913; Boston & M. Consol. C. & S. Min. Co. v. Montana Ore P. Co., 188 U. S. 632, 47 L. ed. 626; Crystal Springs Land & Water Co. v. Los Angeles, 82 Fed. 114. 1 56 Bank of Kentucky v. Stone, 88 Fed. 383. 57 Cleveland Engineering Co. v. Galion D. M. Truck Co., 243 Fed. 405. $ 25. 1 An action to recover damages for preventing plaintiff from exercising the right to vote for a member of Congress is one arising under the Constitution of the United States. Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84; Knight v. Shelton, 134 Fed. 423; T. B. Harms & Fran cis, Day & Hunter v. Stern, C. C. A., 229 Fed. 42; Swindell v. Youngs cause of action depends upon the unconstitutionality of an act of Congress; 2 or the repugnancy of a State statute to the Federal Constitution; 3 the repugnancy to the Federal Constitution of a municipal ordinance, or of a resolution of a city council which has the effect of an ordinance of a State municipality,5 when either was passed in accordance with the legal forms 6 and under color of statutory authority, even though the same is not authorized by the statutes of the State,6a or, it has been held, where its validity depends upon a statute, which the defendant contends in good faith to be in violation of the Constitution, and there is ground for a reasonable doubt as to the soundness of the contention; or where complaint shows that the plaintiff's claim would be defeated by a construction of the Federal Constitution, as to which there is room for a reasonable doubt. The pleadings need not state what particular clause of the Constitution is in question. It has been said: that it is not essential to the jurisdic 7 town Sheet & Tube Co., C. C. A., 230 Fed. 438. 2 Patton v. Brady, 184 U. S. 608, 46 L. ed. 713. 3 Covington & L. Turnpike Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560; Green v. Oemler, 151 Fed. 936; Rail & River Coal Co. v. Yaple, 214 Fed. 273; N. W. Halsey & Co. v. Merrick, 228 Fed. 805; Nolen v. Riechman, 225 Fed. 812. 4 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; Cuyahoga River Power Co. v. City of Akron, 240 U. S. 462. 5 Des Moines City Ry. Co. v. Des Moines, 151 Fed. 854. V. 6 Mayor, etc., of Savannah Holst, C. C. A., 132 Fed. 901; reversing 131 Fed. 931; Louisville v. Cumberland Tel. & T. Co., C. C. A., 155 Fed. 725, 12 Ann. Cas. 500; Seattle El. Co. v. Seattle, R. & S. Ry. Co., C. C. A., 185 Fed. 365; City & County of San Francisco v. United Railroads of San Francisco, C. C. A., 190 Fed. 507. 6a Portland Ry., Light & Power Co. v. City of Portland, 210 Fed. 7 Railroad Co. v. Mississippi, 102 U. S. 135, 141, 26 L. ed. 96, 98; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482; Southern Pac. R. R. Co. v. California, 118 U. S. 109, 30 L. ed. 103; Kansas v. Walruff, 26 Fed. 178; Kessinger v. Hinkhouse, 27 Fed. 883; Mahin v. Pfeiffer, 27 Fed. 892; Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497. Contra, Kentucky v. Chicago I. & L. Ry. Co., 123 Fed. 457. To the same effect are: Lemen v. Wagner (Iowa), 68 Iowa 660, 27 N. W. 814; Judge v. Arlen (Iowa), 71 Iowa 186, 32 N. W. 326; Dickinson v. Herb Brewing Co. (Iowa), 73 Iowa 705, 36 N. W. 651; Shear v. Bolinger (Iowa), 74 Iowa 757, 37 N. W. 164. 8 Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497. 9 Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 148. |