*193The opinion of the court was delivered by •
Kingman, C. J.:On the 3d of September 1860, plaintiff in error brought his action in the first district court of the Territory of Kansas, sitting in and for the county of "Wyandotte, for the trial of causes arising under the constitution and laws of the United States, by filing his petition therein. The, petition alleges that the plaintiff' was at the time a citizen- and resident of the State of Massachusetts; that part of the defendants were citizens and residents of the Territory of Kansas, part of them citizens and residents of Missouri, and the remainder citizens and residents of New York. The object of the petition was to obtain judgment on certain notes amounting to $843.47, and interest for nearly as much more, and the foreclosure of a mortgage given to secure the payments of the notes, on certain real estate in Wyandotte county. Before the action was determined the court in which it was prosecuted ceased to exist by reason of the admission of Kansas as a State. On the 15th of October, 1869, the original papers, together with copies of certain proceedings in the cause had in the United States District Court for the District of Kansas, were filed in the clerk’s office of the district court of Wyandotte county. On the 10th of March, 1870, certain of the defendants, being then served with process, moved the court to have the case stricken from the files of the court, appearing in court for the purpose of that motion only. This motion was granted. This order is claimed as error, and its reversal sought in this court.
The only question for us to determine, is, whether the case was by proper legal authority on the files of the Wyandotte District Court. With the history of the case, *194from the admission of Kansas into the Union up to the time of its being filed in "Wyandotte county, we have at present nothing to do. That the case was rightfully brought; that it is one cognizable by the Federal Courts, and that the court in which it was brought ceased to exist on the 29th of January, 1861, are conceded propositions. The plaintiff in error claims that the case was removed by virtue of the provisions of the schedule of the constitution in section eight. If this section were self-executing, such a conclusion might and probably would be coi’rect, and we would then have to inquire how far the State authorities had power to control the property and records of the courts of the United States; but the ^section itself does not by its terms profess to make any change in the control of records, papers, etc., of any action, but charges the legislature with that duty by providing, in the latter part of the section, that “the legislature shall direct the mode in which such suits, pleas, plaints, prosecutions and other proceedings, and all papers, records, books, and documents connected therewith may be removed to the courts established by this constitution.” Thus, while the constitution provided the jurisdiction, the mode of transferring cases to this jurisdiction was to be provided by law; and until some action of the legislature there could be no cases transferred on which the jurisdiction granted by the constitution could operate. The legislature in making provision for such change, saw fit to make provision for only such of the cases as were not cognizable in the Circuit and District Courts of the United States: §2, pp. 238-9, Laws of 1861.
The plaintiff in error claims that the exception in the section, as to such cases as are cognizable in the United States Courts, is unconstitutional, and must be disre*195garded. The argument is briefly this: The constitution contemplated the removal of all cases. The legislature in excepting a certain class of cases, disregarded the constitutional requirement, and their action in making the exception should be held for naught. The error in the reasoning is this : In providing for the removal of the records and papers of the courts of the late Territorial Courts to the State Courts, it was competent to do so by different laws and in different ways. They might provide for the removal of a part one year, and another part another year. In the law of 1861 they provided for the removal of a part only. They have done so by the terms of the law, in a way hardly susceptible of misconstruction. That the legislature has not seen fit to make provision for the removal of the residue of the cases, is nd argument against the just construction and constitutionality of § 2, above referred to.
Again, plaintiff in error claims that such a construction should be given to § 2 of the law of 1861 as would except only such cases as were exclusively cognizable in the United States courts. To do this would require the interpolation of a word that would materially affect the status of a large number of cases not contemplated by the legislature. "We find the language positive, and we are not authorized under the pretense of construction to enlarge it or add to it by what would more appropriately be called legislation than construction.
"We are referred to §4 of the act admitting Kansas into the Union to show what jurisdiction congress reserved to the Federal Courts, and by inference what was left to the State Courts. This section neither confers, nor was it possible for congress to confer aDy jurisdiction on the State Courts. That part of it which makes the Supreme Court of the State the successor of the Supreme Court *196of the Territory for.certain very limited purposes, was inserted to obviate certain difficulties that bad previously arisen on the change from a Territorial to a State government in other cases. Congress had already made pro- . vision for the transfer of all cases of a Federal character and jurisdiction from the Territorial Courts to the Federal Courts: § 2, 9 Stat. at Large, pp. 211, 212, and § 8, 10 id., 130. See also Express Co. v. Kountze Brothers, 8 Wall., 343. Until, therefore, some legislation authorizing it, the district court had no rightful control of this case. It had nb legal status in that court, and was properly dismissed, and its action in the premises is affirmed.
All-’the Justices concurring.