Venner v. New York Cent. R. Co.

• Decision Date: 06 November 1923
• Docket Number: 3806.
• Citation: 293 F. 373
• Parties: VENNER v. NEW YORK CENTRAL R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

293 F. 373

VENNER v. NEW YORK CENTRAL R. CO.

No. 3806.

United States Court of Appeals, Sixth Circuit.

November 6, 1923

Frederick A. Henry, of Cleveland, Ohio (Snyder, Henry, Thomsen, Ford &amp Seagrave, of Cleveland, Ohio, on the brief), for appellant.

S. H West, of Cleveland, Ohio, for appellee.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

The appellant filed his petition in a state court, seeking an injunction against the New York Central Railroad Company to prevent it from issuing certain equipment trust bonds. The defendant removed the case to the court below upon the ground that it arose under federal laws. The District Court overruled a motion to remand and denied a preliminary injunction. This appeal is from the latter order.

While the action of the court below upon the motion to remand is not in that particular separately reviewable by this court yet it is clear that, however the case gets here, the jurisdiction of the court below, based upon a removal petition, is involved, and must be decided, even if not challenged by either party. Supreme Council v. Hobart (C.C.A. 7) 244 F. 385, 157 C.C.A. 11.

We consider it well settled that a cause of action does not arise under federal laws, so as to justify removal, unless the plaintiff's right, to enforce which the suit is brought, arises out of and depends upon those laws, so that both in stating and in proving his case he must show that his right to recover stands upon the federal law; and that, even though his complaint may disclose that the case will turn upon and be ruled by the construction and effect given to some federal law under which defendant is claiming, the federal jurisdiction will fail. Tennessee v. Union Bk., 152 U.S. 454, 459, 461, 14 Sup.Ct. 654, 38 L.Ed. 511; Arkansas v. Kansas Co., 183 U.S. 185, 193, 22 Sup.Ct. 47, 46 L.Ed. 144; Boston Co. v. Montana Co., 188 U.S. 632, 639, 23 Sup.Ct. 434, 47 L.Ed. 626; Louisville Co. v. Mottley, 211 U.S. 149, 152, 29 Sup.Ct. 42, 53 L.Ed. 126; In re Winn, 213 U.S. 458, 465, 29 Sup.Ct. 515, 53 L.Ed. 873; Denver v. Trust Co., 229 U.S. 123, 33 Sup.Ct. 657, 57 L.Ed. 1101; Taylor v. Anderson, 234 U.S. 74, 34 Sup.Ct. 724, 58 L.Ed. 1218.

Although the formula stated in Hopkins v. Walker, 244 U.S. 486, 489, 37 Sup.Ct. 711, 61 L.Ed. 1270, and First Nat. Bank v. Williams, 252 U.S. 504, 512, 40 Sup.Ct. 372, 64 L.Ed. 690, seems to emphasize the element that the result will 'turn upon' the federal question, yet even this formula does not omit reference to the further essential element that the federal question must appear in plaintiff's statement of his own case, and not by his statement of an anticipated defense. We are not satisfied that there was in these last two cited cases any intent to change the rather strict definition, as it had earlier developed, of the words 'arising under.'

Further and in any event, it is the rule that to justify removal to the federal court the controlling federal question must appear directly and positively upon the complaint, and cannot be raised by vague inferences from its allegations, nor by...