WOODRUM V. CLA.Y.
WOODRUM 11. CLAY
«(Jircuit (Joure, D. Kansa8. February 21, 1888.)
ANnrALS-INFECTIOUS DISEASEs-TEXAS-FEVER ACT-PARTJES.
In an action under Compo Laws Kan. 1885, c. 105, § 80, lor damages for n· legally driving cattle into the state which communicated the Texas fever to plaintiff's cattle, and, to make such damages a lien on the cattle, the purchasers of the cattle who have assumed the liability for damages are properly joined as defendants, and a personal judgment may be had against them as well as against the vendor. In an action under Compo Laws. Kan. 1885, c. 105, § SO, for damages for illegally driving cattle into the state which communicated the Texas fever to plaintiff's cattle. brought against the importer and the purchasers, who had assumed the liability, the importer's interest is not adverse to that of the purchasers, so as to justify his classification as a plaintiff, and thereby give defendants a right of removal, on the ground of citizenship, to the federal courts. Under the removal acts of 1875 and 1887, the right to remove a separate controversy is confined to citizens of different states, and these acts repeal the act of July 27, 1866, and Rev. St. U. S. § 639, cl. 2, giving this right to aliens. An action on a partnership obligation is not separable, so as to entitle one partner to remove it on thG Found of citizenship.
S. REMOVAL OF CAUSES-CITIZENSHIP-ADVERSE INTEREST.
On Motion to Remand to the State Court. Ro88ington, Smith & Dallas and J. W. Rector, for plaintiff'. A.. S. . W"zlson and Guthrie ct Guthrie, for defendants Clay, Robinson & Co. FOSTER, J. The plaintiff', J. G. Woodrum, brought his suit in the dis... trict court of Washington county, Kansas, against Clay, Robinson & Co., a firm composed of John Clay, Jr., William H.Forrest, both aliens and subjects of Great Britain, and Charles Robinson, a citizen of Illinois, and George S. Elwood and the Washington National Bank, both citizens of the state of Kansas. Clay, Robinson & Co. removed the case to this court, and the plaintiff moves to remand it.to the state court. The exact ground upon which the right ofremoval is claimed does not appear in the petition. However, it is not placed upon the ground of local prejudioe, nor that there is a separable controversy in the case; but the citizenship of the different parties is set out, and the amount in controversy stated, and a general application made to remove to this court. The defendant bank claims some interest in the recovery against defendants, and its interest is really on the side of the plaintiff. The cause of action alleged against Clay, Robinson & Co. is on a written agreement, given by them to their co-defendant Elwood, whereby they purchased a lot of cattle of said Elwood, j\nd, as part consideration thereof, assuming and agreeing to pay all damages which the plaintiff, Woodrum, has sustained by reason of said cattle having communicated the Texas or Span. ish fever to the cattle of said plaintiff. It is further charged that defend. an.t Elwood drove the cattle from the territory l:Iouth of Kansas into this v.33F.no.16-57
state in violation of an act of the legislature, which act imposes a pun· ishment for its violation, and makes the person guilty liable for all dam· from such fever being communicated by said ages caused to cattle, and makes such damage a lien upon the cattle 80 communicating such disease. COlllp. Laws 1885, p.932. Clay, Robinson & Co. bought the cattle of Elwc,od charged with this liability, and assumed and agreed it.. Plaintiff pray,s against both qay, Robinson & C? to andlJ:hvQQd, and for.n hen on the cattle, and that the same be sold 10 satisfabtion of the judgment. Can Clay, Robinson & Co. remove the cause to this court? They insist that the acUon against themjson contract, and the action against their, co-defendant Elwood rests in tort, and hence there is a misjoinder; a.nd .thatElwood is a necessary or proper party, or, if a proper party., his interest in the controversy arrays him on the plaintiff's side; and"a:Heast, that there isa separable controversy between them and the plaintiff which entitles them to remove the cause to this court. I have no but the plaintiff could have proceede4 against Clay, Robinson & Co:. on their agreement without making Elwood a party defendant; buhtl:lElther these parties are improperly joined in this case is quite an· Undoubtedly the plaintiff has a good cause of action, if his allegations are true, against both parties, and also a lien on the cattle. So, in reality, the question is whether he can enforce his claim against both parties in one action. If Clay, Robinson & Co. had pur· chased the cattle without expressly assuming this liability, and plaintiff was seeking a personal judgment a.gainst Elwood alone, and to enforce his lien on the cattle, in such case it would have been proper to make Clay, Robinson & Co. parties, as the owners of the property, although no personal judgment could' have gone against them. So, if the plaintiff chose to seek his remedy against· Elwood and the cattle, (as he had a right- to ido,) Clay, Robinson & Co. were proper parties, and the question remains, whether, in the same action, plaintiff could have personal judg.. them as well as the other defendant. The liability of both defendants grows out of the same transaction,-the wrongful act of El. wood,-and to make either liable, the act muatbe proven, and the dam· age caused thereby determined. As a general rule actions on tort and contract; especially when the tort cannot be waived', cannot be joined; but when the contract liability is founded on the tortious act itself, and expressly assumes all liability therefor to the injured party, I am of opin. ion the injured party may join the tort feasor and the party assuming the liability for the tortious act, and the more so in this case, where the damages have become a lien upon the property transferred. Hoye v. Ray. mond,25 Kun. 667jCivil Code, § 83; Ayres v. WiswaU, 112 U. 8.187, 5 Sup. ;Ct. Rep. 90; A defendant has no right to say that au action shall be severable whioh a plaintiff has elected to make joint, unless there is :something in law which prohibits such joinder. Pirie v. 'J1vedt, 115 U. S. 43, 5 Su'p. Ct. Rep. 1034, 1161. If this view is correct, there are but two grounds upon which Clay, Robinson & Co. could possibly base their claim to remove this caSe to this court;-the first of which
WOODRUM V. CLAY.
would be upon thEltheory of: arranging the parties to the record on' opposite" sides of the controversy iD. sueh a manner as to make the interest of Elwood adverse to that of Clay, Robinson & Co., and really on the side of plaintiff; the second, on the ground of a separable controversy. SerJJing-Machine Cases, 18 Wall. 553; .&movaZ ChBes, 100 U. S. 457; Hyde v. Ruble, 104 U. S. 407; Blake v. McKim, 103 U. S. 336; Bible Soc. v. Price, 110 U. S. 61, 3 Sup. Ct. Rep. 440; Winchester v. Loud, 108 U. S. 130, 2 Sup. Ct. Rep. 311. Can the parties be arranged according to their interests in the manner aforel;aid? It is true, in this case, the defendants Clay, Robinson & Co., dep.ial in their answer, proceed to set out, as a after making a further defense, that they are not liable under their contract with Elwood, inasmuch as their liability under that contract rested upon certain conditions to be performed by Elwood, which he has not It is urged by counsel that Elwood's interest is really with that of plaintiff in holding Clay, Robinson & Co. liable on their contract. So far as that issue is concerned, that probably is true; but so far as the other issue raised by the pleadings is concerned, it is not true; for it must be presumed that Elwood is interested, in the first instance, in defeating the claiI11 of plaintiff, or reducing the amount of his recovery, as he stands liable to them under the law for any damages they have sustained. So far as the defense of Clay, Robinson & Co. is concerned, as to their liability to plaintiff under the contract, they could have set it up as well in a separate action them as in a joint action against themselves and Elwood, and it has been repeatedly decided that it does not make a separable or misjoinder of action because different defendants may haNe different defenses to plaintiff's action. Railroad 00. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735; Starin v. New York, 115U. S. 249,6 Sup. Ct. Rep. 28; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. Rep. 730; Insurance 00. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Mining 00. .Y. Canal QI., 118 U. S. 264, 6 Sup. Ct. Rep. 1034; Little v. Giles, 118 U. S. 596, 7. Sup. Ct. Rep. 32. There only remains to be considered the other question, whether the party seeking this removal can claim the right under that clause of section 2 of the act of 1887, providing for the removal of a separable controversy; and that question has been squarely decided in the negative by the supreme court of the United States in the case of Kingv. Cornell, 106 U. S. 395, 1 Sup. Ct. Rep. 312. The right of an alien to remove a separate controvers)' ia not given by the acts of 1875 or 1887. Both of those acts, in terms, limit it to a separate controversy wholly between citi,zens oj different statC8j and the court, in that case, holds that the act of July 27, 1866, and the second clause of section 639 of the Revised StatlItes, which gave this right to aliens, were repealed by the subsequent acts, (Hyde v. Ruble, supra, 410;) and that it was the manifest intent of the act of 1875 to ref'ltrict this right to citizens of different states. The act of 1887 (24 St. 553) places a further restriction to this clause, and limits the right o( removal to defendants alone. Telegraph 00. v. Brown, 32 Fed. Rep. 337.
