IN ItE C1TY OF CHICAGO.
and might raise the question fer which the distinction was made in that opinion. But that question is not here, for this is the initdal proceeding for the assessment, which is placed in the county court. Although conducted under judicial forms, and in a court having judicial powers, I am of opinion that it is exclusively an administrativeproceeding, and not cognizable by the federal court,-a court not contemplated by the legislature for participation in the assessment, and which has uniformly denied any function of taxation. "The legislature makes, the executive executes, and the judiciary construes the law" (Wayman v. Southard, 10 Wheat. 1, 46); and it is only when the legislature or executive abuse their power that the judicial arm is extended for arrest of the abuse. 2. Thus far I have not referred to two important cases, which were strongly urged to maintain jurisdiction here, and should control if applicable to this proceeding, viz. Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, and City of Chicago v. Hutchinson l 11 Biss. 484, 15 Fed. 129. Their consideration comes under the inquiry of separable controversy, and has therefore been left to the second point. In Pacific Railroad Removal Cases there was involved in one of them a proceeding by the city of Kansas "for widening a street through the depot grounds of the company, and thereby taking a portion of its grounds and the property of many other persons." Un· der the statute, a jury had been summoned before the mayor, and assessed the value of the company's property taken, and benefits against certain other property of the company towards payment of the total damages. The statute gave an appeal to the circuit court of the state, and the company and other dissatisfied persons took separate appeals accordingly. The company obtained removal of its case to the United States court. The decision passes upon several cases for different causes of action so removed by the company, and concludes that the incorporation of the company under the laws of the United States entitles it to removal of each, upon the ground that they are suits "arising under the laws of the United States." The opinion then answers further objections made in the City of Kansas Case as follows: (1) That it was a suit at law under the rule in Boom Co. v. Patterson, 98 U. S. 403. (2) That the appeal of the com· pany could be tried separately from the others as the issues were distinct, and involved only three points of inquiry: First, the value of the property taken; secondly, the amount of benefits to the remaining property not taken; and perhaps, thirdly, the right to open a street across the depot grounds. The only difficulty was found in reference to the assessment of benefits, and as to that it says:
whose property is benefited, in proportion to the benefit to each. But each piece of property taken is valued by itself, without reference to the proposed improvement; and the amount of benefit to each piece of property benefited Is ascertained separately, without reference to the other pieces benefited. It is only after this has been done that the aggregate amounts are ascertained, and the damages are assessed pro rata against the pieces of property benefited according to the benefits to each, which is the result of a mere arithmetical calculation. In the state court the jury ascertains and tlnds all these facts, and reports them in one general verdict."
to be paid by the city, is to be divided and assessed pro rata upon those
"The balance of damages for property taken, after deducting the amount
4!mll" behere, wl;l,joll.1 tJii,ink place m. Tllere the proceeqjllg. Wa!!! for conqf use, in whicllthevalue 'was as well Pointed. out, in the :BOQPlGO. Case. '[ TluHU!\ljlessment ,lIlf ,benefits against other property ,was, by legislative aqt,i lll/tde al) to thesameprqceeding, and by its ,rulel\l.. lts status WM placed l1pon tbe eminent dowitb,injudicilll and .not under the administratl"Y'el ,rule ·of which applies bere, (2) 'Xbat case was , regularly in a courtoflllw, upon a separate and distinct appeal, aIIowedb)'t,the statuOO;,iwhile the matter here presented Is an original ;aslile!!llUUent..' (3) It Is .stated in the Oity of Kansas 'Case that "tbe .amo'llnt:of; .beneflt to each pieceof;:propel'ty benefitell is ascertained ,$eptl-r.amly, WitllOut: Wi tihe other piecj:lsbenefi and, aggrega te, arno1JJUts ·of damages and benefl.t$al'e ascertained, ,too p.l!04'ataassessmentsare "the, result of a .mere aritbmetical calculaprovisiollsof. the statl1te under whicllthat proceeding not sU1Jl,cielltly si;ated to show the method by.whicb tb' against· eaQh··parcel ,could be ,out independently i' ]):tJ,t Jt is clear tbat tbe simple rule· there stafud cannot be· made an independent assessment under this, statute. There the, el.'fQlit:,case which can tlnlybe supplied before the court.ln .the first place, defined through Which the assessment shall be sprea4-i:<pr,J+hat is be determined by the tribunal,makin.g the according tQ its discretion. of the terpitOl'}\ .which may be the imp:fQ'Vement. Each individual a!lSessment is dethenuxnber who shall be so brought,j,n.Again, it is of the statute that the.