229 F. 11 | 5th Cir. | 1916
(after stating the facts as above).
“Sec. 24. The District Courts shall have original jurisdiction as follows:
“First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises .under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens or subjects. No District Court shall have cognizance of any suit (except upon' foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in*15 action if no assignment had been made: Provided, however, that the foregoing provision as to the sum or value of the matter in controversy shall not he construed to apply to any of the cases mentioned in the succeeding paragraphs of this section.”
Subdivision 8 of section 24 of the Judicial Code confers additional jurisdiction upon the District Courts of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. The Commerce Court having been subsequently abolished, the exception will doubtless fail.
For more than 40 years causes involving these issues, colloquially and often judicially termed “federal” questions, have been removable from a state court to a United States court. This appeal's from section 2 of the act of Congress enacted March 3, 1875. This provides,:
“That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district.”
Abolishing the Circuit Court, the Judicial Code (section 28) adopts the language of the act of 1875 just quoted, except that the word “District” is used instead of the word “Circuit.” It is clear, then, if it sufficiently appears from the pleadings that the controversy before the court arises under the Constitution and laws of the United States, by section 24 of the Judicial Code, the District Court would have original jurisdiction had the suit been brought therein. If such is found to be the case, then by virtue of the Judicial Code (section 28), when brought in the state court, it is removable to the District Court of the United States for the proper district.
Now, does the declaration disclose that the suit was one arising under the Constitution or laws of the United States? The amendment known as the Carmack’ Amendment, of June 29, 1906, to the Hepburn Act of Congress, has been set out in the statement heretofore made. It is intended to define the liability of a common carrier, like that charged here. The declaration in the state court alleges that the defendant companies are common carriers. The amendment related to contracts for transportation from a point in one state to a point in another state. The declaration alleges that the car of cotton seed oil was shipped out of Vicksburg, Miss., and that: its destination was Cincinnati, Ohio. The act is designed to make the railway receiving the initial shipment liable for loss, damage, or injury to the property shipped, caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or from whose line or lines such property may pass. The declaration recites that the oil was shipped from Vicksburg over the line of the Mississippi Company and was to be delivered at Meridian to the Alabama Great Southern Railway, and was to be routed by the Queen & Crescent to its destination To the declaration was attached, as
“Consigned to order of shippers, destination Cincinnati, state of Ohio. Notify American Cotton Oil Co. at Cincinnati; state of Ohio. Route Q. & C. [by which is meant Queen & Crescent], Car initials A. C. O. X. Car No. 578. One tank of crude oil,” etc.
In addition, the declaration alleges that it was an interstate shipment; that it was delivered by the Mississippi Railway to the Alabama Railway -at Meridian; that, thus received, it moved from Meridian en route to Cincinnati, over the lines of the Alabama Railway, but said car never reached its point of destination, and the oil in question was lost or wasted en route and never delivered. The suit is brought for loss, damage, and injury. The amount claimed was over $3,000. Had this declaration been filed in the proper District Court of the United States, at a glance, it would have been seen to be a suit arising under a law of the United States. That law, of course, is the Carmack Amendment, designed to give relief to shippers in interstate commerce from just such injuries as the plaintiff in the state court alleged. The nature of the injury 'and the validity of the remedy is referred to in the opinion of the District Court in the Riverside Mills Case, 168 Fed. 990. That is arises under the Constitution is evident. The opinion just quoted, holding the amendment constitutional, was questioned with great ability by very eminent counsel soon to become a member of the Supreme Court, but the validity of the amendment in all respects was by that court upheld.
