LoUISVILLE BRIDGE CO. et. al.
(Oircuit Court, D. Kentucky. April 5, 1890.)
REMOVAL OF CAUSES-PLEADING.
Where defendant's petition'for removal of a canse distinctly alleges that a federal qnestion is raised, his answer, filed after a motion to remand. and setting out Ulore in detail the nature of the defense, may properly be considered on that motion. Whether or not a removal bond should have no fixed penalty, a bond otherwise valid is properly accepted where the penalty is sufficient to cover the costa likely
. A proceeding to exclude 8 bridge company from the use of a franchise to operate railroad tracks in a public street does not raise a federal question, though such . tracks lead to its bridge, built under Aota Congo July 14, 1862, and Feb. 17, 1865, authorizing the construction of 8 railroad bridge over the Ohio river, and declaring that it "shall be a lawful structure, and shall be recognized and known as a postas those acts do not attempt to give the right to the use of the street as an . : A proceeding by a state to forfeit a franchise cannot be removed to the federal cour.ts on tbe ground that it. iml.airs the obligations of 8 contract j the probibition of the constitution being that Iio state shall pass any law" impairing the obligation of contracts.
LAW-OBLIGATION OF CoNTRACTS.
In Equity. On motion to remand. P. W. Hardin and Muir. Heyman« Muir, for the Commonwealth. Oha8. H. Gib80n and Barnett, Miller « Barnett, for defendants. BARR, J.The commonwealth of Kentllcky brought this suit in the Jefferson court of common pleas; and it has been removed here, on the petition of the defendants, upon the alleged ground that the controversy is one arising under the constitution and laws of the United States. The plaintiff moves to remand the case to the state court, and insists that it does not raise any question under the constitution or laws of the United States; and it is also insisted that the bonds executed in the state court are not sufficient, and the execution of a proper bond is jurisdictional. The suit is a statutory one under the Code of Practice of this state, which authorizes such a proceeding in lieu of a writ of quo warranto, or an information in the nature of a quo warranto, and is for the purpose of having the defendants excluded from the use of the to operate a double-track stearn railroad in and over Fourteenth street, in this city, from Main street to Maple street, and to recover damages for the wrongful use of said franchise heretofore. The plaintiff alleges in the petition that defendants, in co-operation with each other, have usurped the use of Fourteenth street from Main street to Maple street, a disto nee of about one mile, and have used the same, by operating a double-track railroad, with steam, for many years, and are still operating said road over and through said street, for the transport.ation of passengers and freight, and are now, and have been for more than 10 years, charging tolls and compensation therefor illegally, and that they are exercising said franchise without wauant or right from the plaintiff, and without any lawful authority whatsoever. The petition for removahlleges that there ian. fed-
eral question involved in the controversy, because (1) the plaintiff is vi. olating the' obligation of a/contract which she has entered' into with the Louisville Bridge Company; (2) that she is attempting to impair or destroy rights which thebridgeconipany 'hold hilder acts of congress approved July 14, 1862, and February 17,1865. Aftertbe"plaintiff entered this motion to remand the case to the state t\:lndered aI).answer to tpe origina.1 of the plaintiff, and asks that it he filed and considered as, part of the record . As the petition alleges distiul:ltly tb.at this suit on this' raises Ii. question, under the constitution and laws of the United States, I think.it, proper that .sets out more in detail of the defense,shp@it'be consi<lered an<,l readop ,this the The bomi$!,which were executed by the defendants,and accepted by the each in afein conformity with thepl'o\l'isionsof thestatutedn every respect, unless a 'penalty is of thef:1.ctM March improper. It is claimed thll:t the third 1875,as,awendedby the act of March 3, 1887" provides for a bond unlimite<i )ti and 't(r,'lJe by'a nxed and ther'eforetheseb6nds 'ate fatally defective, and,as the execution of a proper bond is jurisdictional, this case should be remanded for that reason. Whether the execution 'of ,a; vaHannd iproper bOOd undertliis act,:and 'the' act 'of Mdrch 3/1'$75, isjurisdietional. ,has been much discussed; 'and the circuit courts have differed in opinion. 