40 F. 708 | U.S. Circuit Court for the District of Northern Iowa | 1889
In the original bill filed in this cause it is averred that the complainants are residents of Lyon county, Iowa, owning property in said county, and that they, in common with all other tax-payers in said county, are interested in the question of the extent of taxation which can be legally imposed upon the taxable property in said county; that under the laws of Iowa the county has no authority to create an indebtedness in excess of 5 per centum of the assessed valuation of the property in the county; that bonds have been issued largely in excess of this limitation, and that same are illegal; that the defendants, being the treasurer, auditor, and members of the board of supervisors of said county, have levied, and are proceeding to enforce the collection of taxes in excess of the legal rate, and for the payment of the illegal bonds issued by the county; that the complainants, for themselves and on behalf of the other tax-payers of the county, seek to restrain the collection of said taxes, and to have the same declared void; and to that end they pray an injunction against said county officials. Service of the original notice was had upon the county treasurer, and at the ensuing term of the state court a default was entered against him, and a decree for an injunction as jirayed for. Subsequently an amendment to the bill was filed, making several of the bondholders defendants, and praying that the bonds held by them be declared void, and canceled.
The Orient Fire Insurance Company, a Connecticut corporation, one of the defendants to the amended bill, filed its petition for the removal of the cause into this court, and the transcript having been filed, the complainants now move for an order remanding the case, on the ground that this court has not jurisdiction. On part of the Orient Company it is claimed that there exists in-its favor a separable controversy, and, as
The question then arises whether, as to this single controversy, there are adversary parties who are citizens of the same state. If it were not for the decision oí'the supreme court in Harter v. Kernochan, 103 U. S. 562, I should bo strongly inclined to hold that the county officials ought not to bo deemed to be interested with the complainant adversely to the bondholder, yet I cannot find any substantial ground for distinguishing this case from that, upon the facts. In that case the bill was tiled by the township and two resident tax-payers against the state treasurer and auditor, the county clerk and treasurer, the township collector, supervisor, clerk, and justices of the peace, and the holders of the township bonds. The bill declared the bonds not binding upon the township, for want of authority in the issuance thereof, and prayed a decree restraining the siate, county, and township officers from collecting any tax for the payment of the bonds, for the cancellation of the bonds, and other relief. Upon the question of the removability of the cause, the supreme court hold:
“Disregarding, as we may do, the particular position, whether as complainants or defendants, assigned to the parties by the draughtsman of the bill, it is apparent that the sole matter in dispute is the liability of Harter township upon the bonds; * * ⅜ that upon one side of the dispute are all of the state, county, and township officers and tax-payers, who are made parties, while upon the other is Kernochan, the owner of the bonds whoso validity is questioned by this suit. He alone, of all the parties, is, in a legal sense, interested in the enforcement of liability upon the township. It is therefore a suit in which there is a single controversy, embracing the whole suit, between citizens of different states, one side of which is represented alone by Kerno-chan, a citizen of Massachusetts, and the otiier by citizens of Illinois. Removal Cases, 100 U. íá. 457.”
Under this decision it is clear that the citizenship of the county officials will not defeat the right of removal oil part of the insurance company , for the supreme court holds that they are doomed to be interested on the same side of the controversy with the complainant, and, as they are all citizens of Iowa, the controversy is in fact one between citizens of different states.