T. Dye, General Attorney," with the seal of the corporation attached.

Messrs. CRAIG & CRAIG, for the appellee, now move the court to dismiss the appeal on the ground the appellant corporation does not appear to have had its corporate name attached to the appeal bond by any person having authority to sign the same.

SCHOLFIELD, J.: The bond appears to have been executed under the seal of the corporation. This raises the presumption that the person using the seal had authority to do so. There is no attempt to impeach the authority, nor is it claimed the seal of the corporation has been improperly used.

Motion denied.

RAE

v.

GRAND TRUNK RAILWAY Co.

(Advance case, Michigan, November, 1882.)

It is no longer necessary to take advantage of the want of the requisite citizenship by plea in abatement. If this or any other defect of jurisdiction appears upon the trial, it is the duty of the court upon its own motion to stop the proceedings and dismiss the suit.

An amendmemt to the declaration, designed to raise a question "under the constitution and laws of the United States," and thereby to create a case cognizable by the circuit court, irrespective of the citizenship of the parties, will not be permitted unless it appears that it will be likely to avail the plaintiff. A state statute requiring railroads to draw the cars of other corporations as well as their own, at reasonable times and for a reasonable compensation, to be agreed upon by the parties or fixed by the railroad commissioner, does not conflict with the constitutional provision that Congress shall have power to regulate commerce between the states.

ON motion to dismiss.

This action was brought by a car-coupler in the employ of defendant to recover for personal injuries sustained by him in coup

fact, was approved by the court from which the appeal was taken, it will be presumed there was before that court sufficient evidence of the authority of the attorney to execute the bond in behalf of his principal. Ibid.

In Cromwell v. March, Breese, (Beecher's ed.) 326, a supersedeas bond was executed by "Murray McConnel, attorney for the plaintiff." The supersedeas was quashed for the reason it did not appear that McConnel was authorized to sign the bond as attorney. But it was held in Campbell v. The State Bank, 1 Scam. 423, where a supersedeas bond purported to have been executed by a person as attorney in fact, in the name of his principal, and the authority of the attorney did not appear, this court would presume that the attorney had authority to exccute the bond unless his authority was questioned by affidavit.

ling two freight cars at the Grand Trunk Junction in this city, one of which belonged to the defendant and the other to some other road, being what is termed a "foreign car." This foreign car differed in construction from those used by the defendant, in having what is known as a "platform dead-wood," and, it was claimed, was not only much more dangerous in its original construction, but was out of repair, and that defendant's inspectors were guilty of negligence in permitting it to pass over the road. The declaration described the plaintiff as a resident and a citizen of the eastern district of Michigan, and the defendant an alien. Upon the trial, however, it appeared that the plaintiff himself was also an alien, and the defendant immediately moved that the action be dismissed for want of jurisdiction.

D. E. Prescott and John D. Conely, for plaintiff.

H. H. Swan and Henry Russell, for defendant.

BROWN, D. J.-That this court has no jurisdiction of controversies between aliens, either under the judiciary act of 1789 or the act of 1875, is admitted. Prior to act of 1875, however, advantage could be taken of the want of requisite citizenship only by plea in abatement; if the defendant pleaded to the merits the jurisdiction was admitted. Smith v. Kernochan, 7 How. 198; Sheppard v. Graves, 14 How. 505; De Sobry v. Nicholson, 3 Wall. 420. While the jurisdiction of the circuit courts is considerably enlarged by the the first section of the act of 1875, and apparently extended to the utmost constitutional limit, section 5 vests these courts with a summary power to stop proceedings and dismiss a suit, whenever it shall appear that it does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that the parties to such suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable by such court. The salutary nature of this provision is not open to question. It is notorious that claims have been enlarged or collusively assigned to non-resident plaintiffs and fictitious domiciles established, for the express purpose of clothing the Circuit Court with jurisdiction of cases which had no proper place upon its dockets. Frequently this fraud upon the court passed unundiscovered until the trial had been begun, and it was too late to take advantage of it. This section was admirably designed to strike at the root of these covert attempts to confer jurisdiction. While it has been the practice in this district, even since the act of 1875, to plead the want of proper citizenship in abatement, it is clear, from the opinion of the Supreme Court in Williams v. Nottawa, 104 U. S. 209, that this is no longer necessary, and that it is the duty of the court, of its own motion, to dismiss the suit the moment the want of jurisdiction is made evident. Thus, if it should appear that the plaintiff and defendant were both aliens, or citi

zens of the same state, or that the plaintiff at the time suit was commenced, must have known that the amount of his recovery would be less than $500, I apprehend it is the duty of the court to dismiss; although if he had sued in good faith to recover more than $500, the fact that the verdict for a less sum was obtained, would not deprive the court of jurisdiction, and would only affect his right to costs. As it is not disputed in this case that both parties are aliens, the suit must be dismissed.

