Page:Federal Reporter, 1st Series, Volume 8.djvu/116

1,02 FEDERAL REFOBTEB. �justice. The federal court is not competent to decide tue controversy between the citizeus of the same state, and therefore in such cases ii can render only partial justice. In this view alone can that most anom- alous, inconvenient, expensive, and embarrassing provision of the aot of 1866 be accounted for, wbereby a suit in which there were two separable oontroversies might be divided — one part remaining in the state court and the other removed to the federal court. Why did congress provide that a suit in which there were inseparable contro- versies should not be removed ? Because the federal court would have been incompetent to hear and determine the inseparable contro- versy between citizens of the same state. And if it had been sup- posed that, where the controversies in the same suit were separable, the federal court would be competent, under the constitution, to give judgment upon both controversies, would congress not have, in the act of 1866, provided that the whole suit should be removed, instead of only a part of it ? Clearly, it seems to me, congress provided for splitting up the suit and removing a part of it, for this reason, and no other : that if the whole suit were transferred the federal court would be incompetent, under the constitution, to hear and determine the separable controversy between citizens of the same state. �If, then, it be not competent for a federal court under the constitu- tion to hear and determine a controversy between citizens of the same state, when blended with and inseparable from a controversy between citizens of different states, how can it be possible, in view of the con- stitutional provision, for a federal court to have jurisdiction of a sep- arate and distinct controversy between citizens of the same state, be- cause it happens to be connected in the same suit with a controversy between citizens of different states ? �It is now settled that the whole suit must be removed under the act of 1876. A part of it cannot be transferred, leaving the remainder in the state cjurt. Hence, if there be, as in this case, two distinct and separate controversies, — one between citizens of the same state and the other between citizens of different states, — how is the federal court to deal with the controversy between the citizens of the same state ? Can it give judgment between them without jurisdiction ? Clearly it cannot split up the suit and remand it as to the controversy between the citizens of the same state, retaining it as to what remains ? Can we dismiss, without prejudice, the suit so far as it relates to the sontroversy between citizens of the same state, and proceed to judg- ment upon the controversy between the citizens of different states? ��� �