THE ANNIE FAXON.
THE. f\.NNIE FAXON. (Circuit Court of Appeals, Ninth Circuit. No. 414.
CiRCUIT COURT OF ApPEALS-JURhiDICTJON.
May 3, 1898.)
'rhe circuit court of appeals has no jurisdiction of an appeal in proceedings In admiralty for litnitation of liability, when the only question presented for review on record is whether the district cOUFthad ,power and jurisdiction, after final disposition of the questions of limitation, to enter !l decree In personam against the owners of the vessel for damages suffered by some of tile Interveners.
Appeal from the District Court of the United States for the Southern Division of the District of Washington. Cox, Cotton, Teal & Minor, for appellants. Charles H. Taylor and Hubbard & Taylor, for appellees. Before GILBERT, ROSS, and MORROW, Circuit Judges. MORROW, Circuit Judge. This was a petition by the Oregon Railway & Navigation Company, as owner, and the Oregon Short Line & Utah Northern Railway Company, lessee, for limitation of liability in respect to the damages caused by the explosion of the boiler of the steamer Annie Faxon on AUl?:ust 14, 1893, while the vessel was navigating the Snake river, in the state of Washington. The steamer was owned by the Oregon Railway & Navigation Company, but at the time of the accident it was leased to,and was being operated by, the Oregon Short Line & Utah Northern Railway CO,mpany. On September 18, 1893, both of these companies filed their joint and separate libels and petition in the district court for the district of Washington, in accordance with the provisions of the fifty-fourth admiralty rule, for the purpose of obtaining a limitation of their liability under section 4283 of the Revised Statutes of the United States, and such proceedinl?:s were thereupon had that an appraisement of the wreck was had, fixing its value at $3,520, and a bond in the 8um of $4,020, in lieu of the appraised value, was made and given by the appellants. Thereafter various persons who were passengers upon said steamer, and injured by the explosion. and representatives of deceased passengers killed by the explosion. as well as various persons who were employes upon the steamer, injured by the explosion, and representatives of deceased employes killed by the explosion, appeared in the proceedings, and presented and filed their claims for damages, and also made and filed separate answers in the nature of cross bills, contesting the right of the appellants to an exemption from or a limitation of their liability in the premises. Among the claims so filed, and for which judgments were asked against the appellants, and each and both of them, were the following for and on behalf of the appellees: Lewis T. Lawton, a passenger, $176,000; Mary A. McIntosh, as administratrix of the estate of John McIntosh, deceased, a passenger, $50,000; and Susan McIntosh, as widow and sole heir at law of Thomas McIntosh, deceased, a passenger, $50,000. The district court held that the appellants were entitled to limit their liability with respect to the
?laims of all a. was en.tered accordmgly. From thIS to thIS court, and this courtl.helcll that the appellants :wrerEhentitled to have their liability limited for damagesresu!t\Jtlg,,(rom the explosion with to the claims of the employes, ,!m,t ,were not, entitled to have theIr liability rSO; Jimited tj;) tM . 21 C. C. :A.. 366,.75 Fed /, T.he decllee"was, therefore,. ceversed as to the l;lnd the: Cfruse for further confliCt with the opinion of this court. When the mandate 'o(tqis court was entered in thedi.strict ,court, the appellees fllecla petition praying that the fund III court and a 'commissioner appointed to take testimony as to the damages suffered 'by 'the appellees. ", Testimony, was was made, disaccordingly taken as to such daDluges, ,and an tributing the fund, ,in CQUrti to the vadousclaiWants, including a portion of it to tlIe, , The court then proceeded and ascertained the amount'of damages suffered by the appellee!;l,' and entered Utah Northern a personal judgment againsUhe Ol'egonSho.rt Railway Company,for such damages ,in favor of tlIe .claimants as follows: LeWis T, A. MclI).,tosh,as administratrix of the estate of John, ·McIntosh, deceased1 $19,000; and McIntollh, as widow and sole heir at law of TlIomas McIntosh, de" ceased, $10,000. From this judgment the, apPellants ,have prosecuted the , ..' ", ' ' The err91'S in nUmber-maY reduced to the following: FiJ:st. The district iIl,lpakip.g order appointIng a commissioner to tak.e evidence as to thed!ilr1D.agejl claimed to have been Bustllined: by the appellees, foil' the ,reaso:n, thl\t the trict court had no power,. under.·the mandate of the circuit court Qf appeals, or under the practice in suc,h proceedings, to enter a personal judgment'or decree against the appellants in excess of the lim" ited liability fund in the district court represented by the :bond.tl\ken in that behalf. Second. The diatrict .court erred. in deprivillg the appelllLl).ts of a trial by jury as to: the claims of Jhe. appellees in e:&:cess of the lim,ited ,liability fund in the district court. Third.. The district court erred in personal judgment against tbe Oregon Short: LiI)e & Utah Northern Railway"Compapy in favror theappellees.E'ourth.The dijltrict court erred Jnentertaining jurisdiction ofthe proceedings for the purpos,e of ascertaining the liability of the appella:n,ts, or either.Qfthem, in excess of the fund represented by the bond given by It is contended on the part of the appellants that the: only decree which could have been entered in the court below upon the mandate of this court was one dismissing the injunction restr6Jining the appellees from pursuing appropriate remedies to collect from the appellants the damages .claimed to have been by the appellees, and that the district court had no power to'retain jurisdiction of the proceedings for :the purpose of entering a judgment against the appellants, 'Or either of them, for damages. It appeaI:s that before the taking of the testimony in the case it w.as stipulated that no action or. appearance on the part of the ap-
