Page:Federal Reporter, 1st Series, Volume 9.djvu/556

BBOCH V, GieSON. &41 �Buitj while on the other the contention is that the status of the parties at the time the application was made must control, This question has never been decided by the supreme court. Though twiee raised in argument before that tribunal it was on each occasion reserved for future consideration, (Ins. Co. v. Pechner, 95 U. S. 183; Bondurani V. Bondurani, 103 U. S. 285,) henee we have to look to other sources for adjudications to aid us in arriving at a correct conclusion. �But on referring to the judgments of the inferior courts we find a conflict of opinion that tends rather to embarrass than to elucidate the problem. They are as wide apart as are the arguments of coun- sel in this case — Mr. Justice Bradley and others holding that a case cannot be removed from a state to a federal court, under the act of 1875, unless the petition for its removal shows that the required diver- sity ot citizenship existed at the commencement of the suit . Houser V. Clayton, 3 Wood, 273; Beede v. Cheeney, 5 Fed. Eep. 388; Tap- ley V. Martin, 116 Mass. 276; Holden \. Ins. Co. 46 N. Y. 1; Ind. R. Co. V. Risley, 50 Ind. 60. Whereas, Mr. Justice Wood and oth- ers hold that under the act the petition, need not aver that the par- ties were citizens of different atates at the time the suit was brought. If it shows the required citizenship when the petition is filed it wiLI be sufficient. Jackson v. Ins. Co. 3 Wood/ 413 ; Curtin v. Decker, 5 Fed. Eep. 385; 33 Ohio. St: 280; Phœnix Life Ins. Co. v. Seattle, 7 Cent. Law J. 398; Dillon, Eemoval of Causes, § 87. �These discordant decisions cannot be harmonized. It is, however, some mitigation to say that the conflict is confined to a difference of opinion touching the construction of the abt of 1875. The contro- versy, thus restricted, is not as broad as the question in this case. We may concede the construction contended for in the line of decision hrst above referred to, to-wit : that a suit cannot be removed under the act of 1875 on the ground of a diversity of citizenship of the par- ties, unless they were citizens of different states at the commencement of the suit; and yet it would not follow that such suit could be removed on that ground after parties had become citizens of the statfe in which the suit is pending. �The reason for this is obvious. The national government is a gov- ernment of defined and limited powers, and cannot lawfully exercise any authority except such as is expressly or impliedly conferred by the constitution. Its judicial powers are especially and specifically enumerated in that instrument. Among others, it is invested with jurisdiotion of all controversies in law and equity between citizens of different states, to execute which congress has, from 1789 to 1876, ��� �