Moreover the contract, while it postpones payment of wages by the employer to a future definite day, also contains provisions to the advantage of the employe; as, for instance, it gives the libelant the right to demand on the 25th of September wages up to the 12th of September, notwithstanding the fact that he had been discharged for drunkenness on the latter date. To such a contract the decisions made in favor of seamen upon ships do not seem to me to be applicable. So far as the wages earned after the written contract are concerned, the suit will be held to be premature.

THE ROCKAWAY.1

THE SEABOARD.

LOMBARD et al. v. THE ROCKAWAY.

BRENNAN et al. v. THE SEABOARD.

(District Court, E. D. New York. October 1, 1890.)

COLLISION-STEAM-VESSELS CROSSING-UNWARRANTED BACKING.

The steam-boat R. was going through the Kill von Kull, bound for New York, on a course some 500 feet off the New Jersey shore. The propeller S. had been lying at a dock on the New Jersey shore, and started to back out into the stream, and across the course of the R., as the latter approached. The S. gave no signal to indicate her intention, and continued to back almost to the moment of collision. The R. backed as soon as the intention of the S. was seen, but the vessels came together. Held, that the collision was the fault of the S.

In Admiralty. Cross-suits for damages caused by collision between the steam-boats Rockaway and Seaboard.

The steam-boat Rockaway was going through the Kill von Kull, bound for New York, some 500 feet from the New Jersey coast. The tug Seaboard, lying at a pier on the New Jersey shore, attempted to back out as the Rockaway approached, but gave no signals of such intention. The Rockaway reversed and backed as soon as the intent of the Seaboard was discovered, but a collision followed.

Goodrich, Deady & Goodrich, for the Seaboard.
Whitehead, Parker & Dexter, for the Rockaway.

BENEDICT, J. The collision which gave rise to this suit was, in my opinion, caused by the fault of the tug in backing directly under the bows of the steam-boat, then approaching in plain sight, without any signal having been given the steam-boat to show an intention on the part of the tug to back across her bow. I see no fault on the part of the steam-boat. There was no time after the intention of the tug to cross the bows of the steam-boat was manifest for the steamer to do more than she did. The libel against the Rockaway must be dismissed, and in the action against the Seaboard there must be a decree for the libelant, with an order of reference.

1 Reported by Edward G. Benedict, Esq., of the New York bar.

HERMAN v. MCKINNEY et al.

(Circuit Court, D. South Dakota, E. D. November 8, 1890.)

COURTS-ADMISSION OF STATES-TRANSFER OF CAUSES.

The right to remove to the federal courts causes pending in the territorial courts of Dakota when the two states were admitted to the Union depends not upon Act Cong. Aug. 13, 1888, upon removal of causes in general, but upon the enabling act of Feb. 22, 1889, § 23, which provides that cases which would have been of federal jurisdiction when brought if such courts had existed shall be removed upon the request of either party, and hence a motion to remand cannot be sustained upon the ground that the removal was made at the demand of a defendant residing in the state.

In Equity.

Motion to remand.

McMartin & Carland, for complainant.

Kieth & Bates and Winsor & Kittredge, for defendants.

SHIRAS, J. The complaint in this cause was filed November 2, 1888, in the district court of Minnehaha county, Dakota territory, the complainant then being a citizen of the state of New York, the defendant McKinney being a citizen of Dakota territory, and the defendant corporation being then a national bank, created under the statutes of the United States, and having its principal place of business at Sioux Falls, in the then territory of Dakota. The citizenship and residence of the several parties has remained unchanged, except as that of the defendants has been affected by the admission of South Dakota as one of the states of the federal Union, under the provisions of the act of congress approved February 22, 1889, and commonly referred to as the "Omnibus Bill." Under the constitution and laws of the state of South Dakota, the court of original trial jurisdiction is known as the "circuit court." Upon the admission of the state, the record and files in this cause passed into the custody of the state circuit court, and on the 10th day of May, 1890, the defendants filed a written request in that court for the transfer of the cause to this court, which request was granted, and the papers and record have been in due form transferred to and docketed in this court.