pellants should be taken or held as a waiver of any objection to the or to the jurisdiction of the court to enter jurisdiction of the UP any judgment or decree assessing damages in favor of the appellees, or either of them; that, upon the commissioner of the court proceeding to take testimony, the appellants appeared specially, and reserved the right to make any and all objections to the jurisdiction of the court to further try, hear, and determine any matter whatsoever in the proceedings, or to the jurisdiction of the court to render any judgment or decree therein, assessing damages in favor of the appellees; that no other objection or exception whatever to any testimony, evidence, ruling, direction, or proceeding was made, taken, or suggested, and no error of law noted or excepted to, or called to the attention of the district court by the appellants, or either of them, in the proceedings or at the trial; and that neither of the appellants, by their attorneys or otherwise, made any request, or motion for a jury trial in the district court. The only question contained in the record on the present appeal is, therefore, the question of the jurisdiction of the district court to hear and determine the issues as to the liability of the appellants for the damages sustained by the appellees, and to enter a judgment against the Oregon Short Line & Utah Northern Railway Company and in favor of the appellees in excess of the fund in the district court represented by the bond given by the appellants. The act of March 3, 1891(26 Stat. 826), creating the circuit court of appeals, provides · in section 5 of the act:
"That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: In any case In which the jurisdiction of the court is in issue In such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision. * * * "Sec. 6. That the circuit court of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision In the district court and the existing circuit courts in all cases other than those provided for In the preceding section of this act, unless otherwise provided by law."
In McLish v. Rofl', 141 U. S. 661, 668, 12 Sup. Ct. 118, 120, the supreme court held that, after a final· judgment in the circuit court, "the party against whom it is rendered must elect whether he will take his writ of error or appeal to the supreme court the question of jurisdiction alone, or to the circuit court of appeals upon the whole of the case. If the latter, then the circuit court of appeals may, if it .deem proper, certify the question of jurisdiction to this court." In the. case of The Alliance,44 U. S. App. 52, 17 C. C. A. 124, and 70 Fed. 273, this court held that, to give the circuit court of appeals jurisdiction to review an appeal from the district court in admiralty under the actof March 3, 1891, it was necessary to present for review some question other than that of jurisdiction, and, as the case did not present such a question, the appeal was dismissed. In Manufacturing Co. v. Barber, 18 U. S. App. 476,9 C. C. A. 79, and 60 Fed. 465, the circuit court of appeals for the Seventh. judicial circuit held the same ;' doctrine upon a writ of error from· .the cil'.' . .
87 FEDERAL REPORTER.
case the writ of error was dismissed. In the p.rese:p.t }he substantial and only question is as to the power of the <1istrictc<;JJ;iri to render a personaljudgment or decree against the company having the custody, control, and management of the steamer at the time of the accident. This is clearly a question of jurisdiction, which' this .court is not authorized to review. The appeal is th.erefore dismissed, at appellilnts' costs.
SMITH v. :RACKLIl!.'FE.
(Circuit Court of Appeals, Ninth Circuit. No. 422.
An. action by a citizen of another state or by an allen against a state treasUrer to recover. taxes alleged to .have been illegallY collected by tM state is, In effect, an action against the state, and cannot be maintained in a federal court In view of the prohibition of the eleventh amendment. Pol. Code Cal. § 3669,. which provIdes for bringing suits against the state to recover taxes Illegally collected, Is not to be construed as a consent that such suits may be brought in the federal courts, since it contains provisions wholly inapplicable to the procedure of the federal' courts, . among them being a provision that, at a certain stage of the case, the treasurer may cause it to be removed Into the superior court for the county of Sacramento.
SAME-G1TIZENSHIP-REOIriIVERS OF CORPORATIONS. ' SAME.
OF FEDERAL GOURTS-AoTION AGAINST STArE. OFFICER.
It is only where diverse citizenship party Is material. the receiver st3.1lds
the jurisdiction of the federal courts depends upon that the citizenship of a receiver of an incorporated If the' 'jurisdiction is asserted on any other ground, upon the Same footing as the corporation itself.
The provTsioD In the constitution. giving the federal courts jurisdiction of controversies "between a state and citizens of another state,·.· · and befween a state, or the citizens thereof, and foreign states, citizens or subjects" (article 3, § 2), does not InclUde an action against a state by a corporation created by ll:ct of
Appealfrom the Circuit Court of the United States for the Northern District dfCalifornia. C. N. Sterry S. Pillsbury, for plaintiff in error. W. F. Fitzgerald and W. H. Anderson, for defendant in error. Before GILBERT and ROSS, Cil'cuit Judges, and HAWLEY, District Judge. ' GILBERT, Circuit Judge. The plaiJitiff in error, as receiver for the Atlantic & Pacific Railroad Company, was the plaintiff in an action which was brought agaipst the state treasurer of the state of California, under section 3669 of the Political Code of California, to recover $2,2'7:tSO p.aid by said company for the year 1893, al· leging, in his complaint,' that sa,id railroad compaily-was operating, under, 11 leasefrom, the Southern, Company, a certain line of railroad the state of CaUfor:nia, overwhjch leased line the lessor' company also ran its trains; that said line of road, and the