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Opinion of the Court.

217 U.S.

EX PARTE: MATTER OF GRUETTER,

PETITIONER.

MANDAMUS.

No. 9, Original. Submitted April 11, 1910.-Decided May 31, 1910.

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Where the Circuit Court has jurisdiction to determine questions

presented on a motion to remand a case to the state court and denies the motion mandamus will not lie to compel it to remand the case.

In re Pollitz, 206 U. S. 323. In this case diverse citizenship existed but plaintiff moved to remand

because the suit was not of a civil nature but for a penaliy, because the record did not show that plaintiff or defendant resided in the District to which removal was sought, and because defendant did not specifically pray for removal of cause; held that the Circuit Court had jurisdiction to determine whether the case was removable and that mandamus would not lie to compel the Circuit Judge to remand the cause.

The facts are stated in the opinion.

Mr. Arthur Crownover, Mr. Isaac W. Crabtree and Mr. William L. Myers for petitioner.

Mr. William L. Granbery for respondent.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Gruetter brought an action in the Circuit Court of Franklin County, Tennessee, against the Cumberland Telephone and Telegraph Company to recover $20,000 for violation of § 2 of chap. 66 of the Acts of 1885, which is 1842 of Shannon's Code of Tennessee, for the unjust discrimination by defendant against plaintiff set up in the declaration. The section is as follows:

“Every telephone company doing business within this

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State, and engaged in a general telephone business, shall supply all applicants for telephone connection and facilities, without discrimination or partiality, provided such applicants comply, or offer to comply, with the reasonable regulation of the company; and no such company, shall impose any condition or restriction upon any such applicant that are not imposed impartially upon all persons or companies in like situations, nor shall such company discriminate against any individual or company in lawful business by requiring, as condition for furnishing such facilities, that they shall not be used in the business of the applicant or otherwise, under penalty of $100.00 for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations, a time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused."

Defendant filed a petition to remove the case to the Circuit Court of the United States for the Middle Division of the Middle District of Tennessee, to which plaintiff demurred on the ground that it was an action to recover a penalty, and therefore was not removable. The demurrer was heard by the Circuit Judge of Franklin County. who sustained it, dismissed the petition, and refused to remove the case. Defendant obtained a certified copy of the record and filed the same in the Circuit Court of the United States for the Sixth Circuit, and plaintiff moved to remand the case because it was a suit to recover a penalty and the action was not of a civil nature; because the petition and record did not show that the suit was sought to be removed to the Circuit Court of the United States for the district in which either the plaintiff or the defendant resided; and because the defendant did not specifically pray for the removal of the cause.

The Circuit Court upon hearing filed a memorandum opinion considering and overruling all of the grounds

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presented to sustain the motion and denied the motion to remand, whereupon Gruetter filed a petition for writ of mandamus directing the District Judge of the United States for the Middle Division of the Middle District of Tennessee, holding the Circuit Court for that division, to remand the suit to the Circuit Court of Franklin County, State of Tennessee. Leave to file this petition

, was granted and a rule to show cause was thereon entered, to which the judge filed his return, stating that the motion of plaintiff to remand was denied for the reason that in respondent's opinion the several grounds of the petitioner's motion were not well founded in law, and that under the facts and pleadings presented by the record the Circuit Court of the United States for the Middle District of Tennessee, sitting at Nashville, had jurisdiction of said cause.

There was no controversy as to there being diversity of citizenship. The defendant was a corporation of Kentucky and plaintiff was a citizen of Tennessee. Inasmuch as we are of opinion that the Circuit Court of the United States had jurisdiction to determine the questions presented, we hold that mandamus will not lie. The final order of the Circuit Court cannot be reviewed on this writ. In re Pollitz, 206 U. S. 323.

Rule discharged and petition dismissed.

217 U.S.

Per Curiam.

ROGERS v. CLARK IRON COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF

MINNESOTA.

No. 244. Motion to dismiss submitted April 4, 1910.-Decided April 11,

1910.

Where the state court only decides who is entitled to lands under a

patent no Federal question is necessarily involved and this court does not have jurisdiction to review under $ 709, Rev. Stat., and in this case no Federal question was decided directly or by im

plication. An attempt to raise a Federal question in this court for the first time

is too late. 104 Minnesota, 198, affirmed.

The facts involve the claim of title to property in the State of Minnesota based on a patent of the United States. The state court found the facts as contended by the defendants, and also that the patent itself was not attacked, but that the question was: Who was the person entitled to the lands under the patent?

Mr. John B. Richards and Mr. Daniel G. Cash for plaintiffs in error.

Mr. John G. Williams, Mr. Oscar Mitchell, Mr. Joseph B. Cotton, Mr. Frank D. Adams, Mr. William R. Begg and Mr. C. O. Baldwin for defendants in error.

Per Curiam. Writ of error dismissed for want of jurisdiction. The case is reported below in 104 Minnesota, 198, where the facts are set forth at length. We hold that no Federal question was decided either in express terms or by necessary implication, and that the attempt to raise a Federal question was made in this court for the first time, which was too late.

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EX PARTE W. G. COYLE & CO., PETITIONERS.

MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF

MANDAMUS.

No.

Original. Submitted April 4, 1910.-Decided April 11, 1910.

Motion for leave to file petition for a writ of mandamus to a Circuit

Judge to remand a case removed from the state to the Federal court denied,

This was a motion for leave to file a petition for a writ of mandamus to require the Circuit Judge to remand a case which had been removed from the state court and which involved the validity of a sale of a vessel by a United States marshal under execution.

Mr. Charles Louque for the petitioners.

Mr. Edwin T. Merrick and Mr. John D.' Grace for respondent.

Per Curiam. Motion for leave to file petition for a writ of mandamus denied.

VOUGHT, IMPLEADED WITH COLLINS, v. STATE

OF WISCONSIN.

ERROR TO THE SUPREME COURT OF THE STATE OF

WISCONSIN.

No. 153. Argued for plaintiff in error April 15, 1910.--Decided April 18,

1910.

A writ of error to review a judgment of the Supreme Court of Wis

consin on the ground that ch. 90, Laws of 1903 and $8 2524, 2530, 2533, Wisconsin statutes, are unconstitutional, as denying due process of law and equal protection of the law, dismissed for want of juris

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