
156 U.S. 478 (1895)
ST. LOUIS, CAPE GIRARDEAU AND FORT SMITH RAILWAY COMPANY
v.
MISSOURI ex rel. MERRIAM.
No. 751.
Supreme Court of United States.
Submitted January 14, 1895.
Decided March 4, 1895.
ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.
*481 Mr. John F. Dillon, Mr. W.S. Pierce, and Mr. H. Hubbard for the motion.
*482 Mr. John W. Noble and Mr. M.R. Smith opposing.
MR. JUSTICE SHIRAS delivered the opinion of the court.
This case was submitted on a motion to dismiss the writ of error herein, on the ground that no Federal question was raised in the Supreme Court of Missouri, and that, therefore, we have no jurisdiction to review the judgment of that court.
It is claimed that none of the pleadings in the Supreme Court of Missouri, nor the agreed statement of facts, raised any Federal question. It is admitted that, in the answer of the railway company to the petition for the writ of prohibition, it was averred "that any action by said judge of the circuit court of Stoddard County, or by said court itself attempting to seize out of the possession of this respondent under either of said divisional mortgages, all of said railroads, or any other part thereof, than that expressly named in said divisional mortgages, was and is and must be against the express provisions of both the constitution of Missouri and the Constitution of the United States, providing that no person shall be deprived of property without due process of law, and it is against the express law of the land;" and that, in the answer of Louis Houck, it was averred, "that the relator has no lien upon any part of the railroad beyond or west of Lakeville, and that his efforts to cause and compel this court or the circuit court of Stoddard County to take possession of any part of it beyond Lakeville is in violation of the Constitution of this State and of the United States, and of the law of the land, all of which guarantee that no property shall be taken except by due process of law." But it is said that, so far as Louis Houck is concerned, his answer is immaterial, because he does not appear as a plaintiff in error in this court, and that such part of the answer of the railway company as avers that the action of the judge of the circuit court will be against the Constitution of the United States was stricken out by the court; and as no objection was made or exception taken thereto the answer of the railway company does not raise any Federal question on the record.
*483 On the other side, it is contended that it does clearly appear from the record that the provisions of the Constitution of the United States were relied on by the respondents, and that the questions thus raised were decided against them. It is argued that, even if this court will not take notice of the contents of the petition for a rehearing, in which the protection of the Constitution of the United States was in terms invoked, yet, that, as well by the recitals in the opinion as by the said averments in the answers of the railway company and of Houck, it affirmatively appears that the Federal questions were raised, and that no formal objection or exception to the action of the court in striking out those averments was necessary.
We do not think it necessary to narrowly inquire whether the record formally discloses that the respondents relied upon and pleaded rights under the Constitution of the United States, because we are of opinion that even if it be conceded that the respondents did, in form, invoke the provisions of the Federal Constitution, yet that no Federal question was really raised. The bare averment in the answers of supposed infringements in the proceedings of rights possessed by the respondents under the Constitution of the United States will not alone suffice. As was said in New Orleans v. New Orleans Waterworks, 142 U.S. 79: "While there is in the ... answer of the city a formal averment that the ordinance impaired the obligation of a contract arising out of the act of 1877, which entitled the city to a supply of water free from charge, the bare averment of a Federal question is not, in all cases, sufficient. It must not be wholly without foundation. There must be at least color of ground for such averment, otherwise a Federal question might be set up in almost any case, and the jurisdiction of this court invoked simply for the purpose of delay." And in Hamblin v. Western Land Company, 147 U.S. 531, 532, where the foregoing opinion was quoted with approval, it was said: "A real and not a fictitious Federal question is essential to the jurisdiction of this court over the judgments of state courts."
We think that the Supreme Court of Missouri, in granting the writ of prohibition as prayed for, passed upon and decided *484 no question arising under the laws or Constitution of the United States.
Whether, under the state constitution and laws, the Supreme Court of Missouri possessed the power to grant a writ of prohibition directed to one of the subordinate courts of that State, and what were the legal scope and effect of the writ when granted, were questions for that court to decide, and its judgment in those particulars is not subject to our revision.
The mandatory portion of the writ as granted, commanding the receiver appointed by one state court to turn over the property in his hands belonging to the defendant corporation to the receiver appointed by another did not operate to take away from the defendant its property and bestow it upon a third person. The title to its property continued in the company as before, and that title was no more disturbed or impaired by the judicial order establishing the right of custody to belong to one of two contending receivers, than it was by the original order appointing a receiver. That, in a foreclosure suit, to appoint a receiver is to deprive the defendant of its property within the meaning of the Constitution of the United States, is a novel proposition, and does not, in our view, raise a real, as distinguished from a fictitious, Federal question.
If it be questionable, which we do not admit, whether a receiver can be validly appointed for an entire railroad at the suit of a creditor holding bonds secured by a mortgage whose lien is restricted to part only of the road, that also, in the present case, was a question for the state court to decide, and we cannot be called upon to answer it.
We cannot agree with the contention so earnestly made on behalf of the plaintiff in error, that the Supreme Court of Missouri, by the judgment complained of, adjudicated or passed upon any substantial right of property or dictated in advance to the circuit court of Stoddard County how that court should deal with the rights and claims of the parties before it. As we understand the action of the Supreme Court, it only decided that, as between the conflicting claims of two inferior courts to exercise jurisdiction over the railroad and *485 property of an insolvent railroad company, the court whose jurisdiction first attached was the proper one in which the litigation should proceed. Such a decision would seem to comport with well-settled and orderly principles of procedure.
At all events, we are unable to descry, in the record before us, any denial by the Supreme Court of Missouri of any rights of the plaintiff in error under the Constitution or laws of the United States, and the writ of error is accordingly
Dismissed.
