RAE V. GRAND TRUNK RY. 00.
used to call it before the lefpslature abolished all names,-and I don't think that these defendants can be jointly liame with the corporation in that way. The result of all this is, the demurrer must be 'overruled as to the first count of the complaint, and sustained against the other two counts on the ground that there is a misjoinder of defendants.
RAE V. GRAND TRUNE:
(OirC'ltit Oom't, E. D. MicMgan. November, 1882.)
JURISDICTION-WANT OF-DISMISSAL ON MOTION OJ' CounT.
It is no longer necessary to take advantage of the want of the requisite citizenship by plea in abatement.. If this or any other defect of jurisdiction appears upon the trial, it is the duty of the court upOn its own motion to stop the proceedings and dismiss the suit.
SAME-AMENDMENTS NOT ALLOWABLE.
An amendment to the declaration, designed to raise 8 question" undcr the constitution and laws of the United States,"and thereby to create a case cognizable by the circuit court, irrespective of the citizenship of the parties, will not be permitted unless it appears that it will be likely to avail the plaintiff.
A state statute requiring railroads to draw the cars of other corporations 8S wc)) as their own, at reasonable times and for a reasonable compensation, to be agreed npon by the parties or fixed by the railroad commissioner, does not conflict with the constitutional provision that congress shall have power to late commerce between the states. . )
On Motion to Dismiss. This was an action by a car-coupler in the employ of defendant to recover for personal injuries sustained by him in coupling two freight cars at the Grand Trunk Junction in this city; one of which cars belonged to the defendant, and the other to some other road, being what is termed a "foreign car." This foreign car differed in construction from those used by the defendant, in having what is known as a "platform dead-wood," and, it was claimed, was not only much more dangerous in its original construction, but was out of repair, and that defendant's inspectors were guilty of negligence in permitting it to pass over the road. The declaration described the plaintiff as a resident and citizen of the eastern district of Michigan, and the defendant as an alien. Upon the trial, however, it appeared that the plain. v.14J no.7-26
tiff himself'was also an alien, and the defendant immediately moved that the action be dismissed for want of jurisdiction. D. E. Prescott and John D. Oonely, for plaintiff. H. H. Swan and' Henry Russell, for defendant. BROWN, D. J. That this court has no jurisdiction of controversies between aliens, either under the judiciary act of 1789 or the act of 1875, is admitted. Prior to the aot of 1875, however, advantage could be taken of the want of requisite citizenship only by plea in abatement; if the defendant pleaded to the merits, the jurisdiction was admitted. Smith v. Kernochan, 7 How. 198; Sheppard v. Graves, 14 How. 505; De Sobry v. Nicholson, 8 Wall. 420. While the jurisdiction of the circuit oonrts is considerably enlarged by the first section of the act of 1875, and apparently extended to the utmost constitutionallimit, section 5 vests these courts with a summary power to stop proceedings and dismiss a suit, whenever it shall appear that it does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that the parties to such suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable by such court. The salutary nature of this provision is not open to question. It is notorious that claims have been enlarged (lollusively assigned to non-resident plaintiffs, and fictitious domiciles established, for the express purpose of clothing the circuit court with jurisdiction of cases Which had no proper place upon its dockets. Frequently this fraud ripon the cOllrt passed undiscovered until the trial had been begun, and it was too late to take advantage of it. This section was admirably designed to strike at the root of these covert attempts to confer jurisdiction. While it has been the practice in this district, even since the act of 1875, to plead the want of· proper citiz.enship in abatement, it is clear, from the opinion of the supreme court in Williams v. Nottawa, 104U. S. 209, that this is nolonger necessary, and that it is the duty of the court, of its own motion, to dismiss the suit the moment the want of jurisdiction is made evident. Thus,.if it should appear that the plaintiff and defendant were both aliens, or citizens of the same state, or that the plaintiff, at the time suit was commenced, must have known that the amount of his recovery would be less than $500, I apprehend it is the duty of the court to dismiss; although if he had sued in good faith to recover more than $500, the fact that the verdict for a les8 sum was obtained would not deprive the court of jurisdiction, and would only affect his right to costs.
