STATE OF IOWA V. CHICAGO, Y. &:
s'r.
P. RY. CO.
391
a case removed from a state· court, this clause would .go far towards establishing it. But. as we have seen, the right'of a plaintiff to sue in the district of his residence a non-resident defendant, is recognized in the first section, and the language of section 2 accords fully with the avowed intention of congress in passing the act. I quote from the report of the judiciary committee of the house, made March 17, 1886, on the bill to amend the act of 1875, (House Rec. 2441) as follows: "Thenextt change proposed is to restrict the right to remove a cause from the state to the federal court to the defendant. As the law now provides, either plaintiff or defendant may remove a cause. This was an innovation on the law as it existed from 1789 until the passage of the act of 1875. In the opinion of tMcommittee, it is believed to be just and proper to require the plaintiff to abi.llehis selection of a forum. If he to sue in a state · court when he mig!:ithave brought his suit in a federal court; there would soom to be, ordinarily, no good reason to allow him to move the cause. Experience in the practice under the act of 1875 has shown that such a privilege is often nsed by plaintiffs to o!;)tain unfair concessions and compromises from defendants who are unable to meet the expenses incident to litigation in the federal courts remote from homes."
And in the discussion of tlle bill in the house of representatives on its passage, the intention was expressed to take from plaintiffs the right of removal conferred by the act of 1875, and to limit such right to defendants. 18 Congo Rec. 647. . Iqview of the intention. ,of congress, as expressed in these proceedings and the act itself, it seems impossible to say now that no right of removal exists under the act of 1887. If any case can arise under the statute between citizens of different states for the removal of a cause from a state to a federal court, these cases must come within the rule. A resident pllJintiff suing non-resident defendants invokes the reason upon which the constitutional provision and the acts of congress relating to the juris diction of courts in cases of this kind is said to rest. Upon similar facts the circuit court of CalifornUt reached .a different conclusion in the case cited above; and as no other ca[$e was referred to by it is thought proper to state at some length the reasons upon which the authority of that case is denied. The motions to remand will be overruled. I
STA'I'E OF IOWA '17. CmCAGO,
M. &
ST.
P.Ry. Co.
(OU'ouit (Jowrt, No D. l()11Ja, E. D. December 5,:1887.)
1.
RJ!:){OVAL OF CAUSES-MoTION TO REMAND-WUATCONSIDERED.
,
On motion to remand to the state court. by plaintiff. defendant sought to have the case retained, alleging that the matter in dispute arose under the constitution, laws, or treaties of the United States. Held; that to give the court jurisdiction it must clearly appear from the record that the construction of Bomeprovisions of the constitution, laws, or treaties must be met and decided, before' the issues in the particular cause can be finally disposed of, and the
392
FEDERAL REPORTER.
court will not take jurisdiction because a party asserts it exists, but in deterthat matter will consider all points of law and fact that inhere to that . jurisdictional question. 2. "SA¥E. A suit between a state and a railroad company arose out of the provisions of tbe statutes of a state, the ordinances of a city, and a contract alleged to .exist with the railroad as to the use of certain side tracks in the city, including the power of the railrQad commissioners of the state fix the rate to be paid defendant for switchlng cars of other companies over the tracks in question. Held that, as all that could he said from the record was that if certain conditions of fact were made to appear in. the evidence, a federal question might arise, the record failed' to show jurisdiction in the United States court, and the cause must he remanded. QUESTION. 8. , . A state filed a bill in a state court to enforce an order of the state board of railway commissioners, holding that certain tracks in the streets of a city are, under the laws of the state, and the ordinances of the city, public highways, and not the private property of the defendant company, and that the defend· ant was under obligatIOns to pass over such tracks·the cars of other railway companies when necessary to reach their customers' warehouses, and fixing charges for the switching done by the defendant. The city had given defendant permission to lay its tracks upon certain streets, upon condition that they should be public, and open to the use of the citizens. The case was removed to the federal courts, and plaintiff moved to remand. Held that, in imposing . this condition. and the rate to be. charged, it does not clearly appear that the .state is interferIng with or regulating commerce between the states, in violation of the federal constitution.' . 4, CARRIERS-TERMINAL FACILITIES-ACT OF CONGRESS-STATE LAWS.
Act of congress, February, 4, 1887, § 3, provided that commQn carriers should afford equal facilities for the interchange of traffic between their lines, "but this shall not be construed as requiring any such carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." The defElndant had bound itself by a contrlloct ·with a city to all,ow other roads to by statute that different use its terminal facilities, and a state had companies might have a joint use of such facilities. Held, that the contract with the city, and the rights of the second companies to such j oint use, were not affected by the above act, but the same must be determined. by the statutes of the state.
