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.
May 3, 1898.)
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.
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
SMITH V. RACKLIFFE.
rolling stock thereon, owned and operated by the Southern Pacific Railroad Company, were returned by that company to the state board of equalization for assessment for the year 1893, and were assessed to said Southern Pacific Company at a certain apportioned valuation per mile for all of the road which'is covered by the lease; that the rolling stock on said leased road, owned and operated by the Atlantic & Pacific Railroad Compan;}', was returned under protest by that company to the state board of equalization, and was by said board assessed for the year 189:: to its said owner; that each of said companies paid the taxes levied upon its propertv: that thl'! said rolling stock of the Atlantic & Pacific Railroad Company so assessed was not used alone upon the line of the leased road in California, but was used in said company's traffic in other states, and was constantly coming and going into and out of said state, and that the Atlantic & Pacific Railroad Company's headquarters and the situs of its rolling stock is in the county of Bernallio, N. M., in which county all of its rolling stock was returned for taxation in 1893; that said assessment on the rolling stock of both companies using said road resulted in double taxation. The action was begun in the name of J. W. Reinhart, the former receiver of said road, and against J. R. McDonald, then the state treasurer. To the said complaint a demurrer was interposed, upon the grounds-First, that the court had no jurisdiction of the subject-matter of the action; and, second, that the complaint failed to state facts sufficient to constitute a cause of action. The circuit court, McKenna, J., sustained the demurrer upon the second ground, but disposed of the question of the jurisdiction in the following language:
"The view that this is a suit against the state Is presented by the' attorney general w,lth great strength and 'plausibility. But, even if the contention be true, I think It Is a fair deduction from the authorities, as from principle, tpat, the right of suit against the treasurer of the state being gi,en, it may be brought in the federal courts when other grounds of jurisdiction exist, as they do in this case. I de not think it is necessary to review the cases. They are very numerous, and the care of counsel has cited all of them." ReiI\hart v. McDonald, 76 Fed. 403.
Upon writ of error from this court, the plaintiff in error contends that the circuit court erroneously sustained the demurrer, and the defendant in error afrain raises the objection which was presented in the lower court, that the court is without jurisdiction of the subject-matter of: the action upon the ground that it is an action against the state ofCaIifornia', and SUbject to the inhibition of the eleventh amendment to the constitution of the United States, which provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." There can be no doubt that the action, although nominally against the state treasurer, is in fact an action against the state of California. From the time of the adoption of the eleventh amendment the supreme court of the United States has held that it should be construed fairly and liberally. and in consonance with its manifest pnrpose, and has established the doctrine that when, "the nominal defendants have no .personal
81' FEDERA.L REPORTER.
interest in the subject-matter of the suit, but defend only as representing the state, t1J.e state is the'.real party against whom the relief is sought, and this suit is substantially within the prohibition of the eleventh amendment." Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608; Louisiana v. J umel, 107 U. 8.1,7ill, 2 Sup. Ct. 128; In re 123 U. S. 443, 8 Sup. Ct. 164, Louisiana v. Steele, 134 U. S. 230, 10 Sup. Ct. 511. ,In re Ayers, 123 U. 8.443,,8 Sup. Ct. 164, Mr. Justice Mat· thews said, Qf the purpose of the eleventh amendment:
"tt thought to be neither becoming nor convenient that the several states of the: Union ,Invested with that large reslduum of sovereignty which had not been delegated to the United States, should be summoned as defendlUlts toap.swer tl.1e complaints of private persolls, whether citizel),s of other st,ateso,r !Lliens, orJhat the course of their public policy and administration ottbelr public affairs be subject to, and, controlled by, tl:ie mandates of judiCial tribunals witllout their consent, and in favor of individual interests. To secure the manifest purposes of the constltutlonalexemptiouguarantied by;the. eleventh amendment requires that it s):lOuld be interpreted, not literally alld too narrowly, but faidy, and with such breadth and largeness as to effectually accomplish the' sUbstance of its purpose. In this spirit, it must beheld to cover, not only' suits brought against a state by name, but those also against its officers, agents; and representatives, where the state, though not named as such, is, nevertheless, the only real party against which alone, in fact, tb;e relief is asked, and a,gail:\st which the jUdgment or decree effect" , Ively ol'rerates."
