NEW HAVEN STEAM-BoAT CO.
'District Court, S. D. Neu;' York.
1. JURISDIOTION-COSTS ON DISMISSAL.
November 22, 1883.)
The settled practice of the federal courts, upon dismissal for want of jurisdiction, has been to disallow costs on the ground of want of power. 2. SAME-REV. ST. §§ 823, 983: Whether this rule is an.r longer applicable, and any want of Dower can b'l deemed to exist under the express provisions of sections 823, 983, of tho Re· vised Statutes, qUlEre. 3. SAME-CIVIL RIGHTS AOT-COSTS-REv. ST. § 975. Where an action was brought to recover a penalty under the civil rights act of March 1, 1875, and the same is discontinued, upon the recent decision of the supreme court holding the act unconstitutional, held, that the defendant was entitled to costs. under section 975. Held, also, that, independent of that section, costs could not be denied through any want of jurisdiction, since this court has jurisdiction of thesubject.illllotter, and the determination of the question of the validity of the act.
Action to Recover Penalty. Alexander & Ash, for plaintiff. Owen d Grall, for defendant. BROWN, J. This action was brought by a colored person to recover a penalty of $500 for being expelled on account of his color from the dining-saloon of the defendant's steam-boat Continental on the fourteenth of February, 1879, in violation of section 2 of the act of March 1, 1875, (18 St. at Large, 336,) commonly known as the civil rights act. The defendant interposed various pleas, including a plea to the jurisdiction. The case being called on the calendar of this court for trial, plaintiff's counsel stated that the case seemed to be covered by court in Robertson v. Memphis & the recent .deJision of tpe O. R. 00. 3 Sl:lP' Ct. :ij.ep. 18, hoJding that the act in question was unconstitutionl;tl, and. that he would discontinue the action, claiming the right to do so without costs, on the ground that the court, through the unconstitutionalHy afthe act, was without jurisdiction of the subject-matter. The defendant claimed the rightto costs upon discOlltinuance, and the question ,been submitted to the, court for its decision·. 1. It has long been the settled in the federal not to grant cQstsin a cauSe which is,discontinned or dismissed on the ground thltt the court no jurisdiction of the This has generally been pla:ped on ground of want in the Homthall v. The court. The M.dyor v.Oooper, 6 Wall.. 241, .. cited; Abbey v,.'.('he Stevens, Oollector, 9 WaJl. 560, 22 How. Pr.. 78, 86;, The'McDo'J,ald, 4 Blatchf. v. A Oargo, etc., 15 FED. BEl;'. 285,288;' Burnham & M. 417, 424.. , , , , " In many ot the state trij:mnals costs in such ca.ses are giveu to the prevailing party, where there is jnrIsdiction of the plaintiff,e.vep in
V. NEW HAVEN
the absence of any state law authorizing it. The subjeot is elabor.ately reviewed by Justice WOODBURY in the case last cited,and in Hathaway v. Roach, ld. 63. There seems to be nowhere any versity of opinion that where a statute exists giving costs "to the prevailing party" without 'qualification, costs must be allowed, though the defendant prevail through the want of jurisdiotion of the subjectmatter. Jordan v. Dennis, 7 Metc. 590; Hunt v. Hanover, 8 Metc. 343,346; King v. Poole, 36 Barb. 242; Donnelly v. Libby, 1 Sweeny, 259,287; McMahon v. Mutual Benefit L. Ins. Co. 3 Bosw. 644, 649. I have recently had occasion to refer to the change made by the Revised Statutes, § 823, in regard to the right to costs. U. S. v. T1'eadwell, 15 FED. REP. 532. That section, in declaring for the first time that the following and no other compensation "shall be taxed to attorneys, etc., except in cases otherwise expressly provided by law," seems to be as broad and unequivocal a statutory allowance of costs as is provided by the statute of Massachusetts or by the New York Code, giving costs "to the prevailing party." Section 983 of the Revised Satutes is taken without change from the fee bill of 1853, (St. at Large, 168,) and provides that the, fees of the clerk, marshal, and attorney, etc., shall be included in the judgment against the losing party wherever by law costs are recoverable in favor of the prevailing party." The subsequent enactment of section 823 gives costs "except ,where otherwise expressly provided by law,"-that is, by statute; and in connection with section 9'83 it would seem to entitle the prevailing party to these aosts without qualification, unless there is some express statutory provision to the contrary; and the authority and power of the court to adjudge costs, providing it has jurisdiction of the plaintiff, would therefore seem to be no longer open to doubt. 