KIERNAN V. MULTNOMAH COUNTY.
KIERNAN v. MULTNOMAH COUNTY.
(Circuit Court, D. Oregon. July 28, 1899.)
CONSTITUTIONAL LAW-DUE PROCESS OF LAW.
'l'he provision of the fourteenth amendment to the constitution against depriving a person of his property without due process of law is a prohibition upon the states, and not upon individuals; and a suit to enjoin a threatened taking of complainant's property, which it is alleged will be without any authority of law, does not involve a federal question. 1 A suit to obtain a construction of a state law, which complainant alleges is being misinterpreted and misapplied in violation of his constitutional rights, does not involve a federal question.
JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION.
This was a suit to restrain a sheriff from selling complainant's property for certain taxes. Charles F. Lord and A. O. Spencer, for complainant. Alex Bernstein and M. L. Pipes, for defendant. BELLINGER, District Judge. This is a suit by a resident and citizen of the state of Oregon against the sheriff of Multnomah county to restrain the collection of certain taxes for which the sheriff has a warrant, and under which he threatens to sell complainant's property for unpaid assessments. The substance of the complaint is that the tax and proceeding are not authorized by the law of the state in pursuance of which the sheriff is acting, and that to permit the sale of the complainant's property in the manner threatened would be to take his propert;y "without due or an;y process of law, and in violation of section 1 of article 14 of the constitution of the United States of America, in that the same would abridge the privileges and immunities of the complainant, and deprive him of his real properties," described in the complaint, "without due protection of law." The fourteenth amendment has reference exclusivel;y to state action, and not to any action b;y individuals. It is a prohibition upon the state to "make or enforce an;y law which shall abridge the privileges or immunities of citizens of the United States," or which shall "deprive an;y person of life, libert;y, or propert;y without due process of law," It prohibits state legislation in violation of these rights. It does not refer to an;y action b;y private individuals (Virginia v. Rives, 100 U. S. 318; U. S. v. Cruikshank, 92 U. S. 542; Civil Rights Cases, 109 U. S. 11, 3 Sup. Ct. 18), otherwise every invasion of the rights of one person by another -would be cognizable in the federal courts under this amendment. The questions sought to be presented in this case relate to the interpretation to be given a law of the state, and the complaint is that this law is being misinterpreted and misapplied, to the injury of the plaintiff in his rights of propert;y. In all such cases, where there is not the requisite
1 For jurisdiction of federal courts in cases involving federal questions, see note to Bailey v. Mosher, 11 C. C. A. 308, and, supplementary thereto, note to Montana Ore-Purchasing Co. v. Boston & M. Consol Copper & Silver Min. Co., 35 C. C. A. 7.
95 FEDERAL REPORTER.
diverse citizenship and amount in controversy to give the court jurisdiction, the remedY' for the injuries complained of is in the state courts. The bill ofcolllplafnt is dismissed, '
INTERNATIONAL TRUST CO. v. T. R TOWNSEND BRICK & CONTRACTING CO. (two cases). 1 (Circuit Court of Appeals" Sixth Oircuit. Nos. 642, 643.
July 5, 1899.)
JuRISDICTION OF FEDEnAL COURTS-CITIZENSHIP-PARTIES.
The jurisdiction'of a federal court is not defeated in a suit brought only against defendants who are citizens of other states than the complainant because the bill discloses that there are other citizens of the same state with complainant who might properly have been made defendants.
ApPEAL-RIGHT TO QUESTION EQUITY JURISDICTION-WAIVER.
Where a railroad company :filed a bill in, equity, alleging its inability to meet its obligations, and praying the coUrt to appoint a. receiver to operate its road, and to prese'tveand adluinister' its property in the interests of its creditors and stockholders, a mortgagee, which entered a voluntary appearance in the SUit, m1d also answered, and cOntested' a petition of interventi()n ,filed by a creditor seeking to establish a claim, without theequitablejurisdktionof the court to entertain the suit or of intervention, cannot raise ,the of such jurisdiction for the first time on appeal. ' ,
:The doctrine announced in Fosdick v. Schall, 99 U. S. 235, and the cases follQwing it, is that the current income of a railroad is primarily applicable to the payment .of its operating expenses, including proper equipment and, ne<;essary and that SHch expense8arean equitable charge on the inci'Jmeelirlled during' a' receivership, though' incurred previOUSly by the company, within such reasonable tIme as shall be fixed by 'the court, and , regard tq ,w:be,theror not income bas beenqlverted; but the right preference eMe:ll,W;.to incqme. and, th\l rwe doeS, not. authorize a court, to displace :op.the corpus, of property in favor of supply creditors, except Where, and to the extent'that, income which should in , , equity have been applied t6 the payment of their cla;J:ms: has been'diverted benefit of :tM lieplI.oldel·s,' ¢ltlJ,e).', h;vlthe ofintere!lt there,f(lr of in permanent improvements on tMl!toperty; aJJ.d where tllel'e has no suchdivernion, either before or'dmlng the receiversHip, and there ar,e :qo surplus earnings of the receiv;llrship,!il.supply credltor'of th'e company not' entitled to' payment from the prolleeds (If the road, ,when sold, in preference to. the mortgagees. a, building 11-,' bridge on its line, though such brIdge con;strtuted a permatlent be,tterment of"tlle property, is not !e!J.titled to preferential payment over 'lin existing mortgage ,fro'm the proce-eds: of the l'oad' when sold under foreClosure.. " " ;
" A. claim
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, .Appeals" ern Di,viljlion
, Thislsa,n appeal from a decree awarding: pr,iqrity over pre-existlng rljJlroadmortgages to adept the tp.OJ:tgagor compallrY to the aPveIlee for' the' construction 'of the pier and' abutments of a railroad bridge over the Cuyahoga river in the city of Cleveland, Ohio. T):lis cIaip:r W8S/ asserte,d by an intervening petition fill!d by the'appelleeln:'tM case of Cleveland, C. & 'S. Ry. Co. v; Knickerbocker ,Trust CO.,86 Fed. 73; a' cause periding in the cir1
of the Norther,n
qf' the l)).lited S'tates for
Petition for rehearing pending.