APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Styling himself the plaintiff, and declaring that he proceeded officially on behalf of the State, Allen J. Seney, prosecuting attorney, instituted the original proceeding against Swift & Company and The Northern Refrigerating Company, in the Court of Common Pleas for Lucas County, Ohio. He charged that those companies were parties to certain agreements and transactions in respect of stored pork products denounced by the Valentine Anti-Trust Law and the Smith Cold Storage Law, and prayed for an order restraining delivery of the products to Swift & Company, for a receiver, and for an injunction forbidding further unlawful acts.
In due time, alleging that the controversy was solely between it and Allen J. Seney, prosecuting attorney, and complete determination could be had without the presence of The Northern Refrigerating Company, Swift & Company asked removal of the cause to the United States
District Court. Shortly stated, the petition set up the following grounds:
1. The controversy is controlled by, and necessarily involves, the Constitution or laws of the United States.
2. Defendant cannot enforce, in the judicial tribunals of Ohio, its equal civil rights as a citizen of the United States.
3. The parties are citizens of different States.
Swift & Company filed the record in the District Court, and later presented an answer and cross petition. Upon the claim that the cause was not removable and the District Court lacked jurisdiction, the relator moved to remand to the state court on the record as it then stood, and neither party offered affidavits or other evidence in support of or in opposition thereto. This motion being overruled, he refused to litigate the merits. Thereafter, evidence was introduced to show that the pork was in interstate transportation, resting under a storage-intransit privilege, and had never been intended for sale in Ohio. A final judgment dismissed the complaint. The court based its conclusion in part upon findings of an adequate affirmative defense.
The relator appealed to the Circuit Court of Appeals, where he relied wholly upon the jurisdictional question. That court said, "The only question now in controversy in this court is whether the court below acquired jurisdiction by the petition for removal," but ruled that the final decree appealed from involved something more than jurisdiction, and sustained the appeal. It considered the three specified grounds for removal, held the first and second unsubstantial, the third sufficient, and affirmed the trial court. 270 Fed. 141. Thereupon, this appeal was taken and the relator again seeks to present the single question upon which he relied below.
After final judgment in the District Court, other defenses being waived, the cause might have come here by direct appeal upon ...