' . J'ERGUSON ". ROSS.
Ross et al., (two cases.)
(OirlJ'Uit Oourt, E.
REMOVAL OF CAUSES-ACTION BY STATE.
An action brought under Laws N. Y. 1875, c. 604, as amended by Laws 1885. in the name of the "shore inspector," to recover the penalty imposed by that act for depositing prohibited materials in the waters of the bay and harbor of New York. which penalty, when recovered, goes into the state treasury, is in effect an action by the state, and therefore not removable on the ground of citizenship, under act Congo March 3, 1887. The action cannot be removed for the further reason that it is in its nature penal, to enforce a police regulation, and not a suit "of a civil nature, at law, or inequity." The fact that removal into the federal court was had upon the application of the defendant is immaterial on his motion to dismiss, if the controversy is one of which the court has no jurisdiction.
SAME-MoTION TO DISMISS BY PARTY REMOVING.
At Law. Motion to dismiss. This is an action brought by the plaintiff, Cornelius Ferguson, in his official capacity as shore inspector, under the laws of the state of New York, to recover penalties from the defendants, P. S. Ross and Joseph B. Sandford, for depositing prohibited materials in the waters of the bay and harbor of New York. Plaintiff is a citizen and resident of New York, (Eastern district;) defelidants are citizens and residents of New Jersey. The actions were begun in the state supreme court, and removed here by the defendants, under the act of March 3, 1887. Upon the trial, defendants moved for a dismissal on the ground that the court had no jurisdiction of the subject-matter of the actions. The motion was denied, with leave to renew after verdict, when the questions raised could receive more careful consideration. Verdicts were found for the plaintiff in both cases, and upon motions for a new trial the question of jurisdiction is again presented. The act of which it is claimed the defendants were guilty in each particular case was the dumping of dredging material in the bay and harbor of New York. The statute under which these actions were prosecuted is chapter 604 of the Laws of 1875 of the state of New.York, as amended by chapter 414 of the Laws of 1885. This act makes it unlawful to deposit such materials within certain specified limits, including the bay and harbor of New York; and provides that any person offending against the provisions of the act shall be guilty of a misdemeanor, and shall, upon conviction, be punished by the infliction of a fine of not less than $100 nor more than $500, or by imprisonment as in case of misdemeanors, or both, in the discretion of the court. Out of any moneys received from fines under the act such sum or sums shall be allowed and paid for the expenses and disbursements attending the arrest as the court or magistrate may deem able and proper. The act next provides for the appointment of a" shorE' inspector" of the counties named, to hold office for three years, and to serve until his successor shall be appointed. He is given an annual salary of $2,000, (in lieu of all other compensation,) which, with the saJa,. v.38F.l1O.3-11
ries of his subordinates, is made a county charge. It is made his duty to investigateatid report any and every violation of the provisions of the act, and he IS given power to offenders. To carry out the objects of the act the sum of $15,000 is appropriated for expenses. It is made a gounty ,!lnd, when raised, is paid over to the state comptroller. By the eighth section of the, act (the particular .one under which these actions were prosecuted) it is rpade unlawful to permit any dredgings and materials taken from basin, or shoal in the port of New York to be deposited or placed elsewhere than beyond certain prescribed limits. For each and every violation of the provisions of this act all persons sooffending are and severally liablE:: to pay a penalty of $1,000, together with costs, for each and every such offense. Such penalty is to be recovered by and in the name of the said inspector, in a civil action, in any court of competent jurisdiction in the state. The inspector is given power in his discretion, with the consent of the court, to remit all or any part of the penalties thus incurred; and it is further provided that all mop.eys recovered by civil action, after deducting costs, counsel fees, etc. ,shall bepaip. into the treasury of the state. The penalties, and the mode of recovering the same, shall, it is further provided, be deemed to be substituted for all others theretofore provided by law fotthe same or like offense. The object Of the act, as declared in the title, is to protect the shores and bay of New York, and ,the seaside resorts near the Same. . J08tph G. Jacksm, for defendants. 'James S. Ohurch, for plaintiff.