BAE. V. GRAND TRUNK
As it is not disputed in this case that both parties a.re aliens, 'the suit must be cllsmissed. (Plaintiff thereupon moved for leave to amend his declaration by averring in substance that the defective car belonged. to a foreign corporation; that such cal' was loaded outside of the state, and was in the course of transmission through the state to its place of destination. He further averred that there was a state statute in force at the time of the accident which provided that every corporation owning a road in use was at reasonable times, and for a reasonable compensation, to be fixed by the parties or the railroad commissioner, compelled to draw the merchandise and cars of another corporation; that since the passing of such statute two decisions' have been rendered by the supreme court of the state which held that by reason of said statute the duty of the company in the reception of such car was only to furnish competent inspectors. He further averred that said statute, as construed by said supreme court, is in confl.ict with the provision of the constitution of the United States that congress shall have power to regulate commerce with foreign nati9ns and among the several states.) , The object of this amendment is evidently an endeavor to raise a. question under the constitution and laws oLtha United States, and .thus create a case cognizable by this court under the first section of the act of 1875. It seems to me there can be no question that it was the intention of congress in enacting this section to permit the plaintiff to resort to the federal courts in every case involving over $500 in amount, and under the constitution or laws of the United States, notwithstanding the defendant may be a citizen of the same state, and thereby to obviate the necessity which had previously existed of suing in the state court, and finally raising the federal question upon writ of error from the supreme court of the United States to the supreme court of the state. Sawyer v. Ooncordia, 12 FED. REp. 754. Whether,.if this amendment had been originally incorporated into the declaration, it would have raised the federal question, it is unneceasMY to decide, for I am clearly of ,the opinion that where the discretion of the court is invoked to permit suchan amendment, we are at liberty to examine and to determine the point whether it will be likely to avail the plaintiff. The proposed amendment contains in substance an averment that the supreme court of this state has construed a state statute, requiring railroad corporations of this state to draw cars of other corporations, as relieving such roads from
any further obligation with respect to the condition of Buch cars, than to provide competent inspectors to see that they are in order, and that such statute, as so construed, is in conflict with the constitutional provision that congress shall have the power to commerce with foreign nations and among the several states. But clearly these rulings of the supreme court are not constructions of the statute, and hence are not binding upon this court. They are mere definitions of the duties of a railroad corporation receiving cars which they are compelled to transport under tIle statute. This is a ruling upon a general question of law, and not obligatory upon this court. To construe a statute or other writing is to determine the meaning of the words used. It is obvious that the supreme court was not called upon to do this in the cases referred to. And, again, it is equally clear that the statute in question does not conflict with the constitutional provision, since nothing is better settled than that the state legislatures may lawfully regulate commerce passing through their territory, when such regulations do not conflict with any congressional enactment. Thus, in the Railroad Co. v. Fuller, 17 Wall. 560, it was held that a state statute requiring railroads to fix their rates for transportation of passengers and freight, and to cause a printed copy of such rates to be posted up at all their stations along the line, was a mere police regulation, and did not conflict with an act of congress authorizing railroads to receive compensation for the transportation of passengers and merchandise over their lines. It was stated by Mr. Justice SWAYNE to be such an act as forms "'s. portion of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves." See, also, 0., B. « Q. R. Co. v. Iowa, 94 U. 8. 155; Munn v. Illinois, ,94 U. S. 113; Sherlock v. Alling, 93 U. S; 99,...104. In all such cases respecting commerce between different states the state legislatures may act, and their statutes are valid so long as con· gress does not see fit to legislate upon the subject, and ,supersede the statutes of the state by enactments of its own. The motion for leave to amend must be denied, and the case dismissed; with costs.
· AJlDBBSON 11. LIN"
(Cirmit Court, E. D.
MARRIED WOMAN-LIABILITY 071', AS STOCKHOLDER IN NATIONAL BANK.
A married woman who owns stock in a national bank is not exempt, on account of her coverture, from the liability imposed by the national currency acts upon all stockholders in such banks.
Motion for New Trial and for judgment non obstante veredwto. This was an action by a receiver of a national bank against Jesse M. Line and Mary S. Line, his wife, to recover an assessment levied by the comptroller of the currency upon the stockholders of such bank. On the trial it appeared that the stock was ownd by Mary S. Line, and that she was a married womau at the time it was transferred to her. The court directed a verdict for plaintiff, reserving the following point: "Whether the defendant, Mary S. Line, having been a married woman at the time the shares of capital stock in the First National Bank of Allentown were transferred to her, and ever since, was, notwithstanding her coverture, capable of engaging in the undertaking averred, and liable as a shareholder of the said bank in the manner and form in which she is sought to be charged." Defendant moved for a new trial and for judgment on the point reserved. Preston K. Erdman and John Rupp, for motion. John K. Valentine, U. S. Dist. Atty., contra. On April 28, 1880, the following opinion was delivered McKEXNAN, C. The right of the plaintiff to recover was resisted upon the ground that the real defendant was a married woman, and was not, therefore, liable. The question of her liability was reserved by the court" . She was sued as a married woman by reason of her owncr"hip as such of stock in a national bank, transferred to'her by her husband, and a certificate for which was obtained for, delivered to, ana held. by her. of opinion that her coverture does not exempt her The court from the liability imposed by the national currency ·acts. npon all stockllolders in national banks,therefore decide the question 'reserved against the defendant and in favor of the plaintiff, and ord$r jndgment to be entered on the verdict in favor of the plaintiff. -Reported by FJ"Bnk J.>. Prichard, Esq., of the Philadelphia bar.