Barnette v. Wells Fargo Nevada National Bank of San Francisco/Dissent Brandeis
Mr. Justice BRANDEIS, with whom Mr. Justice SANFORD concurs, dissenting.

In my opinion, the decree of the Circuit Court of Appeals should be reversed with directions to the District Court to remand the case to the state court, or this court should, in its discretion, order that copies of all papers in the District Court relating to the removal be filed here, so that we may determine whether the lower courts have properly exercised jurisdiction. Compare order issued February 1, 1926, in No. 10, Whitney v. California, Sup. Ct. Journ. 176.

The determination of the jurisdiction of the courts below is one of the essential functions of this court. Cochran v. Montgomery County, 26 S.C.t. 58, 199 U.S. 260, 270, 50 L. Ed. 182, 4 Ann. Cas. 451. 'On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.' Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 4 S.C.t. 510, 511, 111 U.S. 379, 382 (28 L. Ed. 462); Chicago, Burlington & Quincy Ry. Co. v. Willard, 31 S.C.t. 460, 220 U.S. 413, 419, 55 L. Ed. 521; Baltimore & Ohio R. R. v. City of Parkersburg, 45 S.C.t. 382, 268 U.S. 35, 69 L. Ed. 834. The record must show affirmatively 'the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively, from its averments.' Brown v. Keene, 8 Pet. 112, 115 (8 L. Ed. 885); Hanford v. Davies, 16 S.C.t. 1051, 163 U.S. 273, 279, 41 L. Ed. 157. If the jurisdictional facts appear affirmatively somewhere in the record, the case need not be dismissed merely because the pleadings fail to show them. Robertson v. Cease, 97 U.S. 646, 648, 24 L. Ed. 1057; Realty Holding Co. v. Donaldson, 45 S.C.t. 521, 268 U.S. 398, 400, 69 L. Ed. 1014. Amendment of the pleadings to conform to the facts shown by the record may be allowed either in the lower courts or in this court. Norton v. Larney, 45 S.C.t. 145, 266 U.S. 511, 516, 69 L. Ed. 413. The record before this court, which consists of 742 printed pages and several unprinted documents, includes everything which was before the Circuit Court of Appeals, but not the whole record before the District Court. What parts were omitted does not appear. The essential jurisdictional facts are not shown in the pleadings or elsewhere in the record.

The record in this court shows a bill of complaint to have a conveyance of real estate in Alaska annulled on the ground of duress and to have paid to the plaintiff moneys alleged to have been deposited in the Wells Fargo Nevada National Bank of San Francisco by one Noyes, claiming to act as receiver of a Nevada corporation. These funds are alleged to be the proceeds of a part of the real estate. The complaint is entitled 'Superior Court of the State of California.' The record shows next an answer filed in the federal court for the Northern district of the state. All subsequent proceedings prior to the appeal were had in that federal court. From these facts, it may merely be surmised that the suit was begun in the state court and before answer removed to the federal court. But the record does not contain the petition for removal, nor any of the other papers ordinarily incident thereto. There is no reference to a removal in any order or decree, in any opinion, in the evidence, nor in any other paper or clerk's entry. The complaint did not allege the citizenship of the plaintiff. An amendment to the complaint, filed in the federal court two years later, states that the plaintiff has at all times been a citizen of California. The defendants named are the Wells Fargo Bank and one Noyes; the latter being joined both individually and as receiver appointed 'not lawfully' but an Alaska court for a Nevada corporation. No allegation discloses the citizenship of Noyes. It does not appear anywhere in the record whether an ancillary receiver of the Nevada corporation was ever appointed in California.

A multitude of questions remain unanswered in this state of the record. Thus, we are left to conjecture whether all the defendants joined in the petition for removal,  and if not, by whom removal was sought;  on what ground removal was sought, whether that ground was good in law, and whether it was substantiated by the facts appearing of record;  from what court removal was sought;  what action the court and the respective parties took; and whether, indeed, there was a proper petition for removal filed in time.  On this record it seems to me that this court is without jurisdiction and that the lower federal courts were also. Hegler v. Faulkner, 8 S.C.t. 1203, 127 U.S. 482, 32 L. Ed. 210. As stated in West v. Aurora City, 6 Wall. 139, 142 (18 L. Ed. 819):

'It is equally fatal to the supposed right of removal that      the record presents only a fragment of a cause,      unintelligible except by reference to other matters not sent      up from the state court and through explanations of counsel.'

'There are no presumptions in favor of the jurisdiction of the courts of the United States.' Ex parte Smith, 94 U.S. 455, 456 (24 L. Ed. 165); Bible Society v. Grove, 101 U.S. 610, 25 L. Ed. 847. We may not assume that there was jurisdiction merely because two lower courts have exercised it, apparently without protest.  We may not assume that documents omitted from the appellate record by agreement under equity rule 75 showed jurisdiction. The requirement that jurisdictional facts be affirmatively shown cannot be dispensed with. Compare Hudson v. Parker, 15 S.C.t. 450, 156 U.S. 277, 284, 39 L. Ed. 424. We may not indulge in conjecture as to the ground on which jurisdiction was invoked. If we were at liberty to do so, what appears in the fragmentary record before us would preclude our sustaining jurisdiction. Jurisdiction could not be sustained on the ground of diversity of citizenship, because the citizenship of the principal defendant is not disclosed. Jurisdiction could not be sustained under section 33, Judicial Code, as amended by the Act of August 23, 1916, c. 399, 39 Stat. 532 (Comp. St. § 1015), as a civil suit against 'any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer' (compare Matarazzo v. Hustis (D. C.) 256 F. 882), because there is nothing to show that removal was sought upon this ground, or that the requirements of the statute were complied with (compare Ex parte Anderson, Fed. Cas. No. 349, 3 Woods, 124; Rothschild v. Matthews (C. C.) 22 F. 6), or that there was 'a causal connection between what the officer has done' and his asserted official authority. See Maryland v. Soper, 46 S.C.t. 185, 270 U.S. 9, 70 L. Ed. 449. Jurisdiction could not be sustained on the ground that the proceeding is ancillary, because no receiver of the Alaska bank was appointed in California, nor was its estate being administered there (Mercantile Trust Co. v. Kanawha & Ohio Ry. Co. (C. C.) 39 F. 337; Compare Greene v. Star Cash & Package Co. (C. C.) 99 F. 656), and the ancillary character of the suit furnishes no ground for removal (Gilmore v. Herrick (C. C.) 93 F. 525. Compare Byers v. McAuley, 13 S.C.t. 906, 149 U.S. 608, 618-620, 37 L. Ed. 867; Shinney v. North American Savings & Loan Bldg. Co. (C. C.) 97 F. 9). Jurisdiction could not be sustained on the ground that the case is one 'arising under the * * * laws of the United States,' because the mere fact that the defendant Noyes is the reputed receiver of a state corporation appointed by a federal court is not a ground for removal.  Gableman v. Peoria, Decatur & Evansville Ry. Co., 21 S.C.t. 171, 179 U.S. 335, 45 L. Ed. 220. The record shows no other way in which the case arises under the laws of the United States. There is no actual controversy as to any federal matter. Compare Niles Bement Pond Co. v. Iron Moulders' Union Local No. 68, 41 S.C.t. 39, 254 U.S. 77, 82, 65 L. Ed. 145. 

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