106 F. 545 | U.S. Circuit Court for the District of Indiana | 1901
This was a proceeding begun by the city of Terre Haute, Ind., before the city commissioners of that city, under a statute of this state, to appropriate a right of way for a street over and across the tracks and yard of the Evansville & Terre Haute Railroad Company located in that city. The Farmers’ Loan & Trust Company was the trustee under a trust deed covering the entire railroad property of the Evansville & Terre Haute Railroad Company to secure bonds in the amount of about $6,000,000 outstanding in the hands of bona fide holders. 'Such proceedings were had before the city commissioners and the common council as that Ohio street, in said city, was ordered to be extended across the tracks and yard of the railroad, and the sum of $20,000 was awarded by the commissioners as the damages which would be occasioned to the defendants by the extension of said street across said tracks and yard. Thereafter, in pur
The various steps by which real estate may be appropriated for tie opening of a public highway or street are prescribed in section 3629 et seq., 2 Burns’ Rev. St. 1894. The first step requires the common council to refer the question of the expediency of the appropriation to the city commissioners, who are-required to examine the matter, and to determine upon the expediency of appropriating the land, and, if the commissioners determine that such appropriation is expedient, they shall report their decision to the common council; and if the common council, by a two-thirds vote, approve of it, the determination becomes conclusive of the propriety of appropriating the land, and from that determination of the city commissioners and common council no appeal will lie. After the city commissioners and common council have determined to appropriate the land for a highway or street, it is then made the duty of the common council to refer the matter back to the city commissioners for the purpose of ascertaining who will be affected injuriously or beneficially by the appropriation
“Section 3(543: “If any person, having an inlerest in the lands affected by such proceedings, shall deem himself aggrieved thereby, he ma,y appeal to any court of general jurisdiction in the county, within thirty days after the confirmation of said report by the council. In such case, the person as&ng the appeal must designate the court to which he appeals, and lile a bond within thirty days from the confirmation of said report, conditioned for the payment of all damages and costs which may accrue by reason of such appeal should he not prosecute such appeal to effect. Upon such appeal, the regularity of the proceedings of the commissioners, and the questions as to the amount of benefits or damages assessed may be tried; but such appeal shall not prevent such city from proceeding with the proposed appropriation, nor from making the proposed change or Improvement. * ⅜ * After filing the said transcript (and of which filing the appellant shall notify the attorney of the city, in writing), the appellant shall, in writing, state Specifically the grounds of his objection to the proceedings of the common council and commissioners; and no-other questions shall be tried or heard, except such as are with certainty to a common intent presented by the aforesaid written statement filed by such appellant. * * * The transcript o-f the proceedings of the common council and commissioners shall be considered as the complaint; and the written statement, to be filed by thes appellant as aforesaid, shall be in the nature of an answer or demurrer. Issues of law and of fact may be formed, tried and determined as in other actions at law.”
This review of the statute discloses that the determination of the city commissioners and the common council conclusively settle all questions touching the propriety of the appropriation of the land for a street or highway. That question is open to no further litigation. It is not the subject-matter of appeal to, nor is it open to review by, any court of general jurisdiction in the state. The contention of counsel for the city that the appeal taken to the state court constitutes a mere condemnation proceeding is unfounded. -The right of eminent domain is an attribute of the sovereign power" of the state, to be exercised by the legislature of the state, or by some other tribunal invested with legislative power over that subject. Whether this sovereign power shall be exercised in a particular case is purely a legislative question. It does not fall within the domain of the judicial department of the state to determine upon the propriety of exercising the right of eminent domain in any particular case. Hence the legislature rightfully committed this question to the exclusive determination of the city commissioners and common council of the city
But, in order to give a circuit court of the United States jurisdiction, it is not enough to show that the subject-matter is of a nature cognizable by it, but 'other facts must be shown to exist before original jurisdiction of an appropriate subject-matter may be entertained. The matter in dispute must exceed the sum or value of $2,000, exclusive of interest and costs. In the present case the amount or value is sufficient to give this court jurisdiction. Also, in the present case, diversity of citizenship must be shown to exist between the parties plaintiff and defendant. All the parties plaintiff must be citizens of a different state from that of which each of the defendants is a citi-zeii, in order to give a circuit court of the United States original jurisdiction. In this case the plaintiff and the defendant the Evansville & Terre Haute Railroad Company are each citizens of the state of Indiana, and the IJarmers’ Loan & Trust Company is a citizen of the state of New York. Hence this court could not have taken original cognizance of the case for want of the requisite diversity of citizenship between the plaintiff and the defendants. It is contended, however, that a court of the United States may, on removal for prejudice or local influence, take cognizance of a suit of which, for want of the requisite diversity of citizenship, it could not have taken and entertained original jurisdiction. It is not apparent why the circuit courts of the United States should be given jurisdiction on removal for such cause in cases where original jurisdiction has been denied.The first section of the judiciary act of 1887-88 in actions like the present expressly requires that the amount in dispute shall exceed $2,000, exclusive of interest and costs, and that there shall be a controversy between citizens of different states. The second section limits the right of removal on account of prejudice and local influence to suits of which the circuit courts are given original jurisdiction by the
In Tennessee v. Union & Planters' Bank, 152 U. S. 454, 461, 462, 14 Sup. Ct. 654, 656, 38 L. Ed. 511, 514, it is held that the rule of construction theretofore applied to section 1 of the act of 1875 applies more comprehensively to the acts of 1887-88. The court there say:
“In section 1, as thereby amended, tlie words giving1 original cognizance to the circuit courts of the United States in this class of cases are the same as in the act of 1875, except that the jurisdictional amount is fixed at two thousand dollars; and it is, therefore, essential to tlieir jurisdiction that tlie plaintiff’s declaration or bill should show that he asserts a right under tlie constitution or laws of the United Scatos. But the corresponding clause in section 2 allows removals from a state court to be made only by defendants, and of suits ‘of which the circuit courts of the United States are given original jurisdiction by the preceding section,’ thus limiting the jurisdiction of a circuit court of the United States on removal by the defendant, under this section, to such suits as might have been brought in that court by the plaintiff under the first section.”
In Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672, it is iield that