where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

Section 2 of the act provides in part as follows:

"That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, ** * * of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district."

In this last section the sentence "of which the Circuit Courts of the United States are given original jurisdiction" refers to the general grant of jurisdiction contained in section 1, and not to the particular court in which the action must be brought according to the terms of the last part of said section. Mexican National R. R. Co. v. Davidson, 157 U. S. 201, 208, 15 Sup. Ct. 563, 39 L. Ed. 672. But those decisions of the Supreme Court which say that a case cannot be removed to the Circuit Court, unless it could have been commenced therein, refer to the particular Circuit Court to which removal is sought. In Matter of Dunn, 212 U. S. 374, 384, 29 Sup. Ct. 299, 301, 53 L. Ed. 558, it is said:

"The right to remove under the statute depends upon whether it could originally have been brought in the Circuit Court of the United States. Traction Co. v. Mining Co., 196 U. S. 239, 245 [25 Sup. Ct. 251, 49 L. Ed. 462]; Cochran, etc., v. Montgomery County, 199 U. S. 260 [26 Sup. Ct. 58, 50 L. Ed. 182]. The question is then whether the United States Circuit Court for the proper district (Northern district of Texas) would have had jurisdiction of a suit commenced in that district by the plaintiffs against the railway company and the two individual defendants." In re Winn, 213 U. S. 458, 464, 29 Sup. Ct. 515, 53 L. Ed. 873.

This case having been commenced in the district court for Ramsey county in the state of Minnesota, the proper district within the meaning of the provision of section 2 above referred to was the district of Minnesota, and that division therein in which the county of Ramsey is situated. Act of March 3, 1887, c. 373, § 3, 18 Stat. 471, as amended by Act of March 3, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 511); Act of Congress April 26, 1890, c. 167, 26 Stat. 72 (U. S. Comp. St. 1901, p. 374), relating to the district of Minnesota. If it could not be removed to the Circuit Court for this district it could not be removed at all. In re State Insurance Co., 18 Wall. 417, 21 L. Ed. 904. The jurisdiction of the national courts depends in this case not upon diverse citizenship, but upon the claim that it is a suit arising. under a law of the United States, namely, the Employer's Liability Act of 1908. By the terms of section 1 of the Act of 1887, if the action were to be brought in a Circuit Court of the United States, it could only be brought in the Circuit Court of the state of Wisconsin, in the district where the defendant resides. It could not have been brought originally in the Circuit Court for the district of Minnesota. Macon Grocery Co. et al. v. Atlantic Coast Line R. R. Co. et al. (January 17, 1910) 215 U. S. 501, 30 Sup. Ct. 184, 54 L. Ed. And when brought in a court of the state of Minnesota it could not be removed to the Circuit Court for the district of Minnesota. Ex parte Wisner, 203

U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; dissenting opinion of Harlan, J., in the case of Macon Grocery Co. v. Atlantic Coast Line R. R. Co., above cited. If the plaintiff had, without in any way recognizing the jurisdiction of the Circuit Court, appeared specially therein and moved to remand the case that motion would have been granted. The defendant, however, claims that the plaintiff has waived his right to remand and has consented to try the case in this court. It is settled that, where there is in fact a controversy between citizens of different states, the parties can confer jurisdiction upon a particular Circuit Court, although that is not the Circuit Court of the residence of either the plaintiff or the defendant. Western Loan Co. v. Butte & Boston Mining Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101. In that case it was held that the defendant company waived the objection that it had been sued in the wrong district.

It has also been held that where a defendant has been sued in a state court, in a district in which he does not reside, by removing the case into the United States Circuit Court sitting in that district he waives his right to have the case brought in the district of his residence. In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904. It was also held in that case that the plaintiff having followed the suit into the Circuit Court, and having there filed an amended petition and signed a stipulation giving time to the defendant to answer, and having entered into successive stipulations for a continuance of the trial in that court, had thereby consented to accept its jurisdiction. The same thing was also held in the case of Kreigh v. Westinghouse & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984. Section 1 of the Act of 1887 gives jurisdiction to the Circuit Court (1) over cases involving federal questions, and (2) over controversies between citizens of different states. It provides that cases of the first class can be brought only in the district of the defendant, and cases of the second class only in the district of the plaintiff or the defendant. Where there is a controversy between citizens of different states, they can consent to try the case in a district other than the district of either the plaintiff or the defendant. It necessarily follows that where there is a case which involves a federal question, they can agree to try it in a district other than that of the defendant.

