Robertson v. Jordan River Lumber Co.

269 F. 606, 1921 U.S. App. LEXIS 2325

Opinion

KING, Circuit Judge.

Stokes V. Robertson, "revenue agent for the state of Mississippi, herein suing for the state of Mississippi, as trustee for the use and benefit of the inhabitants of” certain designated townships, filed the above suits against Jordan River Dumber Company in the chancery court of Hancock county, Miss., and a suit against Wolf River Dumber Company in the chancery court of Pearl county, Miss. Each suit alleged the title to the land to be in the state of Mississippi; it did not claim any interest in the subject-matter of the suit in the complainant, who sued alone as the agent of the state; it prayed a decree in favo'r of the state, as trustee and holder of the legal title. Each case was removed to the United States District Court for the Southern District of Mississippi on the sole ground that the controversy therein was between citizens of different states.

[1] No point appears to have been raised on the jurisdiction of the United States District Court. This court has, however, raised the question that each suit is in fact one by the state of Mississippi, as the trustee and holder of the legal title, and that the District Court acquired no jurisdiction of the case, as presenting a controversy between citizens of different states, by such removal. The Supreme Court of the United States has declared:

“On every writ of error or appeal the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” M., C. & L. N. Ry. Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510, 511 (28 L. Ed. 462).

The consent of parties could not confer jurisdiction. Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521.

[2] A suit by an agent of the state as a nominal party in behalf of the state presents a controversy to which the state is a party, and cannot be removed to the United States court as a controversy between citizens. Ferguson v. Ross (C. C.) 38 Fed. 161, 3 L. R. A. 322; Missouri Ry. Co. v. Missouri Rd. Com’rs, 183 U. S. 53, 59, 22 Sup. Ct. 18, 46 L. Ed. 78; In re Ayers, 123 U. S. 443, 489, 8 Sup. Ct. 164, 31 L. Ed. 216. A state is not a citizen, and a suit in which she is a party to the controversy is not removable on the ground of diverse citizenship. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962.

[3] The state, as the holder of the legal title of these lands in trust for a class as beneficiaries, is not a merely nominal party. Foster’s Fed. Pr. (6th Ed.) § 44; Wilson v. Oswego Township, 151 U. S. 56, 65, 14 Sup. Ct. 259, 38 L. Ed. 70. The United States District Court, therefore, had no jurisdiction of these cases. Chicago, R. I. & P. Ry. Co. v. State of Nebraska, 251 Fed. 279, 163 C. C. A. 435.

The decrees in these causes are therefore reversed, with instructions to the District Court to remand them to the state court.