Complainant now moves for an order remanding the case to the state court, on the ground that this court has not jurisdiction thereof; that the defendants, on whose request it was brought into this court, were, when the suit was brought, residents of the then territory of Dakota, and, when the removal was requested, residents of the state of South Dakota; and that a removal from a state court to this court cannot be had upon petition of a resident of this state. The right of removal in this cause is not dependent upon the act of congress of August 13, 1888, amending the act of March 3, 1887. It depends upon the provisions of the act under which South Dakota was admitted to the Union, and which, in terms, made provision for the disposition of causes pending in the courts of the territory. By the twenty-third section of that act it is, in substance, declared that cases which would have been of federal jurisdiction when brought, if South Dakota had then been a state with a federal court v.43F.no.11-44

organized therein, are, at the request of either party, transferable to the federal court. This statute not only does not limit the right of transfer to the non-resident defendant, as is the fact in many of the clauses of the removal act of 1888, but it expressly confers it upon all the parties, regardless of their position on the record as plaintiffs or defendants, and without limitation as to their residence. In this particular the statute is too clear to need construction to show its meaning. In substance, the federal court is made the successor of cases of federal jurisdiction,—that question being viewed in the light of the facts existing when the suit was brought; and, if the case is one of federal jurisdiction, then either of the parties. may cause it to be transferred to the federal court. It is not strictly a question of removal from a state court, but the determination of the question whether, under the omnibus bill, the case is one of successorship in the federal court. When the suit was brought, it involved over $2,000. The parties were residents and citizens of different states, viewing, as the act requires us to do, the territory of Dakota as being then a state; in other words, if, when this suit was brought, there had then been in existence a federal court for South Dakota, it would have had jurisdiction of this cause. This being so, then under the omnibus act, either party could cause it to be transferred into the federal court. This view is in accordance with the construction placed upon this section of the omnibus bill in the written opinion delivered by Judge EDGERTON upon a similar motion to remand, filed in the case of Dorne v. Mining Co., infra, to which reference may be made for a more full discussion of the question. Motion to remand overruled.

EDGERTON, J., concurring.

DORNE v. RICHMOND SILVER MIN. Co.

(Circuit Court, D. South Dakota. November 11, 1890.)

1. COURTS-ADMISSION OF STATES-TRANSFER OF CAUSES.

Act Cong. Feb. 22, 1889, under which the Dakotas were admitted as states of the Union, provides, in section 23, that, upon the written consent of a party, all cases pending in the territorial courts at the time of admission "whereof the circuit or district courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases," shall be transferred to the said federal circuit and district courts. Held, that the provision applies to a case in which the plaintiff was a citizen of Dakota territory, and the defendant a citizen of another state, at the commencement of the suit.

2. SAME-CONSTITUTIONAL LAW-DIVERSE CITIZENSHIP.

Said section 23 does not attempt to give the federal courts jurisdiction, on the ground of diverse citizenship, of cases between a citizen of a state and a citizen of a territory, and therefore does not extend such jurisdiction to cases not warranted by Const. U. S. art. 3, § 2, in the words, "to controversies between citizens of different states. "

3. SAME-STATE COURTS-CONSTRUCTION OF STATUTE.

*

*

Section 23 provides that no action pending in the territorial courts shall abate by the admission of the state, "but the same shall be transferred and proceeded with

in the proper United States circuit, district, or state court, as the case may be: provided, however, that in all civil actions, causes, and proceedings in which the United States is not a party transfers shall not be made to the circuit and district courts of the United States except upon written request of one of the parties to such action; * and, in the absence of such request, such cases shall be proceeded with in the proper state court. Held that, upon such request, the state court is deprived of jurisdiction, and the federal court gains exclusive jurisdiction.

On Motion to Remand to Supreme Court of South Dakota.

Van Cise & Wilson, for appellant.

Martin, Mason, Moody, and Washabough, for respondent.