'LACOMBE, J., (after stating the faCta as above.) The. faot· that removal into this court was had upon the application of the defendant is immaterial, if the controversy is one of which the circuit court has no jurisdiction. Lazensky v. Knighta of Honor, 32 Fed. Rep. 417.· There is no pretense that the matter in dispute arises under the constitution or laws of the United States. It is only as "a controversy betweeJ;l citizens of different states"that the plaintiff insists that this court has power to dispose of it, and on that theory be seeks to sustain the removal. There is no stl'ttute which authorizes the removal of a suit between a state and citizens another state on the ground of citizenship, for a state cannot, in the nature of things, be a citizen of any state. State of Alabama v. Wolfe, 18 Fed. Rep. 836; Stonev. South Carolina, 117U. S. 430,6 Sup. Ct. Rep. 799. The nominal plaintiff here is an individual, but he sUes only in his.officialcharacter. The suit is brought to enforce a police regulation of the state.. He has no personal interest in its subject-matter,-not even for his fees 'or commission, for he is a salaried officer, whose compensation is sectued irrespective of the result of the suits he may bring. In the event of his retrioval from office the suit would be continued hy hiS successor, not by himself. Courts will look behind and ,through the riominal parties on the record to ascertain who are the real parties to the suit, and will determine whether a state is the real party to an action brought by or against its officer by a consideration of
FEll,GUSON fl. ROSS.
the nature of the case as presented by the whole record. Governor of Georgia v. Madrazo, 1 Pet. .110; In re Ayer8, '123 U. S. 443, 8 Sup. Ct. Rep. 164; New York v. LouiBiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176; Hagood v. Southern, 117U. S. "52,6 Sup. CLRep. 608; Louisiana v· .Jumel, 107 U. S. 711, 2 Sup. Ot. Rep. 128; Browne v. Strode, 5, Cranch. 303; State of Maryland v. Baldwin, 112 U. S. 490,5 Sup. Ct. Rep:278; 2 How. 15. The real party prosecuting these suits is the state of New York, and they are therefore not removable under the act of 1887. Moreover, the. cases provided for by the statute" oonferringjurisdiction upon the circuit courts are suits "of a civil nature, at law or in equity."The cases at bar are brought to enforce penalties imposed by state law to be paid to the state treasury, and are of a penal, 110t a civil, nature. As such they cannot be sustained in thecoll rts of the United States. Gurin v. 6 How, 7; State of New Hampshire v. Railway, 3 Fed. Rep. 887. They areundistinguishable in principle from Wisconsin v. Insurance Co., 127 U. S, 265, 8 Sup. Ct. Rep. 1370. By the laws of the state of Wisconsin, the officers of fire insurance companiesdoing business in the state were required to file certain reports, and to forfeit $500 for failure so to do. It was made the duty of the com.. missioner of insurance to prosecute actions to recover such penalty in the name of the state,-one-half of the recovery going to the state treasury, the remainder to the insurance commissioner, who bore the expenses of the suit. He was also given power to comprDmise actions. The supreme court held (supra) that the law was penal, and that a l!uiUo force could not be maintained in :the federal courts." In thelanguaga of Mr. Justice GRAY, delivering the opinion: .. The rule that the courts of no coun try execute the penallaws of another ap· plies not only to prosecutions and sentences for crimes and. misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for a\lY violation of statutes for the protection of its revenue, or other municipal laws, and to all jUdgments for such penalties. II< ... .... The statute of Wisconsin under which the state recovered in one of her own courts the jUdgment now and here sued on was in the strictest sense a penal statute, imposing a pen· alty upon any insurance company of another state doing business in th!l state of Wisconsin without having deposited with the proper officer of the state a full statement of its property and business during the previous year. The cause of action was not any private injury, but solely the offense committed against the state by Violating her law. The prosecution was in the name of the state, and the whole penalty, when recovered, would accrue to the state, and be paid, one-half into her treasury, and the other half to her insurance commissioner, who pays all expenses of prosecuting for and collecting such forfeitul'es... The real nature Of the case is not affected by the law of the state for the punishment of the offense. It is immaterial whether by the law of Wisconsin the prosecution must be by indictment or by action, or whether under that law a judgment might be enforced by execution, by scirefcuiias, or bya new stiit. In whatever form the state pursues her right to punish the offense against her sovereignty, every step of the proceeding tends to one end,-the compelling the offender to pay a pecuniary fine by way of punishmentfor the offense." The motion to dismiss both actions must therefore be granted, but, as defendant moved .them into this court, without costs.
FEDERAL REPORTER, vol. 38. REMER
(Qtreuit (Jourt, No D.
March 25, 1889 ,
EQUITy-PLEADING-CRoss-BILL-GERMANE TO BILL.
Complainant filed a bill to remove a cloud on his title. alleging that defendant issued an attachment in Iowa agoainst R, and levied on the land in question, which stood in the name of R.'s wife; that defendant filed a supplemental petition in that suit against R and wife, alleg-ing that the land actually belonged to R., and had been conveyed by him to his wife in fraud of creditors; that without service on or not,ice to Mrs. R, and without appearance by her, defendant obtained a decree under which the land was sold. and he became the purchaset; that complainant had in good faith obtained the title from Mrs. R. Held that. as by the laws of Iowa a creditor may attach land fraudulently conveyed. and afterwards file a bill to set aside the fraudulent title. defendant had a right in this suit to file, as germane to the bill. a cross-bill alleging that complainant was not a bonafide purchaser, and praying to have his pretended title declared void, and the title declared to be in defendant.
