(dissenting).

I dissent, because I am of the opinion that the Court below lacked jurisdiction over the subject-matter of the suit.

1. The complaint, ñled in the Superior Court for Whatcom County in the State of Washington, asserts that “The action is authorized by Section 2410, Title 28, United States Code [Annotated]”.

The pertinent subsection of § 2410 reads as follows:

2. The appellants, who were the plaintiffs below, concede that § 2410(a) is merely a “consent” statute, and that therefore “jurisdiction of the subject matter must be found independently of it”. In support of this concession, the appellants cite Wells v. Long, 9 Cir., 1947, 162 F.2d 842, 844 , in which Judge Healy said:

Judge Healy was there considering 28 U.S.C.A. §§ 901-906 , the predecessor of § 2410, supra. He continued:

The former § 903 of 28 U.S.C.A., supra, quoted in Judge Healy’s opinion, provided in part that “any such suit brought against the United States in any State court may be removed by the United States to the United States district court for the district in which the suit may be pending.”

I do not think that, by this obiter dictum, Judge Healy intended to say that, if the jurisdictional amount of more than $3,000 were lacking in the suit brought in the State court, by some juridical legerdemain Federal jurisdiction could be conferred by the simple device of having the case transferred to the Federal Court, even though if the suit had originally been brought against the United States in the Federal instead of the State court, the United States District Court would have lacked jurisdiction because of the lack of the required amount. If Judge Healy intended so to hold, however, I cannot go along with such a view. See Paragraph 4, infra. 1

3. The appellants concede that “All of the asserted liens were less than the $3,000.00 minimum required for initial federal jurisdiction; therefore the action was filed in the state court.” [Emphasis supplied.]

4. The appellants, however, seem to think that there was some jurisdictional magic in the removal to the Federal Court; for they continue:

For the reasons stated in Paragraph 2, supra, I do not agree with this view. In my opinion, § 1444, supra, is purely and simply a removal statute, and does not of itself independently confer jurisdiction upon the District Court regardless of the jurisdictional amount of more than $3,000, required under 28 U.S.C.A. § 1331 . I do not think that it makes any difference at whose instance the case is removed to the Federal Court: the jurisdictional amount must be present.

5. The amounts in controversy in the various claims embodied in the suit as originally brought in the State court cannot be added to meet the jurisdictional requirements, because the claims are not sufficiently related. The appellants themselves point out:

In their complaint, the appellants allege that the land was sold to them on November 10, 1925, by means of an escrow deed, approved by John H. Edwards, Assistant Secretary of the Interior, on August 10, 1926 — long after the enactment of 44 Stat. 211 , the so-called “Diking Act”, of March 18, 1926.

In Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 589 , 59 S.Ct. 744, 748 , 83 L.Ed. 1001 , Mr. Justice (later Mr. Chief Justice) Stone said:

As we have seen, the demands of the Hood and “non-Hood” plaintiffs are decidedly “separate and distinct”, as emphasized in the appellants’ own brief. 2

6. Again, we find another statement by Mr. Justice Stone emphasizing the strict construction to be given to this type of statute. In the leading case of Healy v. Ratta, 1934, 292 U.S. 263, 269-270 ; 54 S.Ct. 700, 703 , 78 L.Ed. 1248 , he said:

*533 7. Nor can it be said that 28 U.S.C.A. § 1353 gives the District Court jurisdiction in this case. That section is in part as follows:

The appellants here are not claiming under any Indian allotment, but by virtue of their “private ownership” of the land in question, acquired by means of a “bid” from them, accepted by the Superintendent of the Indian Agency, and by a deed approved by the Secretary of the Interior. The appellee claims that the tract was in Indian ownership, but concedes that the appellants are “holding title to [the] land in ‘white ownership’ ”. There is, accordingly, no claim here by any person “in whole or in part of Indian blood to any allotment of land”. Neither party here invokes § 1353.

8. Finally, the majority opinion asserts that “The fact that the United States did remove and affirmatively sought to foreclose these liens by counterclaim establishes conclusively the interest of the United States here.”

The difficulty with this contention, however, is that the jurisdiction of a Federal court in a case of this kind is determined by the complaint, and not by subsequent pleadings.

In Mosher v. City of Phoenix, 1932, 287 U.S. 29, 30 , 53 S.Ct. 67 , 77 L.Ed. 148 , Mr. Chief Justice Hughes said:

Again, in Bell v. Hood, 1946, 327 U.S. 678, 681 , 66 S.Ct. 773, 775 , 90 L.Ed. 939 ,

Mr. Justice Black used the following language:

For the above reasons, I believe that the District Court lacked jurisdiction over the subject matter of the suit. The case should be remanded to the Court below, with instructions to dismiss the action.

. See also the concise and lucid statement of Chief Judge Uederle in Haldeman v. United States, D.C.Mich.1950, 93 F.Supp. 889, 890 ; the well-reasoned opinion of Judge llamley in Seattle Association, etc., v. United States, 1937, 9 Cir., 240 F.2d 903, 908 ; and Aetna Insurance Co. v. Chicago R. I. & P. R. Co., 10 Cir., 1956, 229 F.2d 584, 586 .

. See also Rock Drilling, Blasting, etc., v. Mason & Hanger Co., 2 Cir., 1954, 217 F.2d 687 , certiorari denied, 1955, 349 U.S. 915 , 75 S.Ct. 604 ; and Aetna Insurance Company v. Chicago R. I. & P. R. Co., supra, 229 F.2d at page 586 .