'See Burdi£k v. Rale, 7 Biss. 96; Torrey v. Locorrwtive Worka, 14 Blatchf. ,269; Deford:v.Mehaff'!J, 13; Fed-.: Rep.'481;Har7'i8'v. Railroad Co., 18 Fed. Rep. 8alk, , But that ql1astiondoes arise case, as I think the bondswbich, were executed by. defendants, and accepted by the state court, arevalidb6nds to the extent of thepenaltYi and,the penalties are sufficient to ,cover the cost likely: to' accrue in this 'case. It may be that a bondwithoat a penalty would be igood under the statute; but the act does not prohibit a bondwith,a., penalty, although it,does prescribe the obligations under which the 'obligor must come. ' I therefore think the state courtpro-perlyaccepted these bonds with a penalty, as the obligatious conformed to the provisions ofthe act. Both Field and Bump give forms of removal bonds with a penalty. See Field, Fed. Courts, 767; Bump, Fed. Pro,c. 909. ' , The facts which appear from the record, and that are material to the determination of the present' motion, are these, viz.: The Louisville Bridge Company was incorporated by the commonwealth of Kentucky, and authorized to build abridge across the Ohio river from some convenient point, in ,the city of, Louisville to a point opposite in the state of Indiana, and was authorized to acquire by purchase and condemnationthe neaessary land to, build said bridge, and the necessary avenues thereto, and land for the purpose of any necessary building, etc. The company organized and built the present bridge under the charter granted by the commonwealth of Kentucky, and have accepted the provisions of congress approved July 14, 1862, arid February 17, 1865, and, built the bridge, in accordance with the provisions of said
acts;' moretharr15, yl;lare, , F'ot;lrteent9 street is a'.public street in, the city of Louisville, 60 i,oeet i,o wi<;ltl), an1 about 1 mile in length from Main street to Maple :;treeh h(lt extends beyond both ofsaid streets. The bridge company ,and those claiming under said company, have occupied and used said street fora double-.track railroad, and have operated said railroad for the transportation of passengerli and freight going over said bridge, I:).nd for other freights, for more than 15 yE'ars, and have charged compensation for the passengers and freights thus transcity of Louisville, by an ordinance ported. The general council of approved March 14, 1872, authorized said bridge company to thus use !laid street, sQfar as the city could lawfully authorize it. These tracks over and through Fourteenth street from ¥ain street to Maple street are laid 01;1 tge ordinary grade of the street. These tracks are nota part of the bljdgestructure, but are the connecting link between the tracks of the Louisville & Nashville. Railroad Company and those of the bridge company at Main street. This track through Fourteenth street is the only railroad approach by which the Louisville & Nashville Railroad COqlpl!.ny can fellch the bridge fl,'om the sQuth,and is indispensable to tJ1e present ,use of the Louisville bridge for the transportation of and freight nolin and south. But other approaches can now, and could, at the time of the construction of the bridge, have been made. At that time the Louisville & Nashville Railroad and the Jeffer& Indianapolis Railroad were the only r&ilroads running to Louisville from the south and tbe north, respectively. The act of congress February J7,1865, (13 St. at Large, 431,) amends the act of July 14, 1862, so "to Louisville and Nashville RailNad Company and tpe Jeffersonville Railroad Company, stockholders ip the Louisville Bridge Company, to construct a railroad bridge over theOhioriyer at the hea,d of the tbeOhio, subject to 1111 the provisipnsof,said act" of,Tuly H, 1892,.and provides for the kind of bridge,to be constructed. The second section provides "that the bridge erected under the provisions of this act shall be a lawful structure, and Ilhalli>e,recognh;edand knol'!Q as r;t ppst-route." I The fifth section of ,the act ,of 1862 is the only part material to the present and that
J'That any bridge' 'or·' bridges erected under the provisions of this act shall be lawful structures, and sball'be recognized and known as posL-routes, upon :whi()h, a1so, no higher charge shall be made for. the transmission over same troops, munitions of war of the Unitrd States than the of the rate pel' mile' which the compa'ny or' cOlupahies erecting such bridge may from time 'to time recei ve on the balance of their line or lines for such services." . 128t. at, Large. 570.' ,
act of 186,1) did nota,uthorize the I..oqillyilleBridge Company to copstruct this bridge, but anthorityto <:onstI:uct was,givep to the two Thi,sis the act did not .grant shore of the Ohio dver.Itma,yPf.l,assumed iLthe according tp.,e ·two" railroad panies to tne requjrern:ents of theapt.t
