State v. Louisville & Nashville R.

Smith, C. J.,

delivered the opinion of the court.

All of the matters presented to us for review hy this record were, either expressly or hy necessary implication, decided adversely to appellee on the former appeal. 97 Miss. 35 , 51 South. 918 , 53 South. 454 , Ann. Cas. 1912C, 1150. It may he that appellee’s right under the act of 1867 were not presented to the court for decision hy the record on the former appeal; hut, he that as it may, this statute was called to the attention of the court in the hriefs of counsel, and was held not to constitute such a contract as would he violated hy the granting of the relief prayed for in the hill. Whether this was dicta or not, the rule announced is correct, and meets with our approval.

Reversed and remanded.

ON SUGGESTION OE ERROR.

Counsel for appellee suggest that in deciding this case we have overlooked two reasons why the judgment of the court helow should he affirmed: First, that “there was no violation of the anti-removal statute (chapter 122, Laws of 1908), as interpreted hy the opinion, because the suit removed was one arising under the Constitution and laws of the United Statesi, and would have been removable hy a domestic corporation;” and, second, “the effect of the decision of the Supreme Court of the United States, in affirming the decree of the United States Circuit. Court perpetually enjoining enforcement of the act of 1908., because violative of the federal Constitution.”

In this counsel are in error; for both of these propositions were given hy us due consideration, and found to he wholly without merit. It is clear, from the argument of counsel in support of their first proposition, that they do not contend that the suit removed was one arising under the Constitution and laws of the United States, hut that one of the two grounds for removal alleged in the petition *416 therefor was a defense arising out of such Constitution and laws, to which appellee was entitled to the benefit, to wit: That the order of the Railroad Commission sought to be enforced was an ‘‘unreasonable interference with interstate commerce;” the other ground being diversity of citizenship. This allegation in the petition was ineffectual as a ground for removal, for the reason that “a •case, not depending on the citizenship of the parties, nor •otherwise specially provided 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.” State of Tennessee v. Union Planters’ Bank, 152 U. S. 454 , 14 Sup. Ct. 654, 38 L. Ed. 511 ; Chappell v. Waterworth, 155 U. S. 102 , 15 Sup. Ct. 34, 39 L. Ed. 85 ; 4 Fed. Stat. Ann. 314, and authorities there cited. “But, even assuming that the bill ’ ’ filed in the suit removed ‘ ‘ showed upon its face that the relief sought would be inconsistent with the power to regulate commerce, ... it would only demonstrate that the bill could not be maintained at all, and not that the cause of action arose under the Constitution or laws of the United States.” State of Arkansas v. Kansas & Texas Coal Co., 183 U. S. 190 , 22 Sup. Ct. 49, 46 L. Ed. 144 .

With reference to counsel’s second proposition, we will say that the constitutionality of the statute here drawn in question seems not to have been submitted to the Supreme Court of the United States for decision in the case of Railroad Commission v. L. & N. Railroad Company, 225 U. S. 272 , 32 Sup. Ct. 756, 56 L. Ed. 1087 ; the only question which seems to have been submitted to or decided by that court in that case being one of jurisdiction, the uneonstitutionalitv of the statute having been conceded in the court below.

Suggestion of error overruled.