The facts relied upon in this case to show such a consent are these: A petition and bond for removal were filed in the state court on the 6th of January, 1910, and on the same day an order of removal was made by the judge of that court. The record, however, was not filed in this court until the 18th day of February, 1910. On February 5, 1910, the plaintiff gave notice to the defendant that it would on the 9th day of February take the deposition of a witness for the plaintiff, on the ground that such witness was about to depart from the state. This notice was signed, "Barton & Kay, Attorneys for Plaintiff." The deposition was taken on the day named before a notary public, and was by him returned with the notice and filed in this court on the 11th day of February. On the same day the plaintiff gave notice of a motion. to remand the case to the state court. The notice for the taking of the deposition is headed, "United States Circuit Court, District of Minnesota, Third Division," and it is this fact upon which defendant relies

to show that the plaintiff has waived his right to have the case remanded.

It is important to notice that the petition stated no ground for removal. It was defective on its face. Moreover, it affirmatively appeared from the petition and the complaint, which by the petition was made a part thereof, that the case should be remanded, for it was shown that the right of removal was based upon the existence of a federal question, and that both the plaintiff and the defendant were residents of the state of Wisconsin. When the petition does state upon its face facts which show that the case is removable, the filing of the petition in the state court with the proper bond deprives that court of jurisdiction, and at once confers jurisdiction on the Circuit Court, even before the record is filed therein. R. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; Traction Co. v. Mining Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462. But where the petition states no ground for removal, the state court is not deprived of its jurisdiction, and the mere filing_of such a petition cannot confer jurisdiction upon the Circuit Court. See Donovan v. Wells-Fargo Co., 169 Fed. 363, 94 C. C. A. 609, 22 L. R. A. (N. S.) 1250. Nor can an order of the judge of the state court confer such jurisdiction upon the national court. In re State Insurance Co., 18 Wall. 417, 21 L. Ed. 904. Such an order is not necessary where the removal is proper. Kern v. Huidekoper, 103 U. S. 485, 490, 26 L. Ed. 354. At the time the notice relied upon was given this court not only did not have jurisdiction of the case, but had not taken any steps to assert such jurisdiction; and while the notice was entitled in this court, yet under the circumstances, this was not such an act as showed unequivocally the purpose of the plaintiff to waive his right to have the case remanded when the record was filed here. The case does not really belong in this court.

There is another ground on which the motion must be granted. While the petition alleges that the case is one arising under the laws of the United States, the only facts appearing are that it is a case which comes within the Employer's Liability Act of 1908. But there is no statement in the complaint, answer, or petition that there is any dispute between the parties as to the construction or effect of that act. The fact that the plaintiff may base his right to recover thereon is not sufficient to justify a removal. Nelson v. Southern Ry. Co. (C. C.) 172 Fed. 478, and cases therein cited.

The motion to remand is granted.

Ex parte LI DICK.

(Circuit Court, N. D. New York. March 16, 1910.)

1. ALIENS (§ 53*)-"ENTRY IN VIOLATION OF LAW"-DEPORTATION.

Failure of an alien to enter at a port of entry and submit to examination and inspection and entering surreptitiously is an "entry in violation of law," so that an alien so entering is found in the United States in violation of the Immigration Act Feb. 20, 1907, c. 1134, § 36, 34 Stat. 908 (U. S. Comp. St. Supp. 1909, p. 466), and is subject to deportation. [Ed. Note.-For other cases, see Aliens, Dec. Dig. § 53.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. ALIENS (§ 54*)-DEPORTATION-PORT OF RETURN.

Immigration Act Feb. 20, 1907, c. 1134, § 35, 34 Stat. 908 (U. S. Comp. St. Supp. 1909, p. 466), provides that the deportation of aliens arrested within the United States after entry, and found to be illegally therein, shall be to the trans-Atlantic or trans-Pacific ports from which such aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which such aliens embarked for such territory. Held that, where aliens come to the United States by sea from trans-Atlantic or trans-Pacific ports, such section fixes the place, on their illegal entry, to which they shall be returned, namely, to the trans-Atlantic or trans-Pacific port from which they embarked for the United States or contiguous territory, regardless of their native country or the country of their former residence.

[Ed. Note. For other cases, see Aliens, Dec. Dig. § 54.*]

3. ALIENS (§ 18*)-REGULATION-ADMISSION AND REJECTION-DEPORTATION. Congress has power to regulate and control the admission, rejection, and deportation of aliens.

[Ed. Note. For other cases, see Aliens, Cent. Dig. §§ 70-72; Dec. Dig. § 18.*]

4. ALIENS (§ 32*)—IMMIGRATION ACT-APPLICATION TO CHINESE.

Immigration Act Feb. 20, 1907, c. 1134, § 43, 34 Stat. 911 (U. S. Comp. St. Supp. 1909, p. 469), providing that it shall not repeal, alter, or amend existing laws relating to immigration or exclusion of Chinese or of persons of Chinese descent, is to be construed in connection with the Chinese exclusion laws, so that a Chinese person entering the United States surreptitiously and without right to enter may be deported in accordance with the regulations of the Department of Commerce and Labor under the immigration act, and is not entitled to trial and examination before a justice, judge, or commissioner under the exclusion laws.

[Ed. Note. For other cases, see Aliens, Dec. Dig. § 32.*]

Li Dick seeks discharge on writ of habeas corpus claiming that he is illegally held and deprived of his liberty on a warrant of deportation made January 29, 1910, by the Acting Secretary of Commerce and Labor commanding John H. Clark, Commissioner of Immigration, to return said Li Dick to "the country whence he came." Writ dismissed.

See, also, 174 Fed. 674.

Meyer Greenberg, for petitioner.

H. E. Owen, Ass't U. S. Atty.

RAY, District Judge. The warrant of deportation, signed by the Acting Secretary of Commerce and Labor, made January 29, 1910, states that from proofs submitted to him, such secretary, after due hearing before Immigrant Inspector H. Edsell, held at Malone, N. Y. (Malone being a port of entry established by law), he has become satisfied "that Li Dick, alien, who landed at the port of Vancouver, B. C., per S. S. Empress of China, on the 26th day of September, 1909, is in this country in violation of the act of Congress approved February 20, 1907 [Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1909, p. 447]), to wit: That the said alien entered the United States in violation of section 36 of the above act, and rule 24 of the immigration regulations, and without being inspected under any of the various provisions of the said act" and that the period of three years after landing has not elapsed. The warrant

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

then commands the commissioner of immigration "to return the said alien to the country whence he came at the expense of the steamship importing him"; also "authority is granted for the detail of an officer or employé to take charge of this alien and convey him to Vancouver, B. C., for deportation, the expenses involved, including services of an attendant to assist in delivery, at a nominal compensation and expenses both ways being authorized payable from the appropriation expenses of regulating immigration, 1910."

The evidence annexed to the return establishes that Li Dick, a Chinese alien, was apprehended and taken into custody on or about the 22d day of October, 1909, at or near Utica, N. Y., as one who had entered the United States surreptitiously and in violation of our immigration laws and rules and regulations a short time before. October 25, 1909, a warrant was duly issued which is set out in full in Ex parte Li Dick (D. C.) 174 Fed. 674, 675, and the case was fully inquired into, and all forms of law were complied with. Pend- . ing investigation Li Dick swore out a writ of habeas corpus which was disposed of as set forth in the report of that case, and the writ was dismissed. As this court indicated that Li Dick, if deported, might return and apply for admission on the ground he had obtained a commercial status here prior to his departure for China late in 1908 or early in 1909, and his return and entry to the United States in violation of said immigration laws, the Secretary of Commerce and Labor prior to closing the case fully investigated that question so as not to do a vain thing. Li Dick has told different and conflicting stories in regard to his being in the United States, and his going and coming. It is evident that much perjury has been committed by Li Dick and in his behalf, but it is not difficult from the evidence to find the truth to be that Li Dick is a Chinese alien, and one not entitled to be or remain in the United States or to go and come freely. He was connected with a firm of Chinese merchants at Newark, N. J., prior to his going to China in the latter part of 1908, or early in 1909, but on his departure he made no effort to arrange matters so as to make his return easy, assuming he was a Chinese merchant, and I think the evidence discloses that he had no such status. September 26, 1909, he landed at Vancouver, B. C., which is foreign territory contiguous to the United States, from steamship Empress of China, having embarked at a port in China for such foreign contiguous territory, intending to pass through Canada and thence surreptitiously into the United States without examination or inspection, and not at a port of entry, and hence in violation of our immigration laws, rules, and regulations. This he did, coming in by automobile in the night, in company with other Chinese aliens who were entering in the same way.

Section 36 of the immigration laws (Act Feb. 20, 1907), provides: "Sec. 36. That all aliens who shall enter the United States except at the seaports thereof, or at such place or places as the Secretary of Commerce and Labor may from time to time designate, shall be adjudged to have entered the country unlawfully and shall be deported as provided by sections twenty and twenty-one of this act: Provided, that nothing contained in this section shall affect the power conferred by section thirty-two of this act upon the commissioner general of immigration to prescribe rules for the entry and inspection of aliens along the borders of Canada and Mexico."