., . · · L ·
as stockholders of the bridge company, or by the Louisville Bridge Company in its corporate capacity, the bridge was to become a lawful structure and a post-route. But congress did not not confer upon these railroad companies or upon the Louisville bridge corporate franchises, or any right to or interest in the land on either shore of the river. The right to be a corporation, and the rights and franchises incident to a corporation, and such as were necessary to construct and use such a bridge as required by the act, was not given, or intended to be given; neither was the act intended to give those building the bridge the right to condemn property, or purchase the property, necessary for the land approaches to this bridge, or for its piers. It, being declared a lawful structure, ceased to be, in law, an obstruction to the navigation of the Ohio river, whatever the fact might be. This gave authority to sink and build the necessary piers in the bed of the river, and on the shore of the river, if necessary, to have the bridge constructed the height required by the act. It may be assumed, for the purposes of this inquiry, that these acts not the construction of the necessary shore piers, and the construction of a part of the bridge upon them, but that it would authorize the. construction of trestle-work for the same purpose. But such authority would give no right to or interpst in the land upon which such piel's itnd trestle-work were built. These, being property rights, remained as if congress had not acted at all. It may be argued, while this may be true as to property rights of individuals and corporations, that· it is not true as to public highways, streets, et.c., which are under the control of the state, or municipalities created by the state, and that as to these congress, under its authority to regulate commerce among the states, and establish post-roads, may exercise a control which is supreme, and could authorize their use without the consent of the state in which they lay. The conclusive answer to this suggestion if! that, whatever may be the power of congress in and over public streets and highways in the states, in this instance it has not attempted to exercise any authority over Fourteenth street, or any other street in Louisville. The acts declare that the bridge shall be "a lawful structure and a post-route." It must be a structure, to be within the meaning of these acts. This is the ordinary meaning of " bridge," as given both 'by Webster and Worcester. If can" gress intended to give the authority to the bridge company to run railroad trains over and through Fourteenth st.reet, or any other street in the city of Louisville,. ifshould have been in unmistakable language; but, however this may be, it seems to me to be impossible to include teenth street as part of the bridge which congress authorized. This street, to use the language of the charter of the bridge company, is only an "avenue" to the bridge, or approach to it by rail from the south. Indeed, I do not understand that the defendants have alleged this street to be a part of the bridge or structure, but only it is a necessary approach to the bridge. The language used in these acts is quite comInon in acts of congress, and has been construed by the supreme court several times, and ill no instance have the words "lawful structure and a post-route," as applied to a bridge,been held toinclude, or have they
COMMONWEALTH OF· KEBTUCKY 11. LOUISVILLE BRIDGE CO.
been claimed to have included, an existing street or public highway over land as part of the bridge because it led directly to the bridge. This language was used in the Wheeling Bridge Case, 13 How. 519, 18 How. 421,460; in the Clinton Bridge Case, 10 Wall. 454; in the Brooklyn Bridge Case, (Miller v. Mayor, etc.,) 109 U. S. 385, 3 Sup. Ct. Rep. 228 i Missouri Bridge Case, (Hannibal & St. J. R. Co. v. Missouri Rivm' Packet Co.,) 125 U. S. 260,8 Sup. Ct. Rep. in nOlle of them is there an intimation that more than the bridge-the actual structure-was authorized and declared a lawful structure. Congress, in an act entitled «An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes," enacted, among other enactments"That any telegraph company now organized, or which may hereafter be organized, under the laws of any state in this Union, shall have the right to construct. maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been, or may hereafter be, declarfd such by act of cqngress. and over, under. or across the navigable streams or waters of the United States." 14Bt. at Large,221.