It is true that the plaintiff in the state court in its declaration made no formal mention of the Carmack Amendment, but substantial averments to that effect were clearly made, and this court will not, of course, look solely to'the form, but to the substance also. Indeed, it is plain that, but for the Carmack Amendment, there would have been no semblance of jurisdiction in the state court. The declaration alleges that tire car of oil was delivered by the Mississippi Railway to the Alabama Railway, at Meridian, in good condition, and without exception. The Mississippi Railway was then conceded to be not at fault. Warren county, where the suit was brought in the state court, is on.the western boundary of Mississippi. Meridian, where the car and oil were delivered in good condition to the Alabama Railway, is on the eastern boundary. .There was obviously no local jurisdiction over the Alabama Railway. In the absence of tire national law, the plaintiff then would have been helpless. In Hutchinson on Common Carriers, § 1347, it is declared:
“In the case of successive lines of carriers, over all of which the goods must pass in order to reach destination, it would not be enough to show that the goods had never reached such destination, and must, therefore, have been lost or stolen somewhere upon the route; but, unless the first carrier by express or implied contract has assumed responsibility for the whole journey, the carrier by' whose negligence or omission of duty the loss has occurred must be singled out, and the responsibility must be fixed, upon him by the proof. Nor in such a case could the difficulty in fixing the responsibility where it properly belonged be obviated by suing all the carriers jointly over whose lines it was necessary for the goods to pass. For, unless it could be shown with which of them the fault lay, none of them could be held liable*17 without proof of a partnership or of some such association as would make them jointly and severally liable for each other’s faults. And the inconvenience to the owner of the goods resulting from this rule is, as we have seen, the principal argument in favor of what is known as the doctrine of Mus-champ’s Case, and shows the importance to the shipper of a through contract with the first carrier upon the route, where that rule does not prevail.”
But the Carmack Amendment made the first carrier assume responsibility. Over two years after the Riverside Mills Case was decided, the Supreme Court of the United States again considered this most salutary provision. It was in the case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. It held that:
“The Carmack Amendment legislated directly upon the carrier’s liability for loss of and damage to interstate shipments.”
In the first paragraph of the opinion, Mr. Justice Burton, speaking for the court, seems to determine the question here at issue. He said:
“The answer relies upon the act of Congress of June 29, 1906, being an act to amend the Interstate Commerce Act of 1887, as the only regulation applicable to an interstate shipment, and avers that the limitation of value, declared in its bill of lading, was valid and obligatory under that act. This defense was denied. This constitutes the federal question and gives this court jurisdiction.”
This opinion is also illuminative as to the general character of this clause of the Interstate Commerce Eaw.
“The significant and dominating features of that amendment,” said the learned Associate Justice, “are these: First. It affirmatively requires the initial carrier to issue ‘a receipt or bill of lading therefor’ when it receives ‘property for transportation from a point in one state to a point in another.’ Second. Such initial carrier is made ‘liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it.’ Third. It is also made liable for any loss, damage or injury to such property caused by ‘any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass.’ Fourth. It affirmatively declares that ‘no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.’ ”
It is not intended to intimate that jurisdiction of injuries of a general and civil nature in violation of this amendment may not be redressed in the state courts. In other words, the state courts have original jurisdiction of such issues. It has been held that where the action is not penal, but civil and transitory, it might be asserted in a state court as well as in those of the United States. Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516. That was a suit against an initial carrier in an interstate shipment. It, like this, was based on a failure to deliver goods shipped in interstate commerce. The carrier insisted that the state court had no jurisdiction and that the complaint could only be made under the provisions of sections 8 and 9 of the Interstate Commerce Act, before the Interstate Commerce Commission, or in some District or Circuit1 Court of the United States. The Supreme Court held otherwise, anri conceded the jurisdiction of the state court. It made, however, thi important statement; Mr. Justice Eamaf rendering the opinion:
*18 ‘The real question, therefore, presented by this assignment of error, is whether a state court may enforce a right of action arising under an act of Congress.”
The language “arising under an act of Congress,” of course, imports “arising under the Constitution and laws of tire United States.” There, then, was a recognition of the character of the right of action, which, as stated, was the same as in this case. But that was not a case of removal. While, then, the state court has original jurisdiction of a right of action arising under an act of Congress, such action may be removed to a court of the United States. In the case of Louisville & Nashville R. R. Co. v. Mottley, 211 U. S. 149, 29 Sup. Ct. 42, 53 L. Ed. 126, the court declared:
“It is the settled interpretation of these words, as used in the statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.”
