SOUTHERN PACIFIC RAILROAD COMPANY v.

CALIFORNIA.

118 United States, 109. 1886.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a suit brought by the State of California, in one of its own courts, against the Southern Pacific Railroad Company to recover $31,470.58 claimed to be due for taxes. The railroad company answered the complaint, setting up, among others, the following defences:

1. That under and by virtue of the acts of Congress of July 27, 1866, 14 Stat. 292, ch. 278; March 3, 1871, 16 Stat. 573, ch. 122; and May 2, 1872, 17 Stat. 59, ch. 132, the defendant "became, and ever since has been, a Federal corporation, and has held its franchises and exercised all its corporate powers under the government of the United States; " or, "if, by virtue of the several acts of Congress. . . referred to, it did not become a Federal corporation, yet it holds under the government of the United States all the corporate powers and franchise granted to it by the said several Acts of Congress as the trustee for the government, and for the governmental uses and purposes specified in said acts;""that the government of the United States has never given to the State of California the right to lay any tax upon the franchise, existence, or operations of defendant;" that the "value of all the franchises held and corporate powers exercised by defendant under said acts of Congress were included in the valuation of the property of the company upon which the taxes sued for were assessed, and that by reason of the premises the taxes are illegal and void.

2. That the property of the company for which the taxes sued for were levied was, and is, encumbered by a mortgage securing an indebtedness of the railroad company exceeding $3,000 a mile, and that it was valued for taxation without deduction on account of such encumbrance, because such was the requirement of the statute with respect to railroad corporations owning railroads within the State, and operated in more than one county, and this corporation was, and is, of that class.

3. That the statute under which the taxes were levied is repugnant to Art. XIV. of the Amendments of the Constitution of the United States, inasmuch as it deprives railroad corporations of the State operated in more than one county of the equal protection of the laws, 1, by providing that the property of such corporations shall be valued for taxation to them without deduction on account of mortgage encumbrances, while the mortgaged property of other corporations and of natural persons is taxed to its owner only on its value after the value of the mortgage has been deducted; and, 2, by failing to provide

a tribunal for the correction of errors in the valuation of the property of such railroad corporations for taxation, when such a tribunal is provided for all other corporations and for natural persons.

4. That the statute is still further repugnant to the same amendment, because it deprives such corporations of their property without due process of law, there being no provision for notice to them of a time, place, or tribunal for a hearing in defence of their rights in the valuation of their property for taxation.

Upon the filing of this answer, the railroad company presented its petition, accompanied with the necessary security, for the removal of the suit to the Circuit Court of the United States for the District of California, under the act of March 3, 1875, 18 Stat. 470, ch. 137, on the ground that the action "is a suit at law of a civil nature and arising under the Constitution and laws of the United States." This petition was filed in time. The State court proceeded with the suit notwithstanding the petition, and gave judgment against the railroad company for the full amount of the tax and the statutory penalty. From this judgment the corporation appealed to the Supreme Court, where the only question presented for decision was "whether the Federal Constitution and the act of Congress authorized a removal of an action from a State to a Federal court brought by a State to re cover taxes levied under its laws on the property of a being created by its power in one of its own courts." This question was decided against the corporation, and the judgment of the court below affirmed. To this judgment of affirmance the present writ of error was brought on the allowance of the Chief Justice of the Supreme Court of the State.

In Railroad Co. v. Mississippi, 102 U. S. 135, 141, it was decided that a suit brought by a State in one of its own courts against a corporation of its own creation can be removed to the Circuit Court of the United States, under the act of March 3, 1875, if it is a suit arising under the Constitution or laws of the United States, although it may involve questions other than those which depend on the Constitution and laws. The case of Ames v. Kansas, 111 U. S. 449, is to the same effect; and in Starin v. New York, 115 U. S. 248, 257, it was stated, as the effect of all the authorities on the subject, that if, from the questions involved in a suit, "it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not."

Applying these rules, which must now be considered as settled, to the present case, it is apparent that the court below erred in deciding that the suit was not removable; for it distinctly appears that the right of the State to recover was made by the pleadings to depend,

1, on the power of the State to tax the franchises of the corporation derived from the acts of Congress, which were specially referred to, as well as the property used in connection therewith, and, 2, on the effect of Art. XIV. of the Amendments of the Constitution on the validity of the statutes under which the taxes sued for were levied. The first depended on the construction of the acts of Congress, and the second on the construction of the constitutional amendment. If decided in one way the State might recover, if in another it would be defeated, at least in part. The right of removal does not depend upon the validity of the claim set up under the Constitution or laws. It is enough if the claim involves a real and substantial dispute or controversy in the suit. In this case there can be no doubt about that. The Circuit Court of the United States for the district of California has already decided more than once, in other cases involving precisely the same questions, that the statute on which the recovery depends was unconstitutional and void, and some of these cases are now pending here on writs of error. Already much time has been devoted in this court to their argument under special assignments.

The judgment of the Supreme Court is reversed and the cause remanded, with directions that it be sent back to the Superior Court of Los Angeles County for removal to the Circuit Court of the United States, in accordance with the prayer of the petition filed for that purpose.

