We will first consider whether the suit is one which arises under the constitution or laws of the United States; for, if it is not, the order to remand was right, so far as the removal upon the application of all the defendants is concerned.
The character of a case is determined by the questions involved. Osborn v. Bank of U.S., 9 Wheat. 824. If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not. Such is the effect of the decisions on this subject. Cohens v. Virginia, 6 Wheat. 379; Osborn v. Bank of U.S., supra; Mayor v. Cooper, 6 Wall. 252; Gold Washing & Water Co. v. Keyes, 96 U.S. 201; Tennessee v. Davis, 100 U.S. 264; Railroad Co. v. Mississippi, 102 U.S. 140; Ames v. Kansas, 111 U.S. 462; S.C.. 4 Sup. Ct. Rep. 437; Kansas Pac. R. Co. v. Atchison, etc., R. Co., 112 U.S. 416; S.C.. 5 Sup. Ct. Rep. 208; Provident Sav. L. Assur. Soc. v. Ford, 114 U.S. 641; S.C.. 5 Sup. Ct. Rep. 1104; Pacific R. R. Removal Cases, 115 U.S. 11; S.C.. 5 Sup. Ct. Rep. 1113.
The questions in this case, as shown by the pleadings, are, (1) whether the city of New York has, under its charter, the exclusive right to establish ferries between Manhattan island and the shore of Staten island on the Kill von Kull; and, if it has, then, (2) whether the defendants have, in law and in fact, interfered with that right by setting up and operating such a ferry. The determination of these questions depends (1) on the construction of the grant in the charter of the city; and (2) on the character of the business in which the defendants are engaged. It is not contended that there is anything either in the constitution or the laws of the United States which takes away the right from the city, if it was in fact granted by the original charter before the Revolution, or which defines what a ferry is or shall be, or provides that enrolled and licensed steam-boats, managed by licensed officers, may be run on the public waters as ferry-boats, without regard to grants that may have been made by competent authority of exclusive ferry privileges; and that is not the defense set up in the answers in this case. The question here is as to the extent of the ancient grant made to the city, not as to the rights of the defendants in the navigation of the waters of the United States irrespective of this grant. It is not pretended that the United States have in any manner attempted to interfere with the power of a state to grant exclusive ferry privileges across public waters between places within its own jurisdiction. No attempt is made by the city to control the use of the licensed and enrolled vessels of the defendants, or their licensed officers, in any other way that by preventing them from running as a ferry between the points named. They may run as they please, and engage in any business that may be desirable, not inconsistent with the exclusive ferry rights of the city. The claim of the city is based entirely on its charter, and it seeks in its complaint to control only that part of the navigation of the public waters in question which is connected with the establishment and operation of ferries between New York and the specified landing-places on Staten Island. Although the prayer for judgment when taken by itself may appear to go further, it must be construed in connection with the cause of action as stated in the complaint, and limited accordingly. The defense is that the defendants are not operating a ferry within the meaning of the charter, or, if they are, that it is not such a ferry as comes within the monopoly of the city. If they are not operating such a ferry, or if they are, and it appears that the monopoly granted to the city does not include ferries between New York and Staten island on the Kill von Kull, they must prevail in the final determination of the suit. The decision of these questions does not depend on the constitution or laws of the United States. There is nothing in the constitution or laws of the United States entering into the determination of the cause, which, if construed one way, will defeat the defendants, or, in another, sustain them.