\'e;shall be a valuation of benefit to the ea(lh ,19t It is not for this. whole benefit, but for the pro rata I'lhareQfJbe expense to: be assessed. which its valuation of benefits bearl!!tQtheaggregateof.sllch valuations. Each aseessment requires for its RtWertainment the aggregate of expense to be assessed and the valuation :otbenefits. It. is therefore impossible to make a just:,}ns!ilessment in an. individual case without Jtaving as parties allothelllQtowners iIl;yolved. The tribunal of assessment determines who and all .are equally entitled to hearing. Thisoall.ollly be accomplished inacQurt having jurisdiction over all, and illAt ,single trial, or,tb,rough a trial which shall be dominant (in case for establishing these factors. This.coudcannot take a place either dominant or servient. (4) In the City of. Kansas Case there 'w;as ,';00' decision by the state supreme court interpreting the stattrte tl'eve in' question. 115 U. S. 21. 1 Here. the supreme has directly passed upon this smtute; in People v. Gl:1,ry,),051tl. 832, and beld that "it was clear beyond question that :theprooeeding,.on the part of the city was an indivisible suit;" that by which the suit coaid have been di'i .·
EDWARD BINES .LUMBER CO.
vided so as render it a several proceeding;" that "the trial was one as to all of the defendants," and one jUdgment; and that the declaration of the statute that the judgment should be considered several was only for the purpose of regulating the manner of obtaining satisfaction. This is an interpretation of a local statute by the highest tribunal of the state, and must be respected as such. The point suggested by counsel for the lot owner-that such construction would approve legislation to deprive the federal court of legitimate juris· didion-is not well taken. The means for tax assessment are en· . tirely within legislative control. The case of City of Chicago v. Hutchinson was decided in this court prior to the Pacific Railroad Removal Cases. It was a similar con· demnationproceeding, and entirely in the line of the later decision. rt is equally distinguished from the present case. 1 am satisfied· that there cannot be independent separate proceed· ings for this assessment; that this court is withont jurisdiction, in whole or in part; and it must remain with the county court, where plaeedby the statute. An order for remand will be entered accord· ingly.
ALLEY et a1 v. EDWARD HINES LUMBER CO. (Circuit Court, W. D. Michigan, S. D. December 27, 1894.)
Ri:KovAL OF CAUSES-DIVERSE CITIZENSHIP.
It is not necessary; to entitle a defendant, sued In a court of a state of which he is not a citizen, to remove the case to the United States circuit court on the ground of diverse citizenship, under the second clause of section 2, Act Congo March 3, 1887, that all the plaintiffs should be citizens of the state in which the action is brought.
This was a suit by Charles G. Alley and others against Edward Hines Lumber Company. The suit was brought in a court of the state of Michigan, and was removed by the defendant to the United states circuit court. Plaintiffs move to remand. Smith,Nims, Hoyt & Erwin, for plaintiffs. Bunker & Carpenter, for defendant. SEVERENS, District Judge. Two of the plaintiffs are citizens of New York and one of Michigan. The defendant is a citizen of llUnois, and has removed the case. The ground on which the motion to remand is made is that the plaintiffs are not all citizens of Michigan, that being the state in which the'suit is brought. 'l'he question turns on the construction of the act of March 3, 1887. Original jurisdiction is given by seetion 1. The second section provides for removals. The first and second clauses of that section require the same elements of jurisdiction to exist as in section l. The present case is one comprehended in the second clause, and the conditions of removal must be ascertained by reference to those reqnired by the first section for original suits. See Tod v. Railway Co. (C. C. A., 6th Circuit, Oet. Sess. 1894) 65 Fed. 145. The fourth clause of section 2, being the one which provides for removals on the ground of local prejudice, contains an additional requirement.