The motion here presented, namely, to docket this cause in the federal court, and for a writ of assistance, derives its importance not only for the large interests involved in the particular cause, but from the fact that the principles upon which it must be determined necessarily fix the status, as respects federal or state jurisdiction, of all other causes pending in the courts of the late territory of Colorado at the time of its admission, August 1st, 1S76, into the Union as a state. These considerations have induced me to submit the conclusions at which I have arrived to the justice of the supreme court allotted to the circuit, for his judgment thereon.
In examining the question here arising, the legislation of congress in respect to the admission of other territories as states, and establishing federal courts therein on their admission, has been examined, as well, also, as the several judgments of the supreme court as to the effect of such legislation. Florida: 5 Stat. 742, 788, construed in the leading case of Benner v. Porter, 9 How. [50 U. S.] 235; Hunt v. Palao, 4 How. [45 U. S.] 589. Iowa: Webster v. Reid, 11 How. [52 U. S.] 437. Texas: 9 Stat. 1108, construed in Calkin v. Cocke, 14 How. [55 U. S.] 227. Wisconsin: 9 Stat. 567, 233, construed in McNulty v. Batty, 10 How. [51 U. S.] 72. Nevada: 13 Stat. 30, 440, construed in Freeborn v. Smith, 2 Wall. [69 U. S.] 160. Nebraska: Express Co. v. Kountze, 8 Wall. [75 U. S.] 342.
It is not deemed necessary to refer to this legislation, and to these cases, at any considerable length. They demonstrate the absolute necessity, on the erection of a territory into a state, and the admission of the latter into the Union, of legislative provisions by congress and the state as to causes pending in the territorial courts at the time of such admission.
The effect, judicially declared, of the unconditional admission of a territory as a state, and the erection of federal courts therein, and the extension of the laws of the United States over the same, is ipso facto to extinguish the territorial government, and with it the existence of the territorial courts of the general government. In the Florida case Benner v. Porter, 9 How. [50 U. S.] 235, 241, there was a provision in the constitution of the state, as there is in the constitution of Colorado, to the effect that all “territorial officers should hold and exercise their respective offices and appointments until superseded under this constitution.” This was considered by the supreme court as being done to prevent an interregnum, and to have that effect, not by continuing even sub modo the territorial existence, but by making these officers, by the force of the state constitution, and the assent of congress to the admission of the state into the Union, state officers for the time being.
The territorial courts cease, on the admission of the state, to be courts of the territory, for the territorial government is displaced and abrogated; but, by adoption on the part of the state, with the consent of congress, these courts become the provisional and temporary courts of the state.
The act of congress of June 26th, 1S76, in respect to the administration of justice in Oolorado, unmistakably proceeds upon this view. It declares that the laws of the United States shall have force and effect immediately on the admission of the state. It created and established at once federal courts in the state, and makes more specific and careful provisions as to the disposition of pending cases, whether in the supreme court of the United States or in the supreme and district courts of the territory, than had been done by congress in any other instance in providing for a change from territorial existence to that of a state. That act determines what shall be done with “all cases” pending in all the territorial courts, “at the time of the admission of said state into the Union.” Pending cases which might have been brought in the federal courts established by the act, had such courts existed when the cases were commenced, are transferred to the proper federal court, which is declared to be the “successor” of the territorial courts, a term which implies that these courts cease to exist as courts of the general government. All other cases remain and belong to the courts adopted or established by the constitution of the state. Oases of federal jurisdiction may be such by reason of parties, as where the United States or a federal corporation is a party, or because they arise under the constitution and laws of the United States, or because of citizenship, without respect to subject matter.
The federal character of a case must appear in the pleadings, or of record. If the federal character of a case pending at the time of the admission of Colorado thus appears, it belongs to the federal courts, if the case be such, as to subject matter or parties and amount, as that it might have been brought in such federal court if it had been in existence when the suit was commenced. If the federal character of a pending cause does not thus appear, the court in which it is pending may rightfully proceed therein *753after the admission of the state, at least until it is shown to the court that it is one of federal cognizance.
In the present cause the pleadings did not show that it was one of federal character, as there was no averment in the bill of complaint of the citizenship of the plaintiffs. As the cause was in the court and the court was in existence, and the federal character of the cause did not. appear, it follows that the court had jurisdiction to act therein after the admission of the state.
It is contended by the defendant company that the complainants have elected to remain in the state court, and that, having done so, they are bound thereby, in virtue of the common law principle that an election once deliberately made is binding and irreversible. In other words, after the 1st day of August, the plaintiffs could have taken steps to show the federal character of the 'cause, and arrested all further action of that court. Instead of doing this, they invoked the continued exercise of the jurisdiction and powers of that court, and obtained on August [IT]2 an order appointing a receiver, and subsequently [August 21]2 procured an order for a writ of assistance, which was issued. After having, with knowledge of all the facts as to jurisdiction, done this, can they afterwards change the forum, and if so, what limitation in point of time exists, and can it be exercised down to the time of final hearing? It is my judgment, in a case whose federal character does not appear of record, that the party who, with knowledge of all the facts, wishes the case to go to the federal court under section 8 of the act of June 26th, 1876, must take his election before voluntarily invoking the action and power of the court; otherwise he is concluded from afterwards electing to reveal its federal character, and have a transfer by virtue of the last mentioned act.
The case, by his consent and action, has become one belonging to the local court, and can only be removed therefrom, if at all, under the removal acts applicable generally to the transfer of causes from the state to the federal courts. It may be true that the plaintiff can, like other suitors elsewhere, have the benefit of the removal acts, if he can bring his case within them, but it is not necessary to determine this point.
The result of these views is that, as the plaintiffs, after the admission of the state, not only voluntarily submitted to the action of the local court, but invoked it and obtained it, they could not afterwards transfer the cause on affidavits filed with the clerk of that court, in the manner here attempted. The motion to docket the cause in the circuit court must therefore be denied.
[From 9 Chi. Leg. News, 132.]