Judgment reversed.

BOCK v. PERKINS.

139 United States, 628. 1891.

MR. JUSTICE HARLAN delivered the opinion of the court. This action involves the title to a certain stock of goods seized under attachments sued out against the property of H. P. Lane from the Circuit Court of the United States for the Northern District of Iowa, and directed to the marshal of that district for execution. The goods, when seized, were in the possession of the plaintiff in error, who claimed the right to hold them under an assignment made to him by Lane before the attachments were issued. Bock seeks to recover from Perkins, the marshal, and from Thrift and Hopkins, his deputies. damages in the sum of ten thousand dollars for their seizure. The defence was, that the goods were the property of Lane at the time of the seizure, and, therefore, were liable to be taken under the attachments. Upon the petition of the defendants, accompanied by a proper bond, and an affidavit setting forth the nature of the defence, the case was removed into the court below for trial as one arising under the laws of the United States. The plaintiff moved to remand it to the State court. The motion was denied, and by direction of

the court the jury returned a verdict for the defendants. A judgment in their favor was accordingly entered. Bock v. Perkins, 28 Fed. Rep. 123.

The court below properly retained the case for trial. Every marshal of the United States, as well as his deputy, must take an oath or affirmation that he will faithfully execute all lawful precepts directed to him, and in all things well and truly perform the duties of his office. The marshal must also give bond, with sureties, for the faithful performance of the duties of his office by himself and deputies. And marshals and their deputies have, in the respective States, the same powers in executing the laws of the United States as sheriffs and their deputies have in executing the laws of such States. Rev. Stat. §§ 782, 783, 788. A case, therefore, depending upon the inquiry whether a marshal or his deputy has rightfully executed a lawful precept directed to the former from a court of the United States, is one arising under the laws of the United States; for, as this court has said, "cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defence of the party, in whole or in part, by whom they are asserted." Tennessee v. Davis, 100 U. S. 257, 264; Railroad Co. v. Mississippi, 102 U. S. 135, 141. If the goods in question, when seized, were the property of Lane, the marshal and his deputies were in the discharge of duties imposed upon them by the laws of the United States; and for any failure in that regard he would be liable to suit by any one thereby injured. Rev. Stat. § 784. This case was, 1 therefore, one arising under the laws of the United States, and removable from the State court. Feibelman v. Packard, 109 U. S. 421, 423; Bachrack v. Norton, 132 U. S. 337; Reagan v. Aiken, [138 U. S. 109]; Houser v. Clayton, 3 Woods, 273; Ellis v. Norton, 16 Fed. Rep. 4.

No different doctrine was announced in Buck v. Colbath, 3 Wall. 334. On the contrary, that case sustains the view we have just expressed. Colbath sued Buck in a State court in trespass for taking his goods, the latter pleading simply that he was marshal of the United States, and had seized the goods under an attachment against the property of certain parties named therein, but not averring that the goods belonged to the defendants named in the writ. This court, upon error to the highest court of the State, held that the marshal was guilty of trespass in levying upon the property of one against whom the writ did not run, and could be sued therefor in a State court the mere fact that the writ issued from a Federal court constituting no defence. The judgment in that case against the marshal was reviewed here under the act of Congress authorizing such review in cases where a party specially claimed the protection of an authority exercised under the United States, and the decision withheld the protection so claimed. The decision sustains the proposition that

where a marshal, being sued in trespass in a State court for taking property under a writ of attachment to him directed, defends upon the ground that the property attached belonged to the defendant named in the writ, the case is one arising under the laws of the United States, and therefore removable.

[The merits of the case are then considered and the judgment is affirmed.]

b. Cases affecting Ambassadors, other Public Ministers, and Consuls.

BÖRS v. PRESTON.

111 United States, 252. 1884.

THIS action was brought in the Circuit Court of the United States for the Southern District of New York. The plaintiff, Preston, is a citizen of that State, while the defendant is the consul at the port of New York, for the Kingdoms of Norway and Sweden.

The object of the action is to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of merchandise. The answer denies the material allegations of the complaint, and, in addition, by way of counterclaim, asks judgment against the plaintiff for certain sums. To the counterclaim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judg ment was entered against the defendant. The defendant sued out this writ of error. The following assignments of error are found in the record:

"First assignment of error. That the plaintiff in error being before, at the time of the commencement of this suit, and ever since Consul of the Kingdoms of Norway and Sweden, he ought not, according to the Constitution and laws of the United States, to have been impleaded in the Circuit Court, but in the District Court of the United States for the Southern District of New York, or in some of the District Courts, and that the Circuit Court had not jurisdiction of this cause, and should have directed a verdict for said defendant.

"Second assignment of error. That judgment was given for the defendant in error against the plaintiff in error, when by the laws of the United States the judgment ought to have been given for the plaintiff in error against the defendant in error, it being admitted that the plaintiff in error was, at the time of the transaction on the 8th of April, and continued to the trial, the Consul for Sweden and Norway, at the port of New York, whereby the Circuit Court had no jurisdiction of the cause."