(Plaintiff thereupon moved for leave to amend his declaration by averring in substance that the defective car belonged to a foreign corporation; that such car was loaded outside of the state, and was in course of transmission through the state to its place of destination. He further averred that there was a state statute in force at the time of the accident which provided that every corporation owning a road in use was at reasonable times, and for a reasonable compensation, to be fixed by the parties or the Railroad Commissioner, compelled to draw the merchandise of another corporation; that since the passing of such statute two decisions have been rendered by the Supreme Court of the state, which held that by reason of said statute the duty of the company in the reception of such car was only to furnish competent inspectors. He further averred that said statute, as construed by said Supreme Court, is in conflict with the provision of the constitution of the United States that Congress shall have power to regulate commerce with foreign nations and among the several states.)

The object of this amendment is evidently an endeavor to raise a question under the constitution and laws of the United States, and thus create a case cognizable by this Court under the first section of the act of 1875. It seems to me that there can be no question that it was the intention of Congress in enacting this section to permit the plaintiff to resort to the Federal courts in every case involving over $500 in amount, and arising under the Constitution or laws of the United States, notwithstanding the defendant may be a citizen of the same state, and thereby to obviate the necessity which had previously existed of suing in the state court, and finally raising the Federal question upon a writ of error from the Supreme Court of the United States to the Supreme Court of the State. Sawyer v. Concordia, 12 Fed. Rep. 754.

Whether, if this amendment had been originally incorporated into the declaration, it would have raised the Federal question, it is unnecessary to decide, for I am clearly of the opinion that where the discretion of the court is invoked to permit such an amendment, we are at liberty to examine and determine the point whether it be likely to avail the plaintiff. The proposed amendment contains in substance an averment that the Supreme Court of this state has construed a tate sstatute, requiring railroad corporations of this state to draw cars of other corporations, as re

lieving such roads from any further obligation with respect to the running condition of such cars, than to provide competent inspectors to see that they are in order, and that such statute, as so construed, is in conflict with the constitutional provision that Congress shall have the power to regulate commerce with foreign nations and among the several states. But clearly these rulings of the Supreme Court are not constructions of the statute, and hence are not binding upon this court. They are mere definitions of the duties of a railroad corporation receiving cars which they are compelled to transport under the statute. This is a ruling upon a general question of law, and not obligatory upon this Court. To construe a statute or other writing is to determine the meaning of the words used. It is obvious that the Supreme Court was not called upon to do this in the cases referred to.

And, again, it is equally clear that the statute in question does not conflict with the constitutional provision, since nothing is better settled than than that the state legislatures may lawfully regulate commerce passing through their territory, when such regulations do not conflict with any Congressional enactment. Thus, in the Railroad Co. v. Fuller, 17 Wall. 560, it was held that a state statute requiring railroads to fix their rates for transportation of passengers and freight, and to cause a printed copy of such rates to be posted up at all their stations along the line, was a mere police regulation, and did not conflict with an act of Congress authorizing railroads to receive compensatian for the_transportation of passengers and merchandise over their lines. It was stated by Mr. Justice Swayne to be such an act as forms "a portion of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves." See, also, C., B. & Q. R. Co. v. Iowa, 94 U. S. 155; Munn v. Illinois, 94 U. S. 113; Sherlock v. Alling, 93 U. S. 99-104.

In all such cases respecting commerce between different states the state legislatures may act, and their statutes are valid so long as Congress does not see fit to legislate upon the subject, and supersede the statutes of the state by enactment of its own.

The motion for leave to amend must be denied, and the case dismissed, with costs.

THE CAPE MAY AND SCHELLENGER'S LANDING R. R. Co.

v.

THE CITY OF CAPE MAY.

(35 New Jersey Eq. Reports, 419.)

There can ordinarily be no judicial restraint or interference with municipal corporations in the bona fide exercise of powers, legislative or discretionary in their nature, provided private rights are not violated.

But when the corporation has fulfilled its legislative functions, and exercised its legislative discretion, and is about to carry its legislation into effect, if vested rights are violated, or irreparable wrong will be inflicted, the courts may intervene.

The repeal of an ordinance will not operate to disturb private rights vested under it.

On application for injunction, heard on bill, answer and order to show cause.

Mr. S. H. Grey, for complainants.

Mr. Peter L. Voorhees, for defendants.

VAN FLEET, V. C.-This is an injunction bill. The complainants seek to have the common council of the city of Cape May prohibited from passing a certain ordinance. On the 21st day of May, 1881, an ordinance was regularly passed and approved, authorizing the complainants to construct a horse railroad, with the necessary turnouts, through certain streets of Cape May. The complainants, under the authority thus given, proceeded to construct their road. When the road was nearly completed, an ordinance was introduced repealing portions of the prior ordinance, and revoking the authority given to the complainants to use certain streets, in the construction of their road. This ordinance has been read a second time, and is about to be put on its third reading and submitted to a final vote. The complainants ask that the common council be enjoined from passing it. It is not averred, or shown, that the city authorities intend, in the event that the repealing ordinance is passed and takes effect, to order the track of the complainants removed, or to tear it up. The bill simply alleges that unless the common council are restrained, they will pass the ordinance. Under the provisions of the charter of Cape May, before an ordinance can take effect as a law, it must be passed by the common council, be approved by the mayor, and then be published for two weeks in the newspapers of the city.

Whatever doubts may have before existed, respecting the power of the courts to control the acts of municipal corporations, they seem now to be at rest, and the line defining in what cases they