On the thirteenth of October, 1885, Albert S. Rosenbaum brought an action in the superior court of the city and county of San Francisco, in the State of California, against John A. Bauer, treasurer of the city and county of San Francisco. The complaint set forth the issuing of certain bonds, called 'Montgomery Avenue Bonds,' by the board of public works of the city and county of San Francisco, under an act of the legislature of California approved April 1, 1872, (St. 1871-72, c. 626,) entitled 'An act to open and establish a public street in the city and county of San Francisco, to be called 'Montgomery Avenue,' and to take private lands therefor.' The act provided for the creation by taxation of a fund for the payment of interest on the bonds, and of a sinking fund for their redemption; and enacted that, whenever such treasurer should have in his custody $10,000 or more belonging to the sinking fund, he should advertise for proposals for the surrender and redemption of the bonds. The complaint alleged that the plaintiff owned 21 of the bonds, of $1,000 each; that the treasurer had in his hands over $12,000 belonging to the sinking fund; that the plaintiff had exhibited his bonds to the treasurer, and demanded that he advertise for proposals for the surrender of bonds issued under the act; that he refused so to do; and that no part of such bonds had been paid. The complaint prayed for a judgment that the defendant, 'as treasurer of the city and county of San Francisco, be commanded to advertise for the redemption of Montgomery avenue bonds, as in section eleven of the act hereinabove referred to provided.'
Three days afterwards the plaintiff filed a petition for the removal of the suit into the circuit court of the United States for the district of California, on the ground that the plaintiff was a citizen of New York and the defendant a citizen of California. The state court made an order of removal. The record being filed in the federal court, the defendant demurred to the complaint, specifying as a ground of demurrer that the federal court had no jurisdiction of the subject of the action. The case being heard on the demurrer, the court made an order, on the eighteenth of January, 1886, that the cause be remanded to the state court, 'this court having no jurisdiction of this cause in this form.' The plaintiff has brought a writ of error to review that order.
The same act provided that an annual tax should be levied on the property therein mentioned to raise money to pay the coupons annexed to the bonds, and another annual tax to create a sinking fund for the redemption of the bonds, the taxes to be levied in the manner in which other taxes are levied; that is, by the board of supervisors. The same Rosenbaum, being the owner of twenty-one of the bonds, and of eight matured coupons, of $30 each, attached to each bond, each coupon being for six months' interest, the first of them having matured January 1, 1882, brought an action on the twelfth of December, 1885, in the said superior court of the city and county of San Francisco, against the board of supervisors of the city and county of San Francisco. The complaint set forth that there were no funds in the hands of the treasurer applicable to the payment of any of the coupons, and that the plaintiff had demanded of the board that it levy a tax sufficient to pay the coupons, but it had refused so to do. The complaint prayed for a judgment 'against said board of supervisors, commanding them to levy the tax hereinabove mentioned, and to continue to levy said tax from year to year until all the interest upon said bonds, and said bonds themselves, are fully paid.'
On the twenty-first of December, 1885, the plaintiff filed a petition for the removal of this latter suit into the circuit court of the United States for the district of California, on the ground of diversity of citizenship in the parties. The state court made an order of removal. The defendant made a motion in the federal court to remand the case to the state court on the ground of want of jurisdiction by the federal court 'of the subject-matter contained in the complaint.' On the twenty-fourth of May, 1886, the court made an order granting the motion, and the plaintiff has brought a writ of error to review that order.