City of Stanfield v. Umatilla River Water Users' Ass'n

192 F. 596 | U.S. Circuit Court for the District of Oregon | 1911

BEAN, District Judge.

In May, 1911, the plaintiff commenced a suit in a state court to enjoin and restrain the defendants from using and operating an irrigation canal or ditch around and above the city •of Stanfield until it is so constructed or repaired as to prevent the water from percolating through the bottom or sides thereof and flowing down and upon the land upon which the city is located, to the injury and destruction of the streets and property of the city and the health of its inhabitants. The canal referred to is a feed canal furnishing water .for the Umatilla irrigation project, now being constructed, operated, and controlled by the government under the reclamation act. The defendant Newell is the engineer in charge of the woríj under the direction of the Secretary of the Interior, and the defendant the Umatilla River Water Users’ Association has no part in the operation or control of the property. None of these facts, however, appear from the bill as filed.

[1] A petition for the removal of the suit to this court under the provisions of section 643, R. S. (U. S. Comp. St. 1901, p. 521), on the ground that it is being prosecuted against an officer appointed and acting under the revenue law of the United States, was filed, and an ex parte order was made as prayed for. The plaintiff now moves to remand the suit for the reason that the reclamation act is not a revenue law within the meaning of the section referred to.

This question has been recently considered and decided by Judge Deitrich in the District of Idaho. Twin Falls Canal Co., Ltd., v. Foote, 192 Fed. 583. His conclusions are that the reclamation act is not a revenue law within the meaning of section 643, and that suit commenced in the state court against an officer of the reclamation service cannot be removed to a federal court under the provisions of that section. I had examined the question and reached a similar conclusion before being advised of Judge Deitrich’s decision. 1 can, however, add nothing to his able and exhaustive opinion.

[2] It is suggested that, regardless of the method of removal, the court should retain jurisdiction because the suit is against an officer of the United States claiming to act under a law of Congress. But this is not sufficient to give this court jurisdiction, under the judiciary act of 1887, either as an original action or by removal from a state court. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Chappell v. Waterworth, 155 U. S. 102. 15 Sup. Ct. 34, 39 L. Ed. 85; Walker v. Collins, 167 U. S. 57, 17 Sup. Ct. 738. 42 L. Ed. 76; People's U. S. Bank v. Goodwin (C. C.) 160 Fed. 727. Although it would seem to have been enough under previous legislation. Feibelman v. Packard, 109 U. S. 421, 3 Sup. Ct. 289, 27 L. Ed. 984; Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. 106, 33 L. Ed. 377.

Motion to remand will be allowed.