In Equity. . On motion to remand. A. J. Baker, Atty. Gen., and FoukeM Lyon, for complainant. J. W. Oareyand W. J. Knight, for defendant. SHIRAS, J. From the record in this cause it appears that until within a recent period the defendant company and the Illinois Central Railroad Comp!1ny owned or controlled all the lines of railway entering the city of Dubuque, and that through the construction of side tracks over and along the public streets and alleys, and by obtaining control of certain tracks built, under an ordinance of the city of Dubuque, by the Lumberman Railway Company, the named companies practically controlled the access by railway cars to a large part of the manufactoriea and warehouses of the city. Within the past year or two, the Minnesota & Northwestern and Chicago, Burlington & Northern railway companies have built their lines to or through the city, and the question becomes a practical one, whether these companies could have their cars switch<ld over the tracks owned by the defendant company, so as to reach the manufactories or warehouses of persons desiring to patronize them .. The defendant company established a rate to he charged for
STATE OF IOWA V. CHICAGO,
'M.
& ST. P. RY. CO.
393
i:iwitching such cars, to which exception was taken, and the result was that the state board of railway commissionerswas appealed to; and the board, after considering the subject, rendered an opinion in which it was held that "the sidings of the companies in Dubuque are public highways, and that the companies are required by law to haul over them the cars of all transportation companies or persons at reasonable rates," and the rate to be charged for such service was fixed by the board. Thereupon, under the provisions of Acts 20th Gen. Assem. Iowa, c. 133, a proceeding in equity was brought by the state of Iowa against the railway company, in the district court of Dubuque county, Iowa, for the purpose, of enforcing the decision of the board, from which court the proceeding has been transferred to this court, and it is now sought to have the cause remanded on the ground of want of jurisdiction. The motion to remand presents the question whether it is a removable case,' and as the state is a party, and jurisdiction in the federal court cannot be had by reason of diverse citizenship, it follows that to sustain the jurisdiction it must appear that the case is of a civil nature, wherein the matter in dispute exceeds $2,000 in value, exclusive of interest ana costs, and arises under the constitution, laws, or treaties of the United States. In determining when the supreme court has jurisdiction to review the decision of the highest tribunal of a state, on the ground that it construction of the constitution, laws, or treaties of th'e United States, the supreme court has uniformly held that it must appear from the record that the question arising under the federal constitution, laws, or treaties, was in fact passed upon or necessarily involved in the conclusion reached. In CroweU v. RandaU, 10 Pet. 368, it was said that it was" not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the state court to the cnse." In Bridge Proprietors v. Hoboken 'Co., 1 Wall. 116, the rule is stated to be that "the court must be able to see clearly, from the whole record, that a certain provision of the constitution or act of congress was relied on by the party who brings the writ of error, and that the rigpt thus Claimed by him was' denied." In Brr.w.m v. Colorado, 106 U. S. 95, 1 Sup. Ct. 175, it is said: "Certainly, if the judgments of the courts of the states are to be reviewed here for decisions UpOD such questions, it should be only when it appears unmistakably that the court either knew or ought to have kn'qwn that such a question was involved in the decision to he made." It certainly will not be claimed that the rule is any less strict, when the question is as to the jurisdiction of the circuit court. When it is sought to depr'ive a state court of the right to hear and determine a .causeproperly and rightfully brought therein, by removing the same into the federal court, on the ground that the controversy in its detetmination a question arising under the constitution, laws, or treaties of the United States, it must be made to appear, clearly and unniistakablyfr(jDl the record, that the cause or controversy necessarily, in its determination, involves the cOllsideration and determination of federal question. It is not sufficient for it to appear that such federal
394
9uestion may possibly arise. Jurisdiction to wrest the case. ,if I may use that term, from the state court, carinotexist unless a federal question is certainly involved. If the rec,ordsirriply shows that possibly, during thil' trial" some federal question, may be presented, that will not confer the and entitle the defendant to the right of removal. If ,it were and uporithe showing that a federal question might arise, the case could be broughtinto thecircl!it court ofthe United States; the jurisdiction would then exist, not of the federal question, but of the case; and yet,' upon the trial, the decision might be,rested upon questions of fact or law, not arising under the federal constitution or laws. and thus the state court would have been deprived qf its jurisdiction wrongfully. Thejurisdiction of this court either by original process, or by removal, in the of cases under consideration, depends solely upon the fact that theqontroversy between the parties requires, for Us final determinaof some provision of the constitution, laws, or treaties, tpe United and the application thereof to the facts of the particlil# case, in shch sense that the thus made will materiallyaffect,the upon the controversy between the Unles!! frotu ,record it clearly apadversary pllr,ties to the pears federal must be met and deCided, before the isor ,issues in the particular ('.ausecan befinally disposed of, be said tIl'atthe matter in dispute arises under ,the constitution or laws the United States, within the meaning of the statute. In suoh case, no be had, and the cause must be heard and decidecl in the state court." ' If during t4e trial, in fact a does arise, and is'decidecl adversely to the party claiming the protection of the federal proceedings, carry constitutionodaws, 'the party aggrieved can, by the question from the court of final resort in the state to the supreme court 'United States. ' " , It was on the argument, that as the defendant set forth o,n the recotd ,that a d'efense to'the proceeding' arising under the United ,Siatest this necessarily raised a federal question; .belaws of cause tpe cQuf£.would >be 'required to. ponsider the facts' thus averred,. in order to prel3ented a federal question, and that this' involved of the cause, Whenever the jurisdiction court is chaJlenged ill a given cause, duty to and decide the question, It is notbQund to retain jurissimply because a party aSl:',erts that the same exists, On the conit the duty 9f the court, as already said, to hear and determine'tp.elssue of jqrisdiction thus raised; 'and if in ,a given case is basedullon the.fl.llegation that it presents a question the arising the 90nstitutioll,Qr of the, Unite4 States, then it becomes of to the record,and to ascertain i*'fact, the requires for its determination the detitle, righh imrnunity claimed to arise the 'fedl;lral constitution orlaws, and also whether the priviactul;llly arises under such constitution or lege, or laws. If the nght to hear arid determine a plea to the jurisdiction ex, . · ;" 'f} "
J,.,
.
OF IOW'A'V; emdAQ'O,M. "tST. P. Ri:. CO.
335
ists, and this is not questioned, thenit be that the court musthave the right to consider and determine all the questions of law and fact that inhere in the jurisdictional question,for in no other "'ay can the court properly discharge the duty imposed upon it. In Starin v. New York, 115 U. S. 248,6 Sup. Ct. Rep. 28, it is said: "The character of a case is determined by the questions involved. If from the ques-, tions it appear 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 can. struction, the case will be one arising under the COllstitution or laws of the United 'States, within the meaning of that term as used in the act of 1875; otherwise not." What theil are the questions arising in the controversy? The proceeding itself is one instituted by the state of Iowa under the proact of the state legislature passed for the purpose of provisions 'of vidinga legal method for eriforcing the cOllclusions or orders of the state board of railroad commissioners. The particular order was one made by the commissioners which.in effect holds that certain side and spur tracks,laid dbwn over the streets and alleys of the dty of Dubuqueare, under the laws of the state ofIowa and the ordinances of the city of Dubuque, public highways, and notthe private property of the defendant company , and that, for the reasons set forth in the commissioners' opinion, the defendant company was under legal obligation to pass, over such side and spnr tracks, the cars of other companies, when such passage became necessary in order to enable the othercompanies to reach the factories or warehouses of theircustom(jrs; and the commissioners alsofixed the rates to be charged for the work to be done by the company ,,;hen thus engaged in performing this switching. It is clearly apparent, from ,tl,lis ' brief staten1ent, that the complainant does not base the right asserted and sought to be enforced against the company upon any part of the constitutionorlaws of the United States; but on the contrary, to establish the right, if any such. exists, dependence must be had upon· the state laws 'arid the ordinances of the city of Dubuque, coupled perhaps with principles of generalju'risprudence, not depending for their existupon the federal constitution or laws. The federal ence or question, 'ifahy exists, must be sought, then, 'in the defense pr dcftJnses interpose(i by the defendant, and snbstantially it is claimed that theae-' tion of the commissioners is a vidlation of the federal constitution in that· it is a.tegitlation of interstate fJommerce. , Can it be fairly said that if the state of Iowa, by direct legislative action, or through the power conferred upon the city of Dubuque, has provided railway tracks laid ,down in and over the public streets of t,he city of Dubuque, shall be and remain pUb,lic high open to. the 'lse of every railway coming into Dubuque, that it was thereby interstatecoIllrperce, and exercising a power prohlh.. itedby theJederal constitution? When the state of Iowa, and the city of Dubu'qqe'under its authority, gave permission to the .c(jlll{tany to lay down tracks along certain streets, or to use those already laid
an
396