EDGERTON, J. This action was brought by the plaintiff, Victor Dorne, against the Richmond Silver Mining Company in the month of October, 1883, in the district court of the territory of Dakota for the county of Lawrence, to recover damages for breach of contract. The case was tried in April, 1889, and a verdict rendered in favor of the plaintiff April 15, 1889, for $15,375.75. The defendant appealed from the judgment to the supreme court of the territory of Dakota, and the cause was pending on appeal at the time of the admission of South Dakota as a state, on November 2, 1889. The defendant moved to transfer the case from the supreme court of the state to this court, upon the ground of diverse citzenship. At the February, 1890, term, the supreme court of South Dakota transferred the case to this court. The plaintiff now moves the court to remand the case to the supreme court of South Dakota. The motion to transfer the case from the state court to this court was not ex parte, but the question was fully presented, pro and con, by the plaintiff and defendant, and was carefully considered by that court. See 44 N. W. Rep. 1021.

The contention of the respondent is that section 2, art. 3, of the constitution of the United States only authorizes congress to extend the jurisdiction of the federal courts, in cases where no other cause exists than diverse citizenship, "to controversies between citizens of different states," and not between citizens of a state and territory. Section 23 of the enabling act attempts to confer jurisdiction on the federal courts of the states admitted under it in all cases "whereof the circuit or district courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases;" that at the time this action was commenced, the plaintiff was a citizen of a territory, and consequently could not transfer his case to the federal court. Therefore, if this section attempts to give the federal court jurisdiction in this class of cases by reason of diverse citizenship, to that extent the law is unconstitutional. This is the contention of the respondent, and upon this ground he asks for an order remanding the case to the state court.

There are three propositions submitted to the court in the consideration of this question: First. Was it the intention of congress in the enabling act to embrace this class of cases among those to which the federal courts should succeed the territorial court? Second. If it was, is that portion of the act in conflict with article 3 of the constitution of the

United States? Third. If so, what court, if any, has jurisdiction of this case?

When a territory is admitted into the Union, the cases then pending in the territorial courts abate, unless congress in some measure, either directly or inferentially, provides for their survival. The territory of Dakota was not admitted by congress into the Union as one state, but was divided into two states, and the two states admitted at the same time. Neither state succeeded the territory except as provided in the enabling act, and, unless congress, by some legislation either in the act of admission or elsewhere, provided for the survival of causes pending at the time of admission, then all such cases abate.

The supreme court, in Benner v. Porter, 9 How. 246, said, inter alia: "The territorial courts were the courts of the general government, and the records in the custody of their clerks the records of that government; and it would seem to follow, necessarily, from these premises, that no one could legally take the possession or custody of the same without the assent, express or implied, of congress. Such assent is essential, upon the plainest principles, to an authorized change of their custody.”

In Hunt v. Palao, 4 How. 590, the court held that

"The territorial court of appeals was a court of the United States, and the control over its records, therefore, belongs to the general government, and not to the state authorities; and it rests with congress to declare to what tribunal these records and proceedings shall be transferred, and how these judgments shall be carried into execution, or reviewed upon appeal or writ of error."

Also, in Express Co. v. Kountze, 8 Wall. 342, Mr. Justice Davis, in delivering the opinion of the court, says:

"Before proceeding to consider the merits of this controversy, it is necessary to dispose of the point of jurisdiction which is raised. It is urged that the circuit court had no jurisdiction over the cause, because there was no authority to transfer it. This depends on the construction of the acts of congress relating to the subject. On the admission of a new state into the Union, it becomes necessary to provide, not only for the judgments and decrees of the territorial courts, but also for their unfinished business. In recognition of this necessity, congress, after Florida became a state, passed an act providing, among other things, that all cases of federal character and jurisdiction pending in the courts of the territory be transferred to the district court of the United States for the district of Florida. The provisions of this act were made applicable, at the time of its passage, to cases pending in the courts of the late territory of Michigan, and were afterwards extended to the courts of the late territory of Iowa. Congress, in making this provision for the changed condition of Iowa, thought proper in the same act to adopt a permanent system on this subject, and extended the provisions of the original and supplementary acts to cases from all territories which should afterwards be formed into states. * * *It is said, if cases of a federal character were properly transferable to the circuit court, this was not one of them; because it does not appear that the suit was between citizens of different states. * * * The course of proceeding in the court below shows that the parties to the suit recognized it as being of federal jurisdiction, and it could only be so, as there was no federal question involved, on the ground that the plaintiffs and defendant were citizens of different states."