Supreme Court of United States.
*475 Mr. F.W. Cotzhausen for plaintiff in error.
Mr. H.W. Chynoweth for defendant in error.
MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.
A suit by a State in one of its own courts cannot be removed to a Circuit Court of the United States under the act of 1875, unless it be a suit arising under the Constitution or laws of the United States or treaties made under their authority, Ames v. Kansas, 111 U.S. 449; and a suit cannot be said to be one arising under the Constitution or laws of the United States until it has in some way been made to appear on the face of the record that "some title, right, privilege, or immunity, *476 on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by an opposite construction." Starin v. New York, 115 U.S. 248, 257. This record shows no such thing, for, as the case now stands, the right of recovery depends alone on the question whether service of summons has been made on a person who was at the time an agent of the company within the State on whom process might legally be served, so as to bind the company and bring it within the jurisdiction of the court. This is a mixed question of law and fact, and in no way dependent on the construction of the Constitution or any law of the United States. If decided in one way, the suit will be at an end and the company relieved from all necessity of appearing to defend. If in another, the company must appear or suffer the consequences of a default. As yet no suit arising under the Constitution or laws of the United States has been brought, within the meaning of that term as used in the statute. There is nothing in the complaint which discloses any such case, and, until the company submits itself to the jurisdiction of the court for the trial of the suit, it cannot be permitted to allege any new matter. All further proceedings have been stopped by the company on its own motion until it can be determined whether any suit at all has in law been begun so as to require the company to appear and defend. The case stands, therefore, on the summons, the alleged service, the complaint, the special appearance of the company for the purposes of its motion to vacate the service, and the petition for removal, which must be limited in its statements to such as are consistent with the special appearance which has been entered. No new matter in the nature of a defence to the action can be introduced. The only question which can be considered in the case as it now stands is whether Harmon, on whom this process was served, was in fact an "authorized agent." The suit, therefore, does not, as yet, "really and substantially involve a dispute or controversy properly within the jurisdiction of the Circuit Court," and it was properly remanded.
The order to that effect is consequently
Affirmed.
*477 People's Insurance Company v. Wisconsin. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. The cause was submitted with Germania Insurance Co. v. Wisconsin, by the same counsel. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The material facts in this case are substantially like those in Germania Insurance Co. v. Wisconsin, just decided, and the questions for determination are the same. The order remanding the suit is affirmed on that authority.
Affirmed.