2. But if section 823 of the Revised Statutes has made no change in the previous right to costs, or the authority of· the court to award .them, the prelent case does come, within the scope of the federal decisions abo', referred to, denying costs on' dismissal for want of jurisdiction. Independent of the act of 1875, which specially confers jurisdiction upon the circuit and distiictcourts to try all questions arising under that act, the district aourt, under section '563, snbd. 3, of the Revised Statutes, has jurisdiction "of all suits for penalties and .forfeitures incurred under any law of the United States." Either the district::or circuit court, therefol'ejhas jurisdiction of the subject-matter by act of congress, -and bi authorized to determine allquestidns arising thereupon, including the co.nstitutionaJityof the act.imposingth El particular penalty, and' the suit is now dismissed, not' from. any want of such jurisdiction, but oollause the cOUlit holds that the &'et'ofcongress creating the "offense snd impo,;Jitig ,the pet!.alty is unconstitutional, so that no cause of action exists;. its of the aontroversy, in one of its branches, at least, ,are'thereby passed upon;anll it is that no cause of action,exists by reason simply of the unconstitutionality ·of the act; and the case,. is
-- FEDERAL. REPORTER.
therefore wholly different from that of adismissli, without any examination of the merits, on the ground that the court has no power to make any adjudication on the subject. In the recent cases in the supreme court I understand that costs have been allowed. 3. Section!Y75 of the Revised .statutes expressly provides that "if any informer or plaintiff, on a penal statute, to whom the penalty, or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, · · · the court shall award to the defendant his costs." The act of 1875 is a penal statute, and the penalty of $500 provided by it accrues to the plaintiff, and this suit is brought by him to recover that penalty. The case is therefore directly within this section, and there is no such want of jurisdrction over the subject as can prevent its ap,plication in regard to costs, and the defendant is therefore entitled to costs upon this discontinuance.
'UNITEl> STATEg 'V. EASSON.
S. D. New
York. June 22, 188S.)
3982, REv. ST.-REGULAR TRIPS.
. The streets of New York city being post-routea, section 39.92 of the Revised Statutes imposes a. penalty upon persQIllI makjng provision by express or otherwise for a delivery of lette1'8 by regUlar trips or at stated periods.
2. SAME-OABESTATED. 'fhe defendant, the propi-ietor' of' Hussey's Express, maintained a corps of messengers employed to collect letters daily from the offices of his customers, prepaid by private stamps sold beforehand for that purpose, to take the letters as collected to his central office, there over alllettelll received, make them up into packages, and dispatch them by messengers from once to thrice daily. Held, such deliveries were .not by .. messenger employed for the particular occasion only," but were deliveries" by regular trips, and at stated periods/' within. the meaning of the statute, for which the defendant was liable to tJl8 statutory penalty.
Action fdr Penalty under section 3982, Rev. St. Elihu Root, U. S. Dist.. Atty., for the United States. Rastus S. Ran801n, for defendant. Before Hon;ADbIBON BROWN, J.,and a jury. Upon plaintiff's motion to direct a verdict, the court said: 1:t has been recently decided in the circuit court of this district that the streets of this city are "post-routes" within the meaning of section 3982 of the Revised, Statutes. Blackham v. Gresham, 16 FED. REP. 609. In my. judgment the of section "by trips. or at stated periods,,, apply to .and qualify the first clause of that section, as weHas the second. Them..eaning is that: "no person shall establish express for the conveyance of·.letters or packets make by regular trips or at s.tated pe:riods, or in any other provision for suoh conveyance by regular trips or at,stated periods,'''