It does not. avail that one of these parties seeking 8 removal is 8 citi. zen of the state of Illinois. Their interest is joint and inseparable. It is a partnership obligation, and is in no sensa a controversy wholly between citizens of different states. The cause.must be remanded. to the state court.
CHEROKEE NATION 'l1. SOUTHERN KAN.
(DiBtrict Oourt, W. D. Arkan8a8. February 2, 1888.)
EMINENT DOMAIN-NATURE OF RIGHT.
!tis the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property without the consent of the owners, upon the payment of just compensation to the owner. for the pUblic benefit, as the pUblic safety, necessity, convenience, or welfare may demand. 1 Eminent domain pertains alone to sovereignty. It belongs to no other power. It is one of the attributes of sovereignty.
The right of eminent domain does not grow out of the tenure by which lands are held. When 8 government asserts the right, it admits title in the one against whom it is asserted. The right of eminent domain exists independ.ent of the consideration whether the lands would escheat to the government in case of a failure of heirs. . By sovereignty, in its largest sense, is meant supreme, absolute, uncontrollable power; theju8 8ummi imperii; the absolute right to go.vei'n. Sovereignty in government is that public authority which directs or orders what is to be done by each member of society in relation to the end of the association or organization. Government is Dot sovereignty, but it is the machinery or expedient for expres'sing the will of the sovereign power. The right to be exercised in a state must be obtained·from the state in all cases. except where the federal government seeks to exercise it as being necessary to the enjoyment of the powers conferred upon it by the constitution. In the territories, the right of eminent domain belongs to the federal government.
SAME-RIGHT OF FEDERAL GOVERNMENT.
The. enjoyment of whatever privileges or rights may flow from the power having been exercised, may be granted to another than the sovereilP1; but when the. power will be invoked is to be determined by the agent of the BOVcase, the congress of the United States, as the agent of the people thereof.. Congress can only exercise the right of eminent domain, and cannot grant to another the power of saying when it shall be exercised. The use of the rights or privileges flowing from the exercise of eminent dol!J.ainmajbe granted by the sovereign power to a railroad company, because this is for the public benefit, safety, necessity, convenience. and welfare. This, then, is a proper case for the exercise by congress of this great sovereign right. 1
1 That the state has no right to take private property for any but a public use and as to what are such public uses as will justify the exercise of the right of eminent domain, see Johnston:sAppealt (Pa.) 7 Atl. Rep. 167; Heick v. (Ind,) 11 N. E. Rep. 306. and note; Sholl v. 00., (Ill.) 10 N. E. Rep. 199; In re Railroad Co.· (N. Y.) 8 N. E. Rep. 548. and note; Mining Co. v. Dewitt, (CaL) 15 Pac. Rep. 74.