(dissenting).
I dissent, because I am of the opinion that the Court below lacked jurisdiction over the subject-matter of the suit.
1. The complaint, ñled in the Superior Court for Whatcom County in the State of Washington, asserts that “The action is authorized by Section 2410, Title 28, United States Code [Annotated]”.
The pertinent subsection of § 2410 reads as follows:
“(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, including the District Court for the Territory of Alaska, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.” [Emphasis supplied.]
2. The appellants, who were the plaintiffs below, concede that § 2410(a) is merely a “consent” statute, and that therefore “jurisdiction of the subject matter must be found independently of it”. In support of this concession, the appellants cite Wells v. Long, 9 Cir., 1947, 162 F.2d 842, 844, in which Judge Healy said:
“The purpose of the statute immediately involved is merely to waive sovereign immunity from suit in certain types of cases, not to confer jurisdiction on courts to hear and determine such cases in the ordinary sense. It presupposes that the court in which such suit is pending or brought has jurisdiction thereof on grounds independent of the statute.” [Emphasis supplied.]
Judge Healy was there considering 28 U.S.C.A. §§ 901-906, the predecessor of § 2410, supra. He continued:
“As already noted, the act gives the United States alone the right of removal to the federal court. Unless the United States invokes the jurisdiction of that court, and it has not done so here, federal jurisdiction can not be predicated merely on the fact that the United States is a party.”
The former § 903 of 28 U.S.C.A., supra, quoted in Judge Healy’s opinion, provided in part that “any such suit brought against the United States in any State court may be removed by the United States to the United States district court for the district in which the suit may be pending.”
I do not think that, by this obiter dictum, Judge Healy intended to say that, if the jurisdictional amount of more than $3,000 were lacking in the suit brought in the State court, by some juridical legerdemain Federal jurisdiction could be conferred by the simple device of having the case transferred to the Federal Court, even though if the suit had originally been brought against the United States in the Federal instead of the State court, the United States District Court would have lacked jurisdiction because of the lack of the required amount. If Judge Healy intended so to hold, however, I cannot go along with such a view. See Paragraph 4, infra.1
3. The appellants concede that “All of the asserted liens were less than the $3,000.00 minimum required for initial federal jurisdiction; therefore the action was filed in the state court.” [Emphasis supplied.]
4. The appellants, however, seem to think that there was some jurisdictional magic in the removal to the Federal Court; for they continue:
*532“However after due service of process the appellee removed it to the District Court below, under authority given by 28 U.S.C.[A. §] 1444, which provides that ‘any action brought, under section 2410 may be removed [by the United States to the district court of the United States for the district and division in which the action is pending].”
For the reasons stated in Paragraph 2, supra, I do not agree with this view. In my opinion, § 1444, supra, is purely and simply a removal statute, and does not of itself independently confer jurisdiction upon the District Court regardless of the jurisdictional amount of more than $3,000, required under 28 U.S.C.A. § 1331. I do not think that it makes any difference at whose instance the case is removed to the Federal Court: the jurisdictional amount must be present.
5. The amounts in controversy in the various claims embodied in the suit as originally brought in the State court cannot be added to meet the jurisdictional requirements, because the claims are not sufficiently related. The appellants themselves point out:
“Those allegations of the complaint bearing on the matter by which the alleged liens were asserted and the titles of the several plaintiffs clouded were common to all of them. But as [io] the nature or state of the ownership there were allegations distinctive to the land of appellants, the Hoods. Although all of the tracts were originally reservation lands, which had been anciently allotted to individual Lummis, those of the non-Hood plaintiffs, it was averred, had come by mesne conveyance into ‘private’ (and non-Indian) ‘ownership’ long prior to the passage of the Act. [Emphasis supplied.]
******
“As to appellants’ lands, however, the complaint charged that the United States claimed that it held an automatic lien under the Act because the lands were in ‘Indian ownership’ of record at its effective date,” etc. [Emphasis supplied.]