The supreme court, after declaring this was a constitutional exercise .of power by congress under the commercial clause of the constitution, ; .arid after declaring an act of the Florida legislature, which gave an exdusive right to one of its own telegraph companies in two counties of the .state, void and of no effect, uses this pertinent language, after quoting the language of the act:
"There is nothing to indicate an intention of limiting the effect of the words employed; and they are, therefore, to be given their natural and 'ordinary signification. Read in this way, the grant eVidently extends to the. pUblie domain, the military and post roads, and the navigable waters, of the United btates. These are all within the dominion of the national government to the extent of the national pqwers, and are therefore sUbject to legitiNo question arises as to the authority of mate congressional congress to provide for the appropriation of private property to the use!l of the telegraph, for no such attempt has been made. The use of pUblic property If private property is required, it must, so far as the presalone is .ent legislation isconcerned,be obtained by private arrangement with its owner. .No compulsory proceedings are authorized. State sovereignty under the constitution is not interfered with. Only national privileges are granted." Pensacola Tel. CO. Y. Weste1'n Union Tel. Co., 96 U. S. 12.
In same case in .2 Woods, 646, Judge WOODS says:
"It is not 8upposed, nor is it claimed by defendant, that the act of congress gives a telegraph company the right to occupy the right of way owned by without compensation." railroad
When this case arose, all railroads in the United States had been de.dared to have been post-roads by congress. I will not attempt to define or consider the extent of the power of congress under the commerical .dause of the constitution, and that to establish post-roads. It is suffi.cient, anu decisive of this branch of the case, if the fact be that congress has not given, or attempted to give, to the defendants, or either of them,
vol. 42., '
,MlleQf ;Fourteenth street, from Main street to Maple street" as a rail., r9ad,IIPprq/lchor avenue to the bridge. It may ,be that the defendants haVe,iJllJ-egal right to continue the use of said street as at present used; bUi",whetherornot,this be so,-andupon this I express no opinion,thisrigMcannot depend in any upon the construction of these acts of congress, as it has not legislated, or attempted to legislate, upon the subje,qt. I do not understand that the facUhat all railroads have been declared post-roads is urged as giving this court jurisdiction of the present controversy· It is" however, contended that the commonwealth of Kentucky is seeking by this proceeding to abrogate a contract made with the Louisville Bridge Company, and it is thereby violating the federal constitution. Art. 1, § 10. This section prohibits a, state .from passing any law impallipg the obligation of contracts. The supreme court say in a recent case that"In ordl'ir to come within the provision of the constitution of the United Stateswh:ich declares that no state shaH pass any law impairing the obligation' of 'contracts, not only mnst the obligation of a contract hsve heen impaired, but it must have been impairt'd by a law of the state. The prohibition is ailllellBt the legislative power of the statl'i, and not at the decisions of its acts of administrati va orexe,cntive b!>ards or otlieers, or the courts, doingsot6orporations or, iudi, iduals." New Urlean.y Water- Works 00. v. Louisiana/Sugar Refining 00., 125 U; S. 30, 8 Sup. Ct. Rep. 741.
He):'e there has been no legislative action, and thfl uttermost that can through her courts to have the be claimed is that the plaintiff is of ,a franchise whioh tbey ;claim to be theirs under acontltaot with plaintiff. . Ihaveinot overlooked the ,case of Railroad Co. v. Mississipp'i, 102 U. S. 135, settles the right of to a. removal to this court, if this a real pontroversy (:Ir dispute as to the construction and a:t;l ,ayt of congreSs and this. notwithstanding the plaintiff is a stata pf thu! ,Union. In. that case the real controversy was, as to the obstructiOn! 'of. '!inavigable river (Pearl riv.er) by a railroad bridge over it. The plaintiff relied iJPOll an act of' oongress Ilt\ssed March I, 1817, which declared "that the Mississippi river, and thenavigable rivers and leading into'the same, or into the Gulf of ¥ex.ico, shall be common highways,and forever free,as inhabitants of said state as to other citizens of the United States." The defendant also relied in its answer upon another act of congress, (March, 1868,) which, it claimed, authorized the construction of the btidge cornplained of by plaintiff as 'The suit necessarily inobstructing the free, navigation of Pearl volved the construction of the laws'df the United 'States; and, indeed, upon the ;act of congress. Besides, the the rig1:,J.ts of defendant subject-matter: of the cQntrpversywasnational, i.e., ,the navigation of Pearl river, atlc;l its allaglld obstruction; Here the subject-matter of the is, a franchise In and over 3 stroot in the city of Louisville, not.de,pend qpOn any right given by congress, but upon the stateJI\\VB.·,., J:,
,.RIK-E .:t!. ,FLOYD.
