298
I'EDERAL REPORTEB,
vol. 41.
corporation; the other gives the corporation a residepce in a state where it has agents who transact its corporate business there, and where, under thelll.ws of that state, it may beaued, and service of process had upon such resident Being impressed with the correctness of the latter view, and holding the defendant to be a resident of this state, it necessarily follows that it is precluded from removing the suit under the act of August 13,1888. To hold otherwise would"deprive the alien natural person who is a resident of the right to remove, and confer such right alone upon an'aliellcorporation similarly situated. The statute is equally applicable to both classes of persons, and, without inquiring into the status of defendant touching its residence elsewhere,-nothing appearing in respect of it in the petition for removal,-'-the court is of opinion that,owing to the fact of the defendant's residence being within this state, it is not entitled to remove the suit. The motion will be sustained, and the cause remanded to the district court of Nueces county.
STATE OF TEXAS 11. DAY LAND
&
CATTLE CO.
(Oireutt 001/,rt, W. D.TBXa8. February 5, 1890.) RBMOVAL Oll' CAUSES-FEDBRAL QUUSTION-GRAZING PUBLIC LANDS-CRllIflNAL PROSBOUTION. ,. ,
Gen. Laws Tex. 1884, c. 83, § 6, provides that it shall be unlawful for any person, firm, or cory,oration to herd or oatUe on any vacant publio or school lands, , unless,leased from proper authority. Section'j provides that the viotation of the P,reCeding's,ection hall oonstitu,t,e,a ml,sdem,eanor, and sha,ll be PuniShed, by a fixed ,fine. SectiQu8 fUf1jher that tue owner of any cattle so herded or grazed shall be Hable in a certain sum l to be recovered in a civil action, without affecting the criminal pr6lJeedings proVided iIi the foregoing sections. In an action by the it was alleged in the petition that defendlHlt unlawfully iuld knowingly fenced in a certa1Ii tract of the pu blic and school lands of the state, and unlawfully used the same for grazing and herding purposes, without any lease; that by reason of this unlawfUl inclosure of land, and unlawful herding and grazing on saidllll1dl'defendantwss liable to plaintiff in the amount fixed. by the statute. 8S penalty. , HeW that, according,w the allegations of the petition, the action was a oriminal aotion, under section 7 of the act, and, as suoh, was not subject to rllmoval to the oircuit oourt. , i 8"
,West &: McGou'1l.. Rnd Mr. F'i8her, for defendant. attorney, 8
I.H. RobertBan,Dist. Atty., andJ. ,S. .Hogg, Atty. Gen., for plaintiff.
On motion to remand.
state of Texas"by its. f\.ttorney general and district suit in the district court of Travis county, Tex., the following are the subst!J.ntjal allegations of the petition: ", "That heretofore, to-wit, on or abOut the first day of September, 1885, the unlawfully and knOWingly made, constructed, and built a certain wire fence, consisting of posts at cou,venient intervals, with barbed wire stretched around said posts, upon,an,d,inlillosing 203,000 acres, more or less, of the pUblic domain of the state of Texas, situated in Greer county, Texas;
STATE OF TEXAS tl. DAY LAND &; CATTLE CO.
229
which said land so inclosed is represented upon the plat or sketch thereof hereto attached, and marked ·Ex.hibit A,' and hereby made a part hereof. The said defendant, at the time named, constructed its said fence upon and around three sides of the land shown by said plat, and inclosed the other or fourth side of said land by line riding. until about February, A. D. 1886, at which time defendant constructed the fourth side of said fence, and pletely inclosf>d the said land with said wire fence, and from said date up to the present time has had and held said fence around said land, and has and held, and still so unlawfully holds, the posspssion of the said land, as afore" said. That the said land embraced in the said inclosure of the defendant, as aforesaid, and represented upon the plat hereto attached, as aforesaid, and isa-partof the public domain belonging to the plaintiff. one-half of which has been by law dedicated to the public free schools, anll the other half thereof to the payment of the public debt of the plaintiff; but that same has never been surveyed into sections, or otherwise, or dividl'd up in any manner, That the defendant did so construct, and has so maintained, its said fence around and upon the land. as aforesaid, without haVing ohtained a cuted kase of such land from the proper authority, duly recorded in the county where said land lies, or in Wheeler county. the county to which Greer county has been attached for judicial purposes, at the date of the construction of said -fence. That without any lease upon said land, as aforesaid, the defendant has unlawfully herded and detaint'd for grazing purposes, by said fences, and by line riding and herding. large numbers of cattle, to-wit, about twenty thousand bead of cattle, and large numbers of horses, to-wit, about Olle thousand head of horses, on said land embraced within the said fencl', lind shown upon Raid plat, from the 1st day of :-3t'ptember, 1885, down to the present time; and it so continues and now doc>s unlaWfully herd and detain upon said land for graZing purposes said hOl'ses and cattle, as aforesaid, not holding said cattle upon said land in gathering the same for or conveying to and from mar. ket, or in moving the same from one section of country to another, but holding and. herding the same .there permanently for grazing purposes, as said. Th'lt by reason of the aforesaid unlawful inclosure of the said land by the defendant, and by reason of the aforesaid unlawful loose herding and taining said .cattle and horses upon said land for grazing purposes, by said fence, and by line riding, as aforesatd, the defendant is liable and bound to pay to. the plaintiff the sum of one hundred dollars for each of said three years past on (jach .six hundred a.nd forty acres of land embraced in said two hundred and three thousand acres so inclosed and grazed Ul:OII, as aforesaid, whiCh makes in the aggrl'gate318 tracts of land, upon which one hundred lloUars per year is due, or the full sum of thirty-one thousand eight hUndred dollars per year, and for the said three years from September 1, 1885. down to Septhe full sum of tember 1, 1888, there is due from defendant to five thousand four hundreddoJlars, with interest thereon according to The defendant filed a petition and bond in the said district court for the removal of said cause to this court, on the ground that the cause was one arising under the laws and tJ;eaties of the United States, because the lands upon which the alleged trespass was committed were lands that did not belong to the state of Texas, but did belong to the United States, and were not within the limits and under the control of the state of Texas, but were in Greer county, a part of the Indian Territory ,and that, on the said lande, the defendant was a tenant at will of the United States. The record having been filed in this court, a motion to remand has been 'made· upon several grounds, only one of which it is necessary toconsider l to-wit, Whether the suit is such a suit of a civil nature as is
FEDERAL
'em;braced the r,amov;al acts.of congress. The petitiQIl refers to no particular statute of the state, but it is claimed to be, and evidently is, brought to recover the penalties provided for by,chaptler:33, Gen. Laws Tex. 1884:, of which the following are the sixth; seventh , and eighth sections: "Sec. 6. It shall, be unlawf111 f.orany,person, firm, or corporation to herd, or aid in herding, or cause to oe herded, loose herded, or detained for grazing by line riding, any cattle, borses, mulp.s;asses, sheep, or goats on any vacant public domain, '$chool, universi ty,or, asyl urn lands within tbis state, unl pSS the same shall have been leased from the propel' anthori ty: provided, that this tion of this act ,shall not apply to Persons, herding such stock, in gathering for or carrying to and from market, orIn moving the same from onesedion of the country to another. Sec. 7. Any person who shall knOWingly violate any of the provisions in section 6 of this act, shall be gl1i1ty of a misdemeanor, and, u,on conviction, shall be fined one hund'I'ed dollars for each year, or part of a ,.ear, for each section, or part,of aSaction, (rpeaning six hundred and forty aCres of land, ol'Jess, whl'ther surveyed in sections or not,) which shall be used contral'y to the provisions of this act. Sec. 8. The owner of the cattle, horses, or sheepshaU be liable. to the state in the sum of one hundred dollars for each year, of a year, for each six hundred and forty aCres of land, or tract of less size, that may be used contrary to the provisions of this aot, v.-hich may be recovered in a civil lWtion, without affecting the criminal ecutioRS prescrived herein." On the hearing of the motion to remand, it seemed that the suit was one brought un<;ler the eighth section of said act, and was by the law and in fact a suit of a civil nature, II suit for trespass, in which the damages were liquidated by the statute. Comparison of the petition and the said statute, however, shows that the suit is not brought under the eighth section of said act, but is brought to recover the penalties dein clared _ the seventh stlction as attaching for the violation of the sixth sectio1;1, for which the statute provides a criminal prosecution, but no civil action. Also, at the hearing, it was assumed that the sixth and seventh sections of said act of 1884 were in force; but an examination of the statutes show that the said sixth and seventh sections are probably repealed by chapter 99 'of the Acts of 1887, (see Gen. Laws Tex.; Acts 1887,p.83,) as section 18 of the said act fixes different penalties violations of law. The wst whether a suit at law or in for the uity is a: suit of a civil nature,or of II criminal nature, is the nature of the right asserted and at issue. · Ames Y. Kansa8, 111 U. S. 460, 4 Sup. Ct. Rep. 4:-37. See, also, Boydv. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524; Coffey v. U. S., 116 U, ,S.436, 6 Sup. Ct. Rep. 437. It is not the form, but the nature, Qf the action that determines the question of removal. See State v. Rail1'qad Co.,' 37 Fed. Rep. 497, where Judge an exh(tustive Qpinion goes over the whole subject, holding that a suit brought to reCOver a penalty for violation of il.Jaw, even when the remedy provided by the statute was a civil aqtion, was not a suit of a civil na.tu21e. Section 6 of the, act ·of 1884 declares the acts sued for herein to be unlawful; and section 7 ofthe same act provides that "any person who shall knowingly violate any of the provisions in section 6 of this act shllJI be guilty of a misdemeanor, and, upon conviction, fined , I I :
GILLESPIE fl. UNION STOCK-YARDS NAT. BANK.
281'
one hundred dollars, "etc. As the suit is brought to enforce these sections, the action is clearly one to enforce a criminal law of the state. The nature' of the right asserted is necessarily criminal, and not civil. That the criminal la.w sought to be enforced maybe repealed, so that no recovery at all can be had, does not change the nature of the Buit. The motion to remand will be sustained.
GItLESPIE
et al.
'D. UNION STOCK-YARDS NAT. BANK:
et ale
(Circuit Court, N. D. Illinois. July, 1888.) B.umnro--APPLICATION OF
A defendant firm selected cattle, which plaintiffs paid for and shipped to Chicago, where they were sold by defendants. Two of the plaintiffs, corroborated by a third witness, te.stified that they shipped the cattl.e as their own, wbile the defendant who selected them testifteli that they were not to be shipped as plaintiffs' property, but they were to receive a sllecilic sum per car' for their advancements and trouble. On sale of the cattle, tIckets sbOWlUg weight and price were giVen defendant bank for collection. The bank knew that defendant firm received abd sold cattle for shippers, and, on the day a shipment from plaintiffs arrived. received a draft drawn by plaintiffs on defendant firm. but faUed for over 24 hou,rs to. give notice of its dishonor, and appropriated the proceeds of this and two subsequent shipments to the :payment of a note and the overdraft of defendant firm. Held, that the ownm;shlp or control of the cattle was in plaintiffs, and the had sufficient notil;le to entitle them to the proceeds,as against the appropriatioll by the bank to the account of defendant firm.
FuNDs.'
In Equity. Bisbee, Ahrens & Decker, for' complainants. Peckham & Brown, for defendants. GRESHAM, J., (oraUy.) A. J. Gillespie, John F. Gillespie, and T. E. Gillespie, live-stock commission merchants at Kansas City, brought this suit in equity to recover the net proceeds of three consignments of cattle shipped by them to F. J. Rappal, Sons & Co., at Chicago. Rappal, Sr., selected the cattle at Kansas City, had them weighed, and delivered the weight tickets to Gillespie & who paid for and shipped the cattle to Chicago. Two of the Gillespies swore the contract with the senior Rappal was tha.t Gillespie & Co. Ilhould ship the cattle as their own, and have control ofthem until sold at Chicago and paid for.· In this they were fully c.orroborated by the witness James. The senior Rappal, on the other hand, swore that that was not the arrangement; that the agree-' ment was that the Gillespies should furnish the money for the purchase of the cattle, which they did, and ship them as the property of Bowen & Co.; and that the Gillespies should receive a specific amount per car for their advancements and trouble. The two sons testified that the tract was as their father, the senior Rappal, testified; but they admitted that all they knew of the agreement was what their father·had told them. On this point there is a slluare conflict between the two Gillespies and J.ames onone side, and the senior Rappal on the other, and, his state-
