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TILDEN et al., California State Board of Harbor Com’rs, v. UNITED STATES.

Circuit Court of Appeals, Ninth Circuit.

October 17, 1927.

No. 5253.

Courts <g=»303(2) — Action for penalty against California harbor commissioners for violating federal statute held not “suit against state” (Safety Appliance Acts [45 USCA §§ 2,8-10]).

Action by United States against California state board of harbor commissioners to recover a penalty for violation of Safety Appliance Act March 2, 1893, § 2, amended by Act March 2, 1903 (45 USCA §§ 2, 8-10 [Comp. St. §§ 8606, 8613-8615]), in the operation of State Belt Railroad was not a “suit against the state,” since State Belt Railroad, though belonging to state, is a common carrier engaged in interstate commerce, and required to comply with federal Safety Appliance Act.

[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suit against the State.]

In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge.

Action by the United States against C. L. Tilden and others, comprising the California State Board of Harbor Commissioners, operating the State Bolt Railroad. Judgment for plaintiff, and defendants bring error.

Affirmed.

Leon E. Morris, of San Francisco, Cal. (Edward M. Jaffa, of San Francisco, Cal., of counsel), for plaintiffs in error.

George J. Hatfield, U. S. Atty., and Thomas J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., and M. C. List, Sp. Atty., of Washington, D. C.

Before GILBERT, HUNT, and RUD-KIN, Circuit Judges.

GILBERT, Circuit Judge.

In the court below the plaintiffs in error, who constitute the board of state harbor commissioners of California, were adjudged to pay a penalty of $100 for violation of section 2 of tb© *968Safety Appliance Act, approved March 2, 1893, as amended by the Act of March 2,1903 (32 Stats. 943 [Comp. St. §§ 8606-8613-8615; 45 USCA §§2,8-10]).

The writ of error presents the questions which were before this court in MeCallum v. United States (C. C. A.) 298 F. 373, 38 A. L. R. 1143, in which we held that such an action was not a. suit against the state of' California, that the State Belt Railroad, traversing the harbor front of San Francisco, and belonging to the state, was a common carrier engaged in interstate commerce, and that it was required to comply with the federal Safety Appliance Act. No authorities are now presented and no reasoning is advanced which require a reconsideration of the conclusion which was there reached.

The judgment is affirmed.

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