The 'present case comes clearly within the line of cases to which these:words apply. It is a case in which tbe state of California is alone interested .as defendant. No personal relief is sought as against the state treasurer, no act of his is brought in question, and no official misconduct is charged against him. So far as he is concerned, the action is. 'purely impersonal. It was originally against MeDonald,his predecessor in office. It is the aim of the action to recover from the state treasurer, in his official capacity only, money which has paid to the state for taxes, and mingled With other funds of the state. The money wbich the treasurer receives as such is kept by him in the vaults of the state treasury. It is so required by subdivision 1 of section 452 of the Political Code. If a judgment were for plaintiff in the.action, the treasurer, upon the controller's would be required,to ,repay the tax money out of taxes so illegally collected, and to W-l' the costs out of the general fund of the treasury. The money '(Qr was not originally paid to the treasurer. It did not pass through his hands, but came into the treasury thro\lgh other officers. iSi the only party in interest. ,;;But, notwithstanding the eleventh amendment, the state may, by .anl'tct of its legislature, permjt itself to be slled, either in a federal ,court or in its own courts. It ,is. cpnten<led by"the plaintiff in error that permission has been gr,anted in the present case by the provisions of section 3669 of the Political Code of California, which reads as follows:
"Sec. 3669. Each corporation; person,or association assessed by the state board of equalization, must pay to. the lltate treasurer upon the order of the controller, as other moneys to be paid into the treasury, the state and county, and city and county,. taxes each year levied upon the property 'so assessed to it or him by said board. Any corporation, person, Or association, dissatisfied with the assessment made by the board,upon the payment
of. ml;1e 'fa.'(es due upon· the llJssessmentcomplained of; and the 11. ve per cent. added, if to be added, on or before the first Monday in Februflry,:and the of notice with the controller of an to oogin an action, may, not later than the first Monday of February, bring an action against 'the state treasurer for the recovery of the amount of taxes and percentage so paid to the treasurer, or any part thereof, and in the complaint may allege any fact tending to sllow the .11legality of the tax; or the aSli\essment upon which the taxes are levied, in whole or in part. A copy of the complaint and of tbe summons must be served Upon the treasurer within ten days after the complaint has been filed, and the treasurer has thirty days within which to demur or. answer. At the time the treasurer demurs or answers he ma.y demand that the action betded In the superior court of the county of Sacramento. The attorney gener/ll must defend the action. The provisions of the Code of Civil Procedure relating to pleadings, proofs, trialS, and appeals are applicable to the proceedings hetein provided for. If the final judgment be against the treasurer, upon presentation of a certified copy of such jUdgment to the controller, he shall' draw his warrant upon the state treasurer, who must pay to the plaintiff the amo)lnt of the taxes so declared to have bE1en illegally collected, and the cost of such action, audited by the board of examiners, mnst be paid out of any money in the general fund of the treasury, which is hereby appropriated, and the controller may demand and receive from the county, or city and ,county, interested, the proportion of such costs, or may deduct such proportion from any money then or to become due to said county, or city and county. Such action must be begun on or before the first Monday in February of the year succeeding the year in which the taxes were levied, and a failure to begin such action is deemed a waiver of the rights of action."
By this statute the state of California has made a general provision whereby it consents to be sued in its own courts in actions 'offhe nature of the case at bar. Has it consented to be sued in the federal court? The state has the unquestioned right to select the forum in which it shall be sued, to prescribe the manner in which the suit shall be condticted, and to impose upon the prosecution of the action any condition that may be deemed proper. It may even retract its permission to be sued after an action has been begun. Railroad Co. v. Alabama, 101 U. S. 832. Examining the section just quoted, it will be seen .that conditions are imposed which are wholly incompatible with a consent to be sued in the United States courts. It is made a condition of the action that, at the time when the treasurer demurs or answers, he may demand that the case be tried in the superiorcourt of the county of Sacramento. That condition is a valid one, and it conserves a. substantial right to the state. It could not be complied with in an action in the United States court. No cause can be transferred from the United States circuit court for the Northern district of California to the superior court of the state of California for Sacramento county. that "the provisions of the Again, .it is provided in the same Code of Civil Procedure, relating to pleadings, proofs, trials and appeals are applicable to the proceedings herein provided for." Although practice in the federal courts conforms as nearly as may be to that of the state courts in actions at law, there are certain features in which their procedure is controlled by acts of congress, from which the federal courts are not at liberty to deviate in response to any provision of a state statute, and the clause of the language just quoted in reference to appeals could have no application whatever in a proceeding in the United States court. By this provision in regard to appeals, it was clearly the intention of the legislature to make the supreme court of
