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therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove such suit into the District Court of the United States for the proper district." (Judicial Code of the United States, c. 3, p. 22; U. S. Comp. St. 1916, sec. 1010.)

The motion for removal in this case is sought for solely upon the ground that it is a controversy between citizens of different states, the matter in controversy exceeding, exclusive of interest and costs, the sum of $3,000. In furtherance of this motion, the movant here asserts that the city of Reno is the real party in interest as plaintiff, and, it being a citizen of the State of Nevada, defendant may properly demand removal, being a citizen of California.

Mr. Moon, in his work on the Removal of Causes, concisely states the proposition thus:

"When does the duty of the state court 'to accept said petition and bond' arise? Clearly, if the language of the statute is given any force, it does not arise unless the suit is a removable one and petitioner is entitled to remove it; nor does it arise in any such case until the petition and bond have been made and filed in compliance with the statute. When the case is found to be a removable one, and the conditions precedent to a removal have been performed, then, and not until then, shall the state court 'accept said petition and bond and proceed no further in such suit.'" (Moon on Removal of Causes, sec. 177.)

Mr. Justice Harlan, in speaking for the Supreme Court of the United States in the case of Crehore v. Ohio & M. R. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144, illuminated the subject by the following assertion:

"It thus appears that a case is not, in law, removed from the state court, upon the ground that it involves a controversy between citizens of different states, unless,

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at the time the application for removal is made, the record, upon its face, shows it to be one that is removable. We say, upon its face, because 'the state court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further,' and 'all issues of fact made upon the petition for removal must be tried in the circuit court.' * If the case be not removed, the jurisdiction of the state court remains unaffected, and, under the act of Congress, the jurisdiction of the federal court could not attach until it becomes the duty of the state court to proceed no further. No such duty arises unless a case is made by the record that entitles the party to removal."

*

It is a well-settled principle that a city as a municipal corporation is a citizen of the state within which it exists, within the meaning of the judicial code. (Foster, A Treatise on Federal Practice, vol. 1, p. 134; Vincent v. Lincoln County, 30 Fed. 749; Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766; Loeb v. Columbia Twp., 179 U. S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280.) Another principle which we deem to be established beyond successful controversy is that a suit between an incorporated city and a citizen of another state may be removed for diversity of citizenship. (Ysleta v. Canda, 67 Fed. 6.) The proposition before us may be put thus: If the action is one instituted by the state as the real party in interest against a foreign citizen, the cause is not removable. If the action is one between the city of Reno as plaintiff and a foreign citizen, the cause is removable, and the order prayed for should be entered.

It is the contention of the movant here that inasmuch as the franchise by authority of which they operate their street railroad was granted by the municipal corporation, and inasmuch as the streets over which their street railroad is operated are properly within and under the control of the city of Reno, therefore it is the municipal corporation that is the real party in interest; hence the cause should be removed for diversity of citizenship. It

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is, as a proposition of law, eminently established that a municipal corporation is but the agency by and through which the state exercises its sovereignty in a given locality. The former is the creature of the latter and subject to its dominance and control within constitutional limitations. (City of Reno v. Stoddard and Dunkle, 40 Nev. 537, 167 Pac. 317.)

It is established by almost universal acceptation that the state, acting through its legislature, may exercise complete control and dominance over the streets, avenues, and alleyways of towns, cities, and municipal corporations. This rule has found sanction in the expression of courts in various proceedings and for many purposes. We find it asserted to permit public service corporations to lay pipes and wires. (St. Paul v. Chicago R. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184; Hodges v. W. U. Tel. Co., 72 Miss. 910, 18 South. 84, 29 L. R. A. 770; Portland R. Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299; San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 26 Sup. Ct. 261, 50 L. Ed. 491; 13 R. C. L. 163.) And where it was deemed necessary to destroy a public highway for the establishment of other public works. (Heffmer v. Cass, etc., Counties, 193 Ill. 439, 62 N. E. 201, 58 L. R. A. 353.) The rule has been invoked to require a municipal corporation to appropriate money for the maintenance of a public way. (Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446; Simon v. Northrup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171.) It has been upheld where by legislative action the state sought to control certain streets of a city and to exercise that control through commissioners for the purposes of a driveway. (People v. Walsh, 96 Ill. 232, 36 Am. Rep. 135.)

In the case of Cicero Lumber Co. v. Town of Cicero et al., 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155, the court said:

"While it is true that the public highways are for the use of the general public, it is at the same time true that

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the legislature is a representative of the public at large. As such representative, it may grant the use or supervision and control over the highways to a municipal corporation, so long as the highways are not diverted to some use, substantially different from that, for which they were originally intended. * A city or incorporated town, not only bears a property or private relation to the state, but it also bears a political relation thereto. In its political relation, it is merely an agency of the state. The municipal corporations of the state are the mere creatures of the state, and exist by the authority of the legislature and subject to its control. Hence, when a city or incorporated town holds a street for the benefit of the public, it holds it for the benefit of that entire public, of which the legislature is the representative. As the municipality is a mere agent of the state, the legislature can direct the manner in which it shall control the streets within its limits. The property rights and easements, which the municipality has in public streets and ways, are held by it at the will of the legislature. Of course, this statement is subject to the further statement, that such property, as the municipality holds in its private capacity, is as much protected by the constitution as the property of the private citizen. But, so far as it holds property as a mere agency of the government of the state, the constitutional provisions above referred to have no application, because the state can control the agencies created by it for the purposes of government."

Mr. Dillon, in his work on Municipal Corporations, says:

"The plenary power of the legislature over streets and highways is such that it may, in the absence of such constitutional restrictions, vacate or discontinue them, or invest municipal corporations with this authority. Without a judicial determination, a municipal corporation, under the authority conferred by its charter to locate and establish streets and alleys and to vacate the

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same, may constitutionally order a vacation of a street; and this power, when exercised with due regard to individual rights, will not be restrained at the instance of a property owner, claiming that he is interested in keeping open the streets dedicated to the public." (Dillon on Municipal Corporations, sec. 666.)

When the defendant in this action, through its predecessors, secured its franchise for the construction and maintenance of a street railroad on and over the streets and avenues of the city of Reno, it secured this franchise by the authority and grant of the, State of Nevada acting by and through its duly authorized agent, the city of Reno. To the city of Reno was delegated the power to grant the franchise and to pass ordinances in connection therewith. This, however, constituted but a delegation of authority, from the sovereignty of the state. A municipal corporation, it is said, has no powers which are not derived from and subordinate to those of the state. This has been held, even in cases where the municipal corporation had its existence before the state in which it was located became an independent sovereign. (Mt. Pleasant v. Beckwith, 100 U. S. 514, 25 L. Ed. 699; Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. Ed. 1047; Attorney-General v. Lowrey, 199 U. S. 233, 26 Sup. Ct. 27, 50 L. Ed. 167.)

It is stated in the text of Ruling Case Law that the people of a particular portion of a state, by enjoying the privilege of self-government, acquire no vested right therein as against the legislature representing the people of the state. (19 R. C. L. 731.) That the state, acting through its legislature, may exercise supreme control over all streets, alleyways, and avenues, has been declared to be a law in nearly every jurisdiction where the question has been brought before the courts. (Grand Trunk R. R. Co. v. South Bend, 227 U. S. 544, 33 Sup. Ct. 303, 57 L. Ed. 633, 44 L. R. A. n. s. 405; Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312, 104 Am. St. Rep. 156, 2 Ann. Cas. 83; Cummins v. Seymour, 79 Ind.