, In. determil1ing motion. to J:emand, I. necessarily compelled to determine whether the suit arises under the constitution orlaws of the United States. This jurisdictional question should be determined now, although" if I had serious dou,bts upon t,he .subject, it would per-haps be my duty to retain thecase,and determi;nethe question after all the evidence is in. Bu t, as 1 have no doubt!! upop this question, it is my duty to remand the case to the state court from whence it came. It can be helj.rd.tbere"and in the supreme court of the state; and, if agaiJ:lst the defendat;lts"they still have the right to have court of the Vnited States 118 ,to whether the suit is one arising under _ laws or constitution of theUuited States. The case should be remanded; audit is so or.dered.
.(Circuit· Ctmrt, S. D. Ohio, W. D. Mar 8,1800.) ,
1; RBMOVAL 01' CAUSI!lS-'-CrrIzENS1!lP oFPLAIN-rms.
Act March 8, 1887,(St. 1885-8'1', c.878, § 1,); prllVides:that8sult In a state court, "in which there is: a qontroversy betweeJ;1 a citlzenof thll state in which the $uit isbr(jught and a citizen of another state, "may,undercertain c.ircum.sta.noes, be 'I,'emovedon the ground of localprejudicetothe:United Statlls oirctLit CQurt,by ·anY defendant who is a. citizen of such. other: Held a petition fQr re\lloval wUl 'be di!fmislled when it does not show that all the'plaioti1!sare citizens of the state in '. which the. suit is brought., , ,'. . ' j ':. . . Under said actsu6n defendant may remove the call1!1e''''wben it shall be made to appea.rtoilaid circuit..oonrt-'that; from prejudice or local'wfluence,he Will not be able .to optain j/Istice in .suoh state court, or in other to,which he might under the' state law remove the Clise.'Held ttiat, where the petitioners might, remove the case to any' one of seven counties' adjoining. that in which it was broughh an averment in tbat, onaycou1;ltof loca.l prejudice, they will not be able to obtain justice inilucb courts, is il'18iltlcient.' , their OWUnames, trustees of the Printing Establisbmentofthe United Brethren in Christ, .. which Is averred to be a corporation under the laws of Ohio', the individuals, and not the corpora.tion, are the real .' . . '· ,
OF AFJrIDJ.VIT,. . . ·. . ' . .
CORPORATIONS-INDIVIDUALS SUING AS TRUSTEES.. · Under the l&ws of Ohio,whe.re individuals S"EIl by
Judge:Lawr(!/ftC6, G. W. Houck, and Geo. R. 'Young, fOf petitioners. John A. McMahon and Gunckel &; Rowe, for respondents.
SAGE, J'l (o.raUy.) Petition. by Halleylt Floyd lj.nd Charles S. Miller, defendants, for reIJ;loval from the court of common pleas of Montgomery county, on the ground of local prejudice. The petitioners aver that they were at the time of the bringing of suit, and. citizens of the state of Indiana; that .the plaintiffs sue solely in the capacity of trustees of the Printing· Establishment of the Brethren in Christ, which is averred to be a corporation under the lawl!\ of the st,a.te of Ohio, located and doing business at the qity of Day top I and that, by. virtue of the act of March, 1871, authorizingtlle incorporation of printing and publisbinIJ houses plaintiffs, as trustees, ate lit. QQd.y cQrporate, \lond, of .' .rh!,! sjlit in the