the state of California the Cdurt·1)flast resort fo'pass upon all questions which Iliightarise in such an action.. It was intended that the rights,qflitigl,J.Dts in such.lr su.it idlQij'ld be subject. to the construction that couit should finallyad'PPt. That provision, ,secures to the state the most substantial right which is conserved to it in the section jrrstquoted, andptesents a'n insurmountable obstacle to the prosecution Of the action in a Gonrt of the " '. 'But it is urged by the plaiIitiffin error that the Atlantic & Pacific Railroad Company Is not 81 citizen of another state, nor a citizen or state,"butilila.'COl1>?ratiohcreated under an act of subject of as an, for the federal congress for the e:x;press purpose of government,a,n,d is therefore not aiuvng those from whom, by the terms of,thellth amendment, the power to sue a state'is withheld. The re'ceiverstands upon the footingQf the corpbration itself. If the corpobad' tile right to sue .of' 'California, the receiver undoubthas succeeded to the right. ; It .is only where the jurisdiction of the United States courts depends 'upon diverse citizenship that the citizenship oUhe receiver is to be regarded. New Orleans v. Gaines' Adm'r, 138 U. ,S. 595, 11 ct 428; American Nat. Bank v. National Benefit & Casualty Co.,7Q Fed. 420; Brisenden v. Chamberlain, 53 Fed. 307. The effect of, theleventh amendment was to overrule the decision of the supreme court in the case of Chisholm v. Georgia, 2 Dall. 419, in which it haQ, been J:'!aid, under the terms of article 3 of the constitution, ,extending the judicial power of, the United States to controversies; between a state and the citizens of another state, that a state wassl1bject to a suit bya citizen of another state. Said Mr. ·Justice Matthews in Re Ayers,ubovecited: "The very object and purof the eleventh amendment wl'Jre to prevent the indignity of subjecting a state to the coercive process of judicial tri,bunals at the instance of private parties." In Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, it was held that the purpose of the eleventh amendment was to recognize the sovereignty o.f the state, and to declare that the jUdicial power of the V;nited .States was. ;never intendp.d by the framers of the constitution tO,extend to suits by individuals against a state, and that the amendme;nt ,should not be so construed as to inhibit only suits' at tlle instance of the particular classes of citizens named therein, but that it applied as well to suits against a state by its own citizens. The in that case was invoked upon the ground that jurisdiction the a federal questi9n was involved in the controversy. The principles announced in the decision are conclusive of the question which is now before us. But we find a further and complete answer to the contention of the plaintiff in error. The· jurisdiction of the United States court in the present caae is not invoked upon the gr,ound that the controversy presents a case arisi;ng under the constitution or laws of the United States. Nor can jurisdiction be claimed upon the ground of the diverse c,itizenship of the partie!!, since, as we have seen, the state itself is a party.. It must rest upop,some other grant of jurisdiction. The onl)' other grant under which it could be claimed is that which is contained in section 2 of article 3 of the constitution, declaring that the judicial power of the United States shall extend .to controversies "between a state and citizens of another state, * * * and between a
KNOX ROCK-BI.ASTING CO. V. RAIRDON STONE CO.
state or the citizens thereof and foreign states, citizens or subjects." The plaintiff in error must find in this provi&ion .his right to proceed in a federal court, and if the Atlantic & Pacific Railroad, Company is not a citizen of a state, or a citizen or subject of a foreign state, the controversy is not among those of which jurisdiction is conferred upon the United States courts by the constitution. It follows that the circuit court erroneously entertained jurisdiction of the cause. For want of jurisdiction the judgment of dismissal is affirmed.
KNOX ROCK-BLASTING CO. v. RAIRDON STONE CO. (Circuit Court, S. D. Ohio, W. D. June 21, 1898.) 1.
EQUITY PLEADING-FoRM OF PLEA.
A plea should state some single objection to the plaintiff's case which would be a complete defense either to the whole bill or to some distinct part of it.
SAME-PLEA IN PATENT SUIT.
A plea to a bill in the usual form, charging infringement of a patent, Is bad where it alleges that during a certain period the patented device was experimented with by defendant by consent of complainant, and that with respect to other occasions It did not infringe. A plea to the bill is inappropriate to suits in eqUity for infringement of a patent unless in very special circumstances.
This was a suit in equity by the Knox Rock-Blasting Company against the Rairdon Stone Company for alleged infringement of a patent. The cause was heard on motion to strike from the files a plea to the bill. Wood & Boyd and Bakewell & Bakewell, for complainant. J. R. Ramsey, for defendant. SEVERENS, District Judge. The motion to strike the defendant's plea from the files must be sustained. To a bill in the usual form, charging infringement of a patent, the defendant pleads that during a certain period the patented device was experimented with 'by the defendant by consent of the complainant, and that with respect to other occasions it did not infringe. A plea should state some single objection to the plaintiff's case which would be a complete defense either to the whole bill or to some distinct part of it. This plea does neither, but consists of matter which would be a defense for some of the period covered by the allegations of the bill and answers for the rest of the period. It has bei!n several times decided that a defense by plea is inappropriate to this class of cases unless in very special ,circumstances, and I think the objections to it are re-enforced in this case by the general rule of equity pleading to which I have referred. Sharp v. Reissner, 9 Fed. 445; Hubbell v. De Land, 14 Fed. 471-474; Korn v. Wiebusch, 33 Fed. 50; Union Switch & Signal Co. v. Philadelphia & R. R. Co., 69 Fed. 833-835; Chishohn v,Johnson, 84 Fed. 384. Such cases as LeatherlJee v. Brown, 69l!'ed. 590, are distinguishable. There the whole matter at