Opinion of the Court.

the Federal court, was an action by the State of Tennessee to recover a tax levied under the laws of that State. The defendant was at liberty, at its option, to defend against the tax upon the ground that it was in contravention of the Constitution or laws of the United States. Whether the case would ever present any question under the Constitution or laws of the United States depended altogether upon the election of the defendant to set up an immunity thereunder as its personal privilege. But at bar the action is against an officer of the United States, who has no privilege or duty except to answer that the possession which he holds, and of which the plaintiff seeks to deprive him, is the possession of the United States.

It is, in fact, a suit to recover the possession of the United States, which cannot be held otherwise than through some agent or officer. It is an action against a defendant who exercises his authority and holds his possession under the Constitution and laws of the United States, and not otherwise, and upon the principle of Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, is therefore a suit "arising under the Constitution and laws of the United States," which might have been brought originally in the Circuit Court of the United States, and which was therefore properly removed by the defendant into that court.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The question presented by the pleadings, considered in the opinion below, and argued at the bar, cannot be decided upon. this record, because the case was removed into the Circuit Court of the United States without authority of law. The question of removal is governed by the decision of this court at the last term in Tennessee v. Bank of Commerce, 152 U. S. 454, by which, upon full consideration, it was adjudged that under the acts of March 3, 1887, c. 373, (24 Stat. 552,) and August 13, 1888, c. 866, (25 Stat. 433,) a case (not depending on the citizenship of the parties, nor otherwise specially pro

Opinion of the Court.

vided for,) cannot be removed from a state court into the Circuit Court of the United States, as one arising under the Constitution, laws or treaties of the United States, unless that appears by the plaintiff's statement of his own claim; and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings.

In the present case, the declaration is in the ordinary form of an action of ejectment between individuals, merely describing the land and alleging the ouster of the plaintiff by the defendant. It does not show that either party claims any right under the Constitution or laws of the United States, or that the government of the United States or any third party claims or asserts any title or right to the land in controversy. So far as the declaration shows, the only question in the case might be merely whether the plaintiff has any title, or whether the defendant has taken possession. There was therefore no ground for ousting the jurisdiction of the courts of the State, and removing the case into the courts of the United States for trial.

The case must be remanded to the court in which it was originally brought. If such a defence as was set up in the Circuit Court of the United States should be hereafter set up in the courts of the State, and overruled by the highest court of the State to which the case can be taken, the judgment of that court may be reviewed by this court on writ of error. Judgment reversed, with costs, and case remanded to the

Circuit Court of the United States with directions to remand it to the Circuit Court of the fifth judicial circuit of the State of Maryland.

Syllabus.

UNITED STATES v. JAHN.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 541. Argued and submitted October 23, 1894.

Decided November 5, 1894.

A Circuit Court of the United States has jurisdiction to hear and determine, on appeal from the Board of General Appraisers, the questions of law and of fact involved in a decision of that Board sustaining the action of a collector of customs in exacting a charge for gauging molasses under the provisions of Rev. Stat. § 3023.

Giving to the act of March 3, 1891, 26 Stat. 826, c. 517, to establish Circuit Courts of Appeals, taken as a whole, a reasonable construction, it is held:

(1) That if the jurisdiction of the Circuit Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error directly to this court;

(2) That if the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff who has maintained the jurisdiction, must appeal to the Circuit Court of Appeals, where, if the question of jurisdiction arises, the Circuit Court of Appeals may certify it;

(3) That if the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the whole case to the Circuit Court of Appeals, and the question of jurisdiction can be certified by that court;

(4) That if in the case last supposed the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the Circuit Court of Appeals on the merits, and this he may do by way of cross-appeal or writ of error if the defendant has taken the case there, or independently, if the defendant has carried the case to this court on the question of jurisdiction alone, and in this instance the Circuit Court of Appeals will suspend a decision upon the merits until the question of jurisdiction has been determined;

(5) That the same observations are applicable where a plaintiff objects to the jurisdiction and is, or both parties are, dissatisfied with the judgment on the merits.

The docket title of this case being wrong, it is corrected by this court.

Opinion of the Court.

AUGUST 15, 1890, G. A. Jahn & Co. imported into New York some casks of molasses, which on the 28th of that month they withdrew from warehouse and exported to Montreal for the benefit of the drawback. Upon such withdrawal and exportation, the collector of customs at New York exacted a charge of ten cents per cask for gauging the molasses under the provisions of section 3023 of the Revised Statutes. The importers protested against the charge for gauging, claiming that it had been abolished by the 22d section of the act entitled "An act to simplify the laws in relation to the collection of the revenue," approved June 10, 1890. 26 Stat. 131, 140, c. 407.

The matter was duly taken before the board of general appraisers, which sustained the action of the collector, and the importers appealed to the Circuit Court of the United States for the Southern District of New York. The Circuit Court reversed the decision of the board of general appraisers, and held that the gauging charge exacted by the collector had been abolished. Thereupon the United States appealed to the Circuit Court of Appeals, and assigned for error that the Circuit Court erred in reversing the decision of the board of general appraisers for the reason that the decision of the board was final and conclusive, and that the Circuit Court had no jurisdiction to make any decree or order in said proceeding. The jurisdiction of the Circuit Court was first challenged upon the appeal. The Circuit Court of Appeals certified to this court the question: "Whether the United States Circuit Court had jurisdiction to hear and determine the questions of law and of fact involved in said decision of the board of general appraisers."

Mr. Solicitor General for the United States, submitted on his brief.

Mr. Edwin B. Smith for Jahn & Co.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This case was docketed here under the title: "In the

Opinion of the Court.

6

matter of the application of Gustave A. Jahn & Co. upon certain merchandise entered by the Alps,' August 15, 1890," but the correct title is United States v. Gustave A. Jahn et al., for the reasons given by Mr. Justice Gray in United States v. Hopewell, 5 U. S. App. 137.

Counsel for the importers denies that the Circuit Court of Appeals had authority to certify the question of the jurisdiction of the Circuit Court to this court because that question was not in issue in the Circuit Court or raised in any way; and, if it had been in issue, it could only be certified by the Circuit Court to this court; that as it was not put in issue and not certified, and an appeal was taken to the Circuit Court of Appeals, the action of the Circuit Court in proceeding to judgment was a final determination in favor of its own jurisdiction, which could not be revised by the Circuit Court of Appeals though under instruction from this court.

.

The act of March 3, 1891, 26 Stat. 826, c. 517, establishing the Circuit Courts of Appeals, provides in its fourth section that "the review, by appeal, by writ of error, or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States or in the Circuit Courts of Appeals hereby established according to the provisions of this act regulating the same;" in section five, that "appeals or writs of error may be taken from the existing Circuit Courts direct to the Supreme Court in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision;" in section six, that the Circuit Courts of Appeals "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the . . existing Circuit Courts. in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the judgments or decrees of the Circuit Courts of Appeals shall be final. . . in all cases arising

under the revenue laws

excepting that in every such subject within its appellate jurisdiction the Circuit Court of Appeals at any time may certify to the Supreme Court of the