Union Pacific Railway Company v. Myers/Dissent Waite

WAITE, C. J., dissenting.

I am unable to agree to these judgments. In my opinion congress did not intend to give the words 'arising under the constitution or laws of the United States,' in the act of 1875, the broad meaning they have when used by Chief Justice MARSHALL in the argument of the opinion in Osborn v. Bank of U.S. I do not doubt the power of congress to authorize suits by or against federal corporations to be brought in the courts of the United States. That was decided in Osborn's Case, and with it I have no fault to find. Neither do I doubt that congress did, in the charters under which these corporations exist, authorize suits by or against them to be brought in the courts of the United States as well as in the courts of the states; but I cannot believe that, if the charters had given jurisdiction to the courts of the United States in only a limited class of actions, and had provided that in all others the suits must be brought in the courts of the proper state, the act of 1875 would have extended the jurisdiction of the courts of the United States to all suits by or against such corporations when the value of the matter in dispute exceeded $500.

The acts of incorporation made no provision for the removal to the courts of the United States of suits begun in a state court. The act of July 27, 1868, c. 255, § 2, (15 St. 227,) now section 640 of the Revised Statutes, did, however, give authority for that purpose in suits brought against the company in a state court 'upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the constitution, or of any treaty or law of the United States.' If all suits by or against, and all defenses by, a federal corporation necessarily arise under the laws of the United States 'because the charter of incorporation not only creates it, but gives it every faculty which it possesses,' why require the corporation, when asking for a removal, to cause an oath to be filed with its petition that it has a defense in the suit which arises under the constitution or laws? If, 'because the power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter a law of the United States,' every suit by or agains, and every defense to such a suit by, a federal corporation must arise under the laws of the United States, why require it to set forth in its petition for removal that its defense does arise under such a law? If such a corporation cannot 'have a case which does not arise literally, as well as substantially, under the law,' what is the necessity for saying more than that it is such a corporation?

The act of 1868 (section 640) related specifically to this class of corporations and this class of suits, and it shows distinctly that the words 'arising under the laws of the United States' were there used in a restricted sense. I see no evidence of any intention by congress to use them in any other sense in the act of 1875, when applied to the same kind of suits and to the same kind of corporations.