the case in the state court, or prosecute it in the federal court and disregard the state court, or do both."

But it is not a waiver of the right to remove, where a nonresident defendant enters a special appearance in a state court, and asks to set aside a judgment against him for want of service, and takes a bill of exceptions to the refusal of the court to do so."

Nor is it a waiver of the right to remove to give an attachment bond in the state court in order to release property from attachment."

But if the petitioner invokes affirmative relief in the state court, instead of simply standing on his defense, he waives his right of removal, as he cannot invoke a jurisdiction and afterwards deny it."

Although a defendant in a particular case can waive his right to remove, either by express consent or by acts equivalent thereto, he cannot agree generally not to remove cases to the federal courts, nor can a state statute require such an agreement, as it would be in fraud of the jurisdiction of the courts. This question has come up frequently in cases where state legislatures attempt to impose on foreign corporations, as a condition of allowing them to do business in the state, an agreement that they would not remove their cases to the federal courts.

• Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 29 Sup. Ct. 430, 53 L. Ed. 765; Avent v. Deep River Lumber Co. (C. C.) 174 Fed. 298. See "Removal of Causes," Dec. Dig. (Key-No.) § 17; Cent. Dig. § 10; "Courts," Cent. Dig. § 150.

7 Baumgardner v. Bono Fertilizer Co. (C. C.) 58 Fed. 1. See "Removal of Causes," Dec. Dig. (Key-No.) § 17; Cent. Dig. § 10; "Courts," Cent. Dig. § 150.

8 Purdy v. Wallace, Muller & Co. (C. C.) 81 Fed. 513. See "Removal of Causes," Dec. Dig. (Key-No.) § 17; Cent. Dig. § 10; "Courts," Cent. Dig. § 150.

9 Merchants' Heat & Light Co. v. James B. Clow & Sons, 204 U. S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488; Texas & P. R. Co. v. Eastin & Knox, 214 U. S. 153, 29 Sup. Ct. 564, 53 L. Ed. 946. See "Removal of Causes," Dec. Dig. (Key-No.) § 17; Cent. Dig. § 10; "Courts," Cent. Dig. 150.

In Doyle v. Continental Ins. Co.10 there are expressions in the opinion which imply that a state legislature could direct its officers to revoke a license granted to a foreign corporation if a foreign corporation removed a case, on the ground that the state, having the right to refuse the privilege of doing business entirely to a corporation, could not have its action or instructions to its own officers inquired into.

But in the later case of Barron v. Burnside 11 the Supreme Court explained that the only question decided in the above case was that an injunction would not lie against a state officer to prevent him from revoking such a'license, and that a provision in a state statute requiring such an agreement from a foreign corporation was absolutely void.12

But while state statutes cannot require an agreement not to remove as a condition of doing business in the state, they may provide that a foreign corporation which removes a case shall forfeit any right to continue business in the state, provided that no property rights have vested, and provided further that other constitutional provisions are not violated by the statute.18

On the same principle, a state cannot limit to its own courts the enforcement of a controversy of which Congress has given the federal courts jurisdiction. If the contro

10 94 U. S. 535, 24 L. Ed. 148. See "Removal of Causes," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 4, 5.

11 121 U. S. 186, 7 Sup. Ct. 931, 30 L. Ed. 915. See "Removal of Causes," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 4, 5; "Corporations," Cent. Dig. § 2506.

12 Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942. See "Removal of Causes," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 4, 5.

13 Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. 619, 50 L. Ed. 1013, 6 Ann. Cas. 317; Chicago, R. I. & P. R. Co. v. Swanger (C. C.) 157 Fed. 783; Herndon v. Chicago, R. I. & P. R. Co., 218 U. S. 135, 50 Sup. Ct. 633, 54 L. Ed. 970. See "Corporutions," Dec. Dig. (Key-No.) § 651; Cent. Dig. § 2506.

HUGHES FED.PR. (2D ED.)-20

versy is such as can be constitutionally conferred on the federal courts by Congress, and if it has been so conferred, then the act of the state in giving its own courts jurisdiction of itself gives the federal courts jurisdiction over it. For instance, in Lincoln Co. v. Luning 14 a state statute gave the right to sue a county simply in the state courts. It was held that a nonresident could bring a suit against the county in the federal courts.