In their complaint, the appellants allege that the land was sold to them on November 10, 1925, by means of an escrow deed, approved by John H. Edwards, Assistant Secretary of the Interior, on August 10, 1926 — long after the enactment of 44 Stat. 211, the so-called “Diking Act”, of March 18, 1926.
In Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 589, 59 S.Ct. 744, 748, 83 L.Ed. 1001, Mr. Justice (later Mr. Chief Justice) Stone said:
“It is a familiar rule that when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements. [Cases cited. ] ”
As we have seen, the demands of the Hood and “non-Hood” plaintiffs are decidedly “separate and distinct”, as emphasized in the appellants’ own brief.2
6. Again, we find another statement by Mr. Justice Stone emphasizing the strict construction to be given to this type of statute. In the leading case of Healy v. Ratta, 1934, 292 U.S. 263, 269-270; 54 S.Ct. 700, 703, 78 L.Ed. 1248, he said:
“From the beginning suits between citizens of different states, or involving federal questions, could neither be brought in the federal courts nor removed to them, unless the value of the matter in controversy was more than a specified amount. * * * The policy of the statute calls for its strict construction.” [Emphasis supplied.]
*5337. Nor can it be said that 28 U.S.C.A. § 1353 gives the District Court jurisdiction in this case. That section is in part as follows:
“1353. Indian allotments. The district courts shall have original jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any Act of Congress or treaty.”
The appellants here are not claiming under any Indian allotment, but by virtue of their “private ownership” of the land in question, acquired by means of a “bid” from them, accepted by the Superintendent of the Indian Agency, and by a deed approved by the Secretary of the Interior. The appellee claims that the tract was in Indian ownership, but concedes that the appellants are “holding title to [the] land in ‘white ownership’ ”. There is, accordingly, no claim here by any person “in whole or in part of Indian blood to any allotment of land”. Neither party here invokes § 1353.
8. Finally, the majority opinion asserts that “The fact that the United States did remove and affirmatively sought to foreclose these liens by counterclaim establishes conclusively the interest of the United States here.”
The difficulty with this contention, however, is that the jurisdiction of a Federal court in a case of this kind is determined by the complaint, and not by subsequent pleadings.
In Mosher v. City of Phoenix, 1932, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L.Ed. 148, Mr. Chief Justice Hughes said:
“There is no diversity of citizenship, and jurisdiction depends upon the presentation by the bills of complaint of a substantial federal question. Jurisdiction is thus determined by the allegations of the bills and not by the way the facts turn out or by a decision of the merits.” [Emphasis supplied.]
Again, in Bell v. Hood, 1946, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90 L.Ed. 939,
Mr. Justice Black used the following language:
“Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. For to that extent ‘the party who brings a suit is master to decide what law he will rely upon, and * * * does determine whether he will bring a “suit arising under” the * * * [Constitution or laws] of the United States by his declaration or bill.’ [Case cited.]” [Emphasis supplied.]
For the above reasons, I believe that the District Court lacked jurisdiction over the subject matter of the suit. The case should be remanded to the Court below, with instructions to dismiss the action.
. See also the concise and lucid statement of Chief Judge Uederle in Haldeman v. United States, D.C.Mich.1950, 93 F.Supp. 889, 890; the well-reasoned opinion of Judge llamley in Seattle Association, etc., v. United States, 1937, 9 Cir., 240 F.2d 903, 908; and Aetna Insurance Co. v. Chicago R. I. & P. R. Co., 10 Cir., 1956, 229 F.2d 584, 586.
. See also Rock Drilling, Blasting, etc., v. Mason & Hanger Co., 2 Cir., 1954, 217 F.2d 687, certiorari denied, 1955, 349 U.S. 915, 75 S.Ct. 604; and Aetna Insurance Company v. Chicago R. I. & P. R. Co., supra, 229 F.2d at page 586.