Argument for Appellant Independent Steamboat Company.

laws as they now exist. This defence is entitled to a hearing in the United States courts, as it stands, on the Constitution and laws of the United States. It was recently held that Congress had power to regulate navigation, even if it is concerned exclusively with the domestic commerce of the State. United States v. Burlington and Henderson County Ferry Co., 21 Fed. Rep. 331, 339. It would naturally follow that in such a case the Federal courts would enjoin and refuse to enforce any State regulation or grant which would amount to an impediment of the freedom of such navigation.

On behalf of the Independent Steamboat Company, counsel made the following points:

I. The complaint, if construed most favorably to the plaintiffs, charges the defendants with combining to run a ferry between New York and Staten Island, and that they have together run such a ferry, thus infringing on exclusive ferry rights of the plaintiffs. Taking this view of the complaint, for the sake of the argument, we claim that such a state of facts does not change the nature of the action as it affects each defendant, or compel a decision that there is but one controversy in the suit and that such sole controversy affects all the defendants jointly and only jointly. The action, being in tort, is in its nature several, notwithstanding allegations charging combination. Skinner v. Gunton, 1 Wms. Saund. 230; Hutchins v. Hutchins, 7 Hill, 104; Jones v. Baker, 7 Cowen, 445; Boyd v. Gill, 19 Fed. Rep. 145; Wood v. Davis, 18 How. 468; Carneal v. Banks, 10 Wheat. 181, 187; Cameron v. McRoberts, 3 Wheat. 591; Smith v. Rines, 2 Sumner, 338; Case of the Sewing Machine Companies, 18 Wall. 553, 579; Yulee v. Vose, 99 U. S. 539, 545; Barney v. Latham, 103 U. S. 205; Tvedt v. Carson, 13 Fed. Rep. 353; Fraser v. Jennison, 106 U. S. 191; Ayres v. Wiswall, 112 U. S. 187; Kerling v: Cotzhauzen, 16 Fed. Rep. 705; People v. Illinois Central Railroad Co., 16 Fed. Rep. 881; Langdon v. Fogg, 21 Blatchford, 392; Hyde v. Ruble, 104 U. S. 407.

II. Assuming here, for the sake of argument, that the position taken by us in the preceding point is incorrect, and that,

Opinion of the Court.

where the plaintiffs allege that all the parties whom they have made defendant have been guilty of the same wrongful act, the right of removal is taken away if one of the parties defendant is of the same State as the plaintiffs, we now claim that, under the allegations of this complaint, the case is removable, as presenting a controversy wholly with the defendant Independent Steamboat Company.

In the first place, the prayer of the bill for the taking of an account of the sums of money that have been received by any or either of the defendants, and that they be adjudged to pay over the same to the plaintiffs, shows that the plaintiffs do not consider all of the defendants liable to the same extent or. for the same acts, and that they are pursuing them severally. This makes the case removable under the doctrine laid down on page 149 in Boyd v. Gill, above cited.

But if this were not so, still, as to the engineers and masters who have been made parties to this suit, we need hardly urge that the fact of their being citizens of the same State as the plaintiff can in no way take away the right of removal from this defendant. The record clearly shows that they are simply servants and employees of the Independent Steamboat Company, and so nominal or formal parties here. That they were simply nominal parties was admitted in the argument below.

In a suit to enjoin action by a railroad corporation, the president and directors were made parties and their citizenship was interposed as a bar to removal. The court held them to be not necessary or substantial parties in considering the question of removal, but merely nominal parties whose joinder could not prevent removal. Pond v. Sibley, 7 Fed. Rep. 129. For a similar decision where the treasurer and directors of a corporation were made parties, see Hatch v. Chicago, Rock Island & Pacific Railroad Co., 6 Blatchford, 105, 114.

Mr. W. W. McFarland for appellees.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After stating the facts in the language reported above, he continued:

Opinion of the Court

We will first consider whether the suit is one which arises. under the Constitution or laws of the United States; for, if it is not, the order to remand was right, so far as the removal upon the application of all the defendants is concerned.

The character of a case is determined by the questions involved. Osborn v. Bank of United States, 9 Wheat. 737, 824. If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not. Such is the effect of the decisions on this subject. Cohens v. Virginia, 6 Wheat. 264, 379; Osborn v. Bank of United States, 9 Wheat. 737, 824; The Mayor v. Cooper, 6 Wall. 247, 252; Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 201; Tennessee v. Davis, 100 U. S. 257, 264; Railroad Co. v. Mississippi, 102 U. S. 135, 140; Ames v. Kansas, 111 U. S. 449, 462; Kansas Pacific v. Atchison Railroad, 112 U. S. 414, 416; Provident Savings Co. v. Ford, 114 U. S. 635, 641; Pacific Railroad Removal Case's, 115 U.S. 1, 11.