It follows that, when the plaintiff’s statement does show that it “is based upon the laws or that Constitution,” jurisdiction in a court of the United States does exist. To determine whether or not a case arises under the laws of the United States, the following cases cited and discussed in the very satisfactory brief of counsel for the appellants will be found additionally instructive: Tennessee v. Davis, 100 U. S. 264, 25 L. Ed. 648; Nashville, C. & St. L. Ry. v. Taylor (C. C.) 86 Fed. 177; Texas & Pacific Ry. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Seaboard Air Line Ry. v. Duvall, 225 U. S. 477, 32 Sup. Ct. 790, 56 L. Ed. 1171; St. L., I. M. & So. Ry. v. Taylor, Adm’r, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; Feibelman v. Packard, 109 U. S. 421, 3 Sup. Ct. 289, 27 L. Ed. 984. Indeed, if the declaration presenting the plaintiff’s cause of action to the circuit court of Warren county had been filed in the District Court of the United States for the Western Division of the Southern District of Mississippi, it would have required no alteration to obtain standing there, save the heading setting forth the designation of _ the court from the action of which redress was sought.
The formidable array of authorities cited by the learned counsel for the appellee in their brief merits careful attention. The Wallace Case, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516, supra, has already been considered. Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. 544, 28 L. Ed. 542, is also relied upon to sustain the contention of the defendant in error. That, however, was a habeas corpus case,’and the court held that Congress had not undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction to issue writs of habeas corpus, and subject to the exclusive authority of the national government, in its own courts, to determine whether persons held in custody by authority of the United States were properly so held, the states have the right by their own courts or judges to inquire into the grounds upon which any person within their respective territorial limits is restrained of his liberty, notwithstanding the illegal restraint may arise from a violation of the Constitution and laws of the United States. That ruling, while instructive, is in no sense de
In the case of Germania Insurance Co. v. Wisconsin, 119 U. S. 473, 7 Sup. Ct. 260, 30 L. Ed. 461, cited by appellee, the true issue was whether or not a certain person was an agent of a nonresident insurance company; that is to say, a case in which the state itself was a party, attempting to enforce statutory penalties on the company for doing business in the state without complying with the laws. Obviously that did not present a question arising under federal law.
Ames v. Kansas ex rel. Johnson, Atty. Gen., et al., 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482, also cited, was a proceeding in the nature of quo warranto, instituted by a state in its own courts to try the right of a corporation to exercise corporate powers within the territorial limits of the state; it involved also the right of removal. There, in a learned and extended opinion by Chief Justice Waite, the action of the lower court remanding the cause was reversed. The decision was based largely upon rulings of Chief Justice Marshall in Osborn v. Bank of United States, 9 Wheat. 825, 6 L. Ed. 204, who declared :
An. act of Congress “Is the first ingredient, * * * is its origin, is that from which every other part arises.”
And upon the case of Cohens v. Virginia, 6 Wheat. 264, where on page 379, 5 L. Ed. 257, Chief Justice Marshall declared:
“The jurisdiction of the court, then, being extended * * * to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction must sustain the exemption they claim on the spirit and true meaning of the Constitution, which spirit and true meaning must be so apparent as to overrule ihe words which its framers have employed.”
In the case of Starin v. New York, 115 U. S. 257, 6 Sup. Ct. 28, 29 L. Ed. 388, upon which appellee places reliance, the question was whether the city of New York has the exclusive right to establish ferries Between Manhattan island and the shore of Staten Island, on the Kill von Kull. This was a removal case. There Chief Justice Waite declared that the character of a case is determined by the questions involved, citing Osborn v. Bank of the United States, 9 Wheat. 825, 6 L. Ed. 204, supra. He also stated, on page 258 of 115 U. S., on page 31 of 6 Sup. Ct., 29 L. Ed. 388:
“It is not pretended that the United States have in any manner attempted to interfere with the power of a state to grant exclusive ferry privileges across public waters between places within its own jurisdiction. * * * ”
For the reason that the decision of the question involved did not depend on the Constitution or laws of the United States, and for the further reason that there was no such separate controversy as would enable one of the defendants to remove the case, it was remanded.