15

In George T. Smith Middlings Purifier Co. v. McGroarty the state statute limited the procedure to its probate courts. The Supreme Court, considering that the question involved was not a mere probate proceeding, but a controversy between citizens of different states, held that it could be originally brought in the federal courts.

The above cases were both cases of original suits in the federal courts. Clark v. Bever 18 was a case where a decedent's estate was being settled in a probate proceeding, but there was a controversy between citizens of different states as to their rights in these probate proceedings. The court held that such a controversy could be removed into the federal court.

In Kirby v. Chicago & N. W. Ry. Co.1 a condemnation proceeding in a court was held to be removable into the federal courts.

14 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766. See "Courts," Dec. Dig. (Key-No.) § 259; Cent. Dig. §§ 795, 796.

15 136 U. S. 237, 10 Sup. Ct. 1017, 34 L. Ed. 346. See "Courts," Dec. Dig. (Key-No.) § 259; Cent. Dig. §§ 795, 796.

16 139 U. S. 96, 11 Sup. Ct. 468, 35 L. Ed. 88. See "Removal of Causes," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 4, 5.

17 (C. C.) 106 Fed. 551. See, also, ante, p. 222; Fishblatt v. Atlantic City (C. C.) 174 Fed. 196; Kaw Valley Drainage Dist. of Wyandotte County, Kan., v. Metropolitan Water Co., 186 Fed. 315, 108 C. C. A. 393; Madisonville Traction Co. v. St. Bernard Min. Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462. See "Removal of Causes," Dec. Dig. (Key-No.) § 4; Cent. Dig. §§ 11–20.

SCOPE OF THE JURISDICTION

112. The jurisdiction of the district courts applies, generally speaking, to such cases as could be originally brought in the district court, as set out ante, p. 218, and may be summarized as follows:

(a) Federal questions.

(b) Suits by the United States, or its officers.

(c) Suits or separable controversies between citizens of different states.

(d) Suits between citizens and aliens.

(e) Suits under grants of land from different states. (f) Suits from denial of civil rights.

(g) Suits and prosecutions against revenue officers, etc. (h) Suits by aliens against civil officers of the United States.

The first section of this act, as carried into section 24 of the Judicial Code, has already been quoted in full in connection with the original jurisdiction of the district court.18 The second and third sections, as now embodied in section 28 of the Judicial Code, regulate the removal from the state courts of the vast majority of instances where removal is authorized. The first sentence of this section provides for removal, under certain circumstances, of cases arising under the Constitution and laws of the United States, or federal questions, as they are commonly termed. This provision is based upon the character of the controversy, and is independent of citizenship.

The second sentence provides for the removal of cases dependent upon the kind of litigants, covering those which could have been originally instituted in the federal courts. under the provisions of section 24 of the Judicial Code. They cover suits brought by the United States, contro

18 Ante, p. 219.

versies between citizens of different states, and controversies between citizens and aliens.

The third sentence provides for removing a controversy in the main case which is between citizens of different states, and which can be fully determined as to them, or controversies commonly termed separable. This provides only for controversies between citizens of different states, not for controversies between citizens and aliens.

The fourth sentence provides for the removal of controversies where prejudice or local influence can be made to appear. This covers only cases between citizens of different states.

Section 30 of the Judicial Code provides for controversies between citizens of the same state claiming under land grants of different states. Independent of this provision, such a case would have been covered by the provision of section 28 allowing the removal of any suit which could have been originally brought under the provisions of section 24 of the Code, for that section names among such cases controversies between citizens of the same state claiming lands under grants of different states, as has been previously shown; the only difference being that in case of removal the matter in dispute must exceed $3,000 in value.19

The next class of cases for which a removal is provided is cases against persons denied any civil right, and is covered by section 31 of the Judicial Code. Under this provision both civil and criminal cases can be removed.

The next provision as to removal is the case of suits and prosecutions against revenue officers, and is covered by section 33 of the Judicial Code.

The next provision is for the removal of suits by aliens against nonresident citizens of a state who are acting as civil officers of the United States, and is covered by section 34 of the Judicial Code.

19 Ante, P. 226.