down, upon condition that such tracks should be public and open to the use of the citizens of Dubuque, how did it regulate interstate commerce, or place any burden, hindrance, or restriction thereon? But it is said that the state, through the agency of its commissioners, is seeking to fix the rate to be charged for the switching required to be done by the defendant, and that thereby interstate commerce is affected and regulated, because the cars thus switched maybe filled with merchandise or other property brought from other states into Iowa, or intended to be carried from Iowa into other states. It will be noted that. the operations of the defendant company, when' engaged as a common carrier of persons or property either wholly in Iowa, or between Iowa and other states, are not in any manner affected or regulated, either as to the mode of carriage, or to the price to be paid, by the order of the commissioners. The argument is that the property conveyed by the other railway companies may form part of the commerce between the states, and that in this way fixing the rate to be charged by the defendant company will affect the rate for the entire transportation. The duty imposed upon the defendant company is that of passing the cars of the other connecting companies over the side and spur tracks in question, all of which are included within the limits of the city of Dubuque, and within the bound; aries of the state of Iowa. Certainly it cannot be said that upon the face of it it clearly appears that by imposing this duty upon the defendant company, and providing the reasonable compensation to be paid therefor, the state is interfering with or regulating commerce between the states. All that is sought to be done, is to fix the rate to be charged by the defendant company for certain work which it has assumed to do, not by reason of its character as a common carrier, but as a consideration which the company agreed to do and perform for the privilege of laying down the side tracks in question. The facts averred in the record do not certainly show that the question of interstate commerce is necessarily involved in the case. If, in fact, such a question should arise and be decided, the defendant's rights in this particular will be fully protected by the right of appeal to the supreme court of the United States. It is also that the action of the commissioners sought to be enforced in this proceeding is in contravention of the last clause of section 3 of the act of congress approved February 4, 1887 ,and known as the "Interstate Commerce Act." In the named section of the p,ct, it is provided that any common carrier subject to the provisions of the act must afford equal facilities for the interchange of traffic between their respective lines, and for the forwarding, receiving, and. delivering of passengers and pr6pel'ty to alld from their several lines, and th()se connecting therewith; and then comes the clause relied on, as follows: "But this shall not be construed as requiring any such commoncarrierto give the use of its tracks or terminal facilities to another carrier engaged in like business.." The meaning of this clause is Clear. It simply declares that the preceding provision of the section shall not be deemed to give one carrier .to use the tracks or terminal facilities of another carrier ,in the
COCHRAN 'II.SHOENBERGER.
397'
like business. It has reference to the effect of the act of congress, and nothing else. If the defendant company, by a contra(,lt with the city of Dubuque, hB.$ bound itself to allow other companies to use part of its tracks or terminal facilities, this clause of theact'of congress does not affect such a contract or the enforcement thereof. So, also, if the state of Iowa has provided by proper statute that different companies may have ajoint or common use of certain terminal facilities, the rights of the several companies to such joint use are not affected by the provisions of the interstate corrlmerce act, but the same must be measured and determined by the statutes of the state. So far as it 'certainly appears from the record in this cause. the questions necessarily involved'in the controversy between the parties grow: out of the provisions of the statutes of the state, of the ordinances of the city of and of the contract alleged to exist on part of the company in regard to the· use of the side tracks in question, including the power of the railroad commissioners to fix the rates to be paid the defendant for switching the cars of the other connecting companies over· the sid l3 tracks in question. It does n.ot certainly appear that in decidillg the issues, it will be necessary to construe or apply any provision oft:he federal constitution or laws. The utmost that can be fairly saidlil that in the trial of the case, if certain conditions of fact are made to a,ppearby the evidence, a federal question or questions may arise. I f so, and if the protection or defense claimed by defendant underfederallaw is adjudged against the contention of the company, it has 8ecured to it,the right of appeal to the supreme court of the United States. , As the record now stands, it does not appear that a federal is necessarily involved, and hence the record fails to show jurisdiction in this court, and the cause must be remanded to the state court.
CoCHRAN
et al.
'II. SHOENBERGER
(Circuit Oourt.
w: D. Penn-8yZIJania.
June 17, 1887.)
PARTITION-ALLOTMENT-IN EQ,UITy-ADVANTAGETO ONlll
2.
In a court of equity, in a case Of partition, such part of the land as in"ay be more advantageous to one of the parties, on account of its proximity to' his other land. or for any other reason, will .beallotted to him if i.t can he. done without injury to the others. SAME-aLLOTMENT-IN EQUITY-ACT PA, APluL 22,1856. . The Pennsylvania act of twenty-second April, 1856, which directs that the allotment shall be made to such ,of the parties as shall, "at the return of 'the rule to accept or r"fuse to take at the valuation." offer the highest price above the valuation retiJrned, was intended to regplate proceedings in partition in the common-law courts, and the orphans' court; but proceedings in a COurt of equity, which are to be moulded to meet the v'arylng equities of tho par· ties, are not controlled by the act. cause of .its contiguity and relation to his
1l.SAME-ALLOTMENT-IN EQUITy-PARTICULAR VALUE TO PARTY.
If one of the parties must have, or ought to have,
.propel1ty, justic.e requires that
aparticular purpartbe..