45 F. 81 -

BOWERS BOWERS

'V.

SUPREME COUNCIL AMERICAN LEGION OF HONOR.

81

'V.

SUPREME CoUNCIL AMERICAN LXalON OF HONOR.

(Circuit CotWt, N. D. CaU,fornw. January 26,1891.)
RBHOVAL OF CAUSES-TnrELY APPLIOATIOW-REI!A.WD.

Where a petition for removal is not filed at the time or before defendant is reqUired by the state practice to plead to the declaration or complaint, as provided in Act Congo March 8, 1875, (25 St. at Large, p. 435, § S,) the case must be remanded to the state court, whether motion to that efteot be made or noli.

At Law.

CampbeU & Campbell, for complainant. Wm. 0.: Flint, for defendant.
Before SAWYER, SAWYER, J. This action was commenced in the superior court of the city· and county of San Francisco, state of California, by filing a complaint verified October 30,1889, but it does not appear when the complaint was filed ·. Notice of appearance was served on plaintiff's attorney, dated November 12,1889, filed November 14,1889. On the same day, November 12, 1889, a stipulation was entered into by the parties bearing date· November 12, 1889, whereby defendant "may have ten days' additional time from this date in which to appear and plead in the above-entitled action." . Stipulation filed November ·15, 1889. This gave defendant till November 22d in which to plead, and consequently, November 22d was the day upon which defendant was required to answer in the regular course of proceedings under the laws of California, and on that day an answer was due. On January 4, 1890, defendant tiled a demurrer, and on the same day, January 4, 1890, a petition was filed to remove'the cause to thelJnited States circuit court. The petition was required by theetatute to be filed..At the Ume. or any time before, the defendant is required by the laws of the state, or the rule of the state court in which such suit is brought. to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court to be held in the district where such suit is pend'ng." . 2SSt. at Large, p. 435, § 8. The answer was due on Nooembe:r 22d. The petition not having been filed till January 4, 1890, was, therefore, too late, and the cause was not lawfully.removed. I>i:ron v. Telegraph Co., 14Sllwy. 17,38 Fed. Rep. 377; AWlfi,n v.Gagan, 14 Bawy. 151,39 Fed. Rep. 626. It must be remanded to the state court, whether motion to that effect be made· or not, under the requisitee· of section 5 of the act of 1875, and it is so ordered. v.45F.no.2-6

82

, RDlCRAL REPORTER,

vol. 4.5.

DEY et al" Railroad Commissioners; 11. CHICAGO, M.& ST;P.,Ry. Co.
{OircuU Court, N. D. Iowa, E. D. February 19, 1891.}
REMOVAL 01/ CAUSEs-J"URISDICTION-RAILBOAD COMMISSION.

, ·A 'suit brought by the state railroad commissioners to compel a railway company to 'obey the regulations of the commissioners cannot, be, removed to the federal court8\even though, the parties are citizells.of different, states,alld the answer raises a federal,questionj since such a suit, being in effect all 'attempt by the state to execute its laws, coula not have been originally brought in a federal court.

'.

in Equity. On motion to Bill to enforce orders of the railroad John Y. Stone, Atty. Gen., and Fou{ce,& John W. Carey, for defendant.

, ,', '" complainants.

SHmASj J . The statutes of the state of Iowa pro¥ide for the election of three persons to ioonstitute" the of, railroad: eommissionersof the state:oi Iowa," and among other powers and: conferred upon them it is provided .thaV'said pervision ofall railroadsin the state opE¥'ateq a,nd shall inquire into any negleot or 'violation of the lawln)f this state by, I\l)y railroad cor. porationdoing, therein," etc. It.is enacted that any person; firm, pr,corpora,tion complaining of anything' dOM or omitted ,tp be done by any,co,mmon,c8l'l'ier, subjecHo the statute, , may ,apply' to thecommissidners by petition, setting forth the :wrongs ,complained ofjand .it is· ma.de. thE;l dutyof sucJ;l complaint;:and .to make. a· . report in writing thereon of the facts ·in, the premises, and the madetbereon, by the boafd,a. C9PY ,of whichjs required to be served;,;lpon the COJ;Ximon carrier, anq:if,the carrier.refuses or neglects to obey the; order or.requ,iremellit of the-board, tbenit is made the duty of the cOJDmiSsionel'$to' apply, to the dis, trict or superior court in the county: wherein the prinaipaloffice of ,the ,"common carrier is keptjor of'ttny county in which the road is operated, , for the entry of a decree against tQe clirt?:ef'fol',the enforc,ement of the order of the board., , is rnadefor givingtioticll to the company of such fbr testimony and hearing in a summary }way, and for the issuan'ea ()f \v·rits ofinj unctionofotaerprocess' for ,'pelling obedience to toe mlder 'of the board; in case thai same is affirmed, and for the, imposition: in case'ofdisobedience to, the'injnne'tion issued,:"hieh court, aret6 be paid 'into the trea!llity, 'and 'onfloltilllfthereofis then to be 'paidrby'the countY treasurer to the state t r e a s u r e r , ' " ., Acting under the provisions of this statute, oneJE;:.;r. ;Little,iof Lima, Ohio, representing the Niagara Fuel Company of that place, filed a complaint before the board of commissioners of Iowa, alleging that the defendant company had wrongfully refused to transport certain tanks of oil from the station of the Chicago, St, Paul & Kansas City Railway Company in Dubuque to Eagle Point, where was situated the place of busi-

corn-