In Equity. On exceptions to answer, and demurrer to cross-bill. Bill to set aside cloud on title, filed by Chester K. Remer against Duncan McKay. For opinion on demurrer to bill, see 35 Fed. Rep. 86. O. F. Woodruff, for complainant. Pry & Rabb, for defendant. BLODGETT, J. This case is now before the court on exceptions to defendant's answer and demurrer to the cross-bill filed by the defendant. The original bill charged, in substance, that Janet R. Remer, the wife of Adam Remer, berame the owner of certain lands situated in Monona county, Iowa; that defendant, McKay, claimed to be a creditor of Adam Remer, the husband of Janet, and instituted proceedings by attachment in the district court of Monona county against Adam Remer, and levied on the lands so owned by Janet, and also filed a supplemental petition in equity against Adam and Janet, Remer, charging that said Adam was the actual owner of the land so levied on, and had caused the same to be conveyed to his wife, Janet, without consideration, for the purpose of defrauding his (Adam's) creditorsjprayed a decree that said Janet had no real interest in the land, and held the same in trust for AdalTi; and without personal service on, or notice to, Janet, and without any appearance by her in the case,a decree was entered, directing the land to be sold for payment of the indebteclness due the defendant; that said land was so sold by the sheriff of said county, and in accordance with Buch sale the sheriff of said county had made a deed thereof to the fendant, who claimed thereby to have acquired a valid title in fee-simple thereto. And the bill further charged that the complainant had, without notice, acquired by purchase in good faith the title of Janet to the land, and asked that the title of the defendant, so obtained without service of process or notice, should be set aside as a cloud upon his title. By the answer and cross-bill the.defendant now charges that Janet Remer had no actual interest in the land; that it was bought by her husband, Adam Remer, alld paid for from his meal1S; that defendant in the origi.
U'CLOSKEY t1. BARB.
nal bill and complainant in the cross-bill is a creditor of Adam Remer, and has proceeded by attachment, as he lawfully might under the laws of the state of Iowa, against Adam, to levy upon said land' under his writ of attachment and to obtain judgment against Adam, and that said land was duly sold in pursuance of the decree and judgment of the court to satisfy the indebtedness due from Adam to the defendant; and that he has by due course of said proceedings obtained a deed. from the sheriff of said county conveying to him said land; and that complainant had notice, before purchasing from said Janet, of the fraudulent nature of the conveyance to her, and the manner in which she held her title; the cross-bill prays a decree that the title held by Janet, and which has been conveyed to complainant, was fraudulent as against the complainant, a creditor of Adam Remer, and that said complainant be decreed to vey said land to the defendant. The only question in the case, it seems to me, which is raised by these exceptions and demurrer. is whether this cross-bill is germane to the subject-matter of the original bill. Under the laws of Iowa any interest of a person in real estate in that state, whether legal or equitable, may be levied upon and sold by a creditor 6f the person holding such interest; and real estate fraudulently conveyed to a third person may be attached by a creditor of the real owner, and a bill filed afterwards to set aside the fraudulent title. Lathrop v. Brown, 23 Iowa, 40; Hultz v. ZoUars, 39 Iowa, 591; Gardner v. Jaques, 42 Iowa, 577; Bailey v. McGregor, 46 Iowa, 667. The complainant having come into a court of equity for relief, the defendant may. as it seems to me, appropriately make this application for relief by attacking complainant's title, and saying that complainant has inequity no title to the land in question, but that the real and equitable title is in the defendant; that the complainant has no standing in a court of equity to maintain and be protected in a title held in fraud of the defendant's rights. The case made by the cross-bill seems to me an appropriate defense to the complainant's case, and one that, if sustained QY the proof, would show the defendant titled to the relief asked. It therefore appears to me that the cross-bill is entirely germane to the ease made by the orig;inal bill, and that the exceptions to the answer, and the demurrer to the cross-bill, should be overruled.
d al. t1. BARR d al.
S. D. Ohio, W. D. March 9, 1889.
EQUITY-PLEADING-SEPARATE PLEAS-FILING WITHOUT LEAVE.
It is not usual, nor in conformity with proper practice. for a defendant. without previous special leave of court, to file several separate pleas, or to present several distinct and independent defenses in one plea; the object of a plea being to reduce the cause, or some distinct part of it. to a single issue. The rules of equity pleading require that the averments of a plea in bar shall be so clear; positive, and distinct as to render the plea a complete equitable and legal bar, and enable the complainant to take issue upon its validity.