Page:Federal Reporter, 1st Series, Volume 9.djvu/367

 352 FBDEEAL BEPORTBB. �tendent, conductor, engineer, or other person — to perform a duty connected with the operation of the road. �It may be that a particular contract which the receiver bas made is not authorized, in express terms, by the order of the court appoint- ing him, but still if the act is done under the color of authority of the court, and any controversy arises between the persons employed and the receiver, or between him and other claimants, it would seem as though the court, under whose authority this was claimed to be done, is the proper tribunal to settle it. It could hardly have been in the contemplation of congress that such a course as that supposed would enable a party to transfer a cause to the federal court, where the litigation was pending in a state court. That would be something which grew out of the action of the state court and its officer in the performance of a duty, or what he supposed to be a duty. That was substantially this case. Mr. Sturges has no. other standing in this court than what grows out of that posture of the case. He voluntarily went to the state court and asked, through the receiver, that a contract should be made with him. He undertook to perform that contract. It is to be presumed, in the absence of any evidence to the contrary, that he and the receiver both acted in good faith. Upon a question, made in the state court, it was decided that the contract was not authorized by the terms of the order of appoint- ment; but the court also held that Mr. Sturges having performed services and having expended money, it was just he should receive compensation for what had been done, and for the money expended. �I think it may be laid down as a sound prineiple that if a con- troversy, under such circumstances, does arise between the contract- ing party and the receiver, or between him and other claimants to the common fund, out of which they all seek payment, it is not such a controversy as entitles the contractor to remove the cause to the federal court. �In this case, the only question was, what amount should be paid to Sturges for the work and labor done, materials furnished, and money expended. The other claimants, it may be, are in the same condition as himself. They all went before the state court to represent their different claims and insist that they should be paid. Now, is the possibility that there may be a fund less than enough to pay off the varions claims, a question of such a character as to entitle a party to remove the cause to this court ? I think not. It is true, Sturges may say that some of the petitioners had not a just claim to any portion of the fund, or, if they had, that their claim was subordinate to bis. If ��� �