The questions in this case, as shown by the pleadings, are, 1, whether the city of New York has, under its charter, the exclusive right to establish ferries between Manhattan Island and the shore of Staten Island on the Kill von Kull; and, if it has, then, 2, whether the defendants have, in law and in fact, interfered with that right by setting up and operating such a ferry. The determination of these questions depends, 1, on the construction of the grant in the charter of the city; and, 2, on the character of the business in which the defendants are engaged. It is not contended that there is anything either in the Constitution or the laws of the United States which takes away the right from the city, if it was in fact granted by the original charter before the Revolution; or which defines what a ferry is or shall be, or provides that enrolled and licensed steamboats, managed by licensed officers, may be run on the public waters as ferry-boats, without regard to grants that may have been made by competent authority of exclusive ferry

VOL. CXV-17

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privileges and that is not the defence set up in the answers in this case. The question here is as to the extent of the ancient grant made to the city, not as to the rights of the defendants in the navigation of the waters of the United States irrespective of this grant.

It is not pretended that the United States have in any manner attempted to interfere with the power of a State to grant exclusive ferry privileges across public waters between places within its own jurisdiction. No attempt is made by the city to control the use of the licensed and enrolled vessels of the defendants or their licensed officers, in any other way than by preventing them from running as a ferry between the points named. They may run as they please, and engage in any business that may be desirable, not inconsistent with the exclusive ferry rights of the city. The claim of the city is based entirely on its charter, and it seeks in its complaint to control only that part of the navigation of the public waters in question which is connected with the establishment and operation of ferries between New York and the specified landing places on Staten Island. Although the prayer for judgment when taken by itself may appear to go further, it must be construed in connection with the cause of action as stated in the complaint, and limited accordingly. The defence is that the defendants are not operating a ferry within the meaning of the charter, or, if they are, that it is not such a ferry as comes within the monopoly of the city. If they are not operating such a ferry, or if they are, and it appears that the monopoly granted to the city does not include ferries between New York and Staten Island on the Kill von Kull, they must prevail in the final determination of the suit. The decision of these questions does not depend on the Constitution or laws of the United States. There is nothing in the Constitution or laws of the United States entering into the determination of the cause which, if construed one way will defeat the defendants, or in another sustain them.

It remains to consider the removal on the application of the Independent Steamboat Company alone. The suit is against all the defendants jointly, on the allegation that, acting in common, they are all engaged in violating the rights of the

Opinion of the Court.

city by keeping up and maintaining the ferry in question. The averment in the complaint is that the defendant Starin is in reality the person actually operating the ferry, and that he uses the other defendants as his instruments for that purpose. It is conceded that the Independent Steamboat Company does not own the boats running on the route. They all belong to Starin or to companies in which he is the person chiefly interested. The Independent Company was not organized until a few days before this suit was begun. It has a capital of only $5,000, and while it claims to have chartered the boats in question from their respective owners and to be engaged in running them on the route, it does not deny that the other defendants are directly interested in the establishment and maintenance of the ferry, if it be one, which is being operated by and in the name of the company. The only controversy in the case, as stated in the complaint, is as to the right of the defendants to keep up and maintain a ferry on the route in question. Upon one side of that controversy is the plaintiff, and upon the other all the defendants. There cannot be a full determination of this one controversy unless all the defendants are parties. The case as stated in the complaint makes Starin the principal defendant, and the Independent Company only an instrument of his. The object is to prevent him, as well as the others, from using these boats or any others they may own or control in the way these are being used. There is, according to the complaint, but a single cause of action, and that is, the violation of the exclusive ferry rights of the plaintiff by the united efforts of all the defendants. The case is, therefore, within the rule established in Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, 114 U. S. 57; Pirie v. Tvedt, 115 U. S. 41, that a separate defence by one defendant in a joint suit against him and others upon a joint or a joint and several cause of action, does not create a separate controversy so as to entitle that defendant, if the necessary citizenship exists as to him, to a removal of the cause under the second clause of § 2 in the act of 1875.

It follows that the case was properly remanded, and the orders of the Circuit Court to that effect are Affirmed.