In Bock v. Perkins, 139 U. S. 628, 11 Sup. Ct. 677, 35 L. Ed. 314, et seq., also cited, a marshal of the United States was sued for trespass for seizing property in the performance of his duty. There Mr. Justice Harlan stated for the unanimous court:
*20 “A case, therefore, depending upon tbe inquiry whether a marshal or his deputy has rightfully executed a lawful precept directed to the former from a court of the United States, is one arising under the laws of the United States; for, as this court has said, ‘cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted’ — citing Tenn. v. Davis, 100 U. S. 257, 25 L. Ed. 648; Railroad Co. v. Miss., 102 U. S. 135, 26 L. Ed. 96.’’
The right of removal was upheld.
In the case of Tennessee v. Union & Planters’ Bank, 152 U. S. 464, 14 Sup. Ct. 654, 38 L. Ed. 511, it was held that the court had no jurisdiction either original or by removal from a state court, as one arising under the laws of tire United States, unless that appears by the plaintiff’s statement of his own claim. But, as stated, that does abundantly appear in the case now before the court.
In Devine v. Los Angeles, 202 U. S. 313, 26 Sup. Ct. 652, 50 L. Ed. 1046, there was a question of original jurisdiction. This was sought by'allegations that the defendants’ adverse claims to the surface and subterranean waters of the Los Angeles river were based on an erroneous construction of the treaty of Guadalupe Hidalgo, the act of 1851, and certain state acts and city ordinances. Mr. Chief Justice Duller, for the court, said;
“A. bill in equity will not lie to dispel mere verbal assertions of ownership or to adjudge statei statutes and charters unconstitutional and void. If the statutes and charters are unconstitutional, they are void and cannot constitute a cloud on title.”
And further that:
“Where complainant claims title .to land in California under Mexican grants confirmed by the Board of Band Commissioners, as the state of California is not in the line of such titles,, a statute of that state conferring water rights on a city does not deprive complainants of their property or impair the obligation of any contract, as the state can only confer whatever rights in such waters had vested in it.”
The court also held that the jurisdiction of the federal question must appear necessarily in the statement of the plaintiff’s cause of action, citing Third Street Ry. Co. v. Lewis, 173 U. S. 457, 19 Sup. Ct. 451, 43 L. Ed. 766. Since in this the declaration of the plaintiff'in the state court, as we have seen, in practical substance sets out its right, under the amendment to the act of Congress regulating interstate commerce, this case, while valuable in a general sense, is not particularly illuminative as to tire duty of the court in the utterly differing case before us.
In Bankers’ Casualty Co. v. Minnesota, 192 U. S. 373, 24 Sup. Ct. 325, 48 L. Ed. 484, an action waV commenced in the Circuit Court by a citizen of one state against a railroad company, a citizen of another state, for damages for a loss of a registered mail package, where the plaintiff relied on principles of general law applicable to negligence and to the liability of defendant, if there was negligence, the fact that the suit involved the relations of the railroad company to the government did not put in controversy the construction of any provision of the Constitution or of any law of the United States on
It is true, as is plausibly contended by counsel for defendant in error, that in Gold Washing & Water Co. Case, 96 U. S. 203, 24 L. Ed. 656, and in a number of cases to sustain removal, it is said: “It may become necessary to give a construction to the Constitution or laws of the United States.” But in that case, not only did Mr. Justice Bradley dissent, but the court, Chief Justice Waite delivering the opinion declared that the “decision is to be considered as conclusive only upon the question directly involved and decided.” The learned justice also adds, on page 203 of 96 U. S., 24 L. Ed. 656: “The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved.” Now it is difficult to conceive a case brought for violation of the Carmack Amendment of the Interstate Commerce Law which does not depend upon the operation and effect of that law. The true rule, we think, is very properly stated in Black’s Dillon on Removal of Causes, § 109, pp. 180, 181, where a federal question is defined to be:
“A controversy or dispute between the parties, and that controversy must be not merely upon the question oi“ fact, but upon the validity, interpretation, effect, or applicability of the law of the United States.”
Nor has the Riverside Mills Case conclusively settled all construction and interpretation of the Carmack Amendment. This is made evident by the case of Adams Express Co. v. Croninger. already quoted, and other cases. Vide St. L. S. W. Ry. v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77; Kansas
In view of all of the authorities cited, and others which might be cited, we conclude, in the apposite language of Mr. Justice Bradley, in Provident Savings Society v. Ford, 114 U. S. 642, 5 Sup. Ct. 1104, 29 L. Ed. 261, quoted by Judge Maxey in Clark v. So. Pac. Ry. (C. C.) 175 Fed. 122:
This suit “is pervaded from its origin to its close by United States law and United States authority.”
After that careful consideration which the importance of the controversy deserves, the court is clearly of the opinion that the right of removal exists and should be upheld.
“This bill is not an original one. It is auxiliary and dependent in its character, as much so as if it were a bill of review. The court, having jurisdiction in personam, had power to require the defendant to do or to refrain from doing anything beyond the limits of its territorial jurisdiction which it might have required to lie done or omitted within the limits of such territory. Having the possession and jurisdiction of the case, that jurisdiction embraced everything in the case, and every question arising which could be determined in it until it reached its termination and the jurisdiction was exhausted. While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal. The court below might, upon a cross-bill, and perhaps upon motion, have given the relief which was given by the interlocutory and- the final decree in the case before us. If it could not be given in this case, the result would have shown the existence óf a great defect in our federal jurisprudence, and have been a reproach upon the administration of justice. * * * The prohibition in' the Judiciary Act against the granting of injunctions by the courts of the United States touching proceedings in the state courts has no application here.”
This case was reaffirmed in Dietsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497. More distinctly conclusive is Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L.
“Certain principles, relating to the removal of cases, have been settled by former adjudications. They are: (1) If a case be a removable one, that is, if the suit, in its nature, be one of which the Circuit Court could rightfully take jurisdiction, then upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void. * * * (2) After the presentation of a sufficient petition and bond to the state court in a removal case, it is competent for the Circuit Court, by a proceeding ancillary in its nature— without violating section 720 of the Revised Statutes, forbidding a court of the United States from enjoining proceedings in a state court — to restrain the party against whom a cause has been legally removed from taking further steps in the state court. French, Trustee, v. Hay, 22 Wall. 238 [22 L. Ed. 854]; Dietsch v. Huidekoper, 103 U. S. 494 [26 L. Ed. 497]; Moran v. Sturges, 154 U. S. 256 [14 Sup. Ct. 1019, 38 L. Ed. 981]. See also, Sargent v. Helton, 115 U. S. 348 6 Sup. Ct. 78, 29 L. Ed. 412]; Harkrader v. Wadley, 172 U. S. 148 [19 Sup. Ct. 119, 43 L. Ed. 399]; Gates v. Bucki, 53 Fed. 961 [4 C. C. A. 116]; Texas & Pacific Ry. v. Kuteman, 54 Fed. 547 [4 C. C. A. 503]; In re Whitelaw [D. C.] 71 Fed. 733; Iron Mountain Ry. v. Memphis, 96 Fed. 114 [37 C. C. A. 410]; James v. Central Trust Co., 98 Fed. 489 [89 C. C. A. 126].”
In view of these considerations, we hold that the case was removable; that the application for restraining order, or temporary injunction was appropriate and justified, and should have been granted; and that the judgment of the District Court denying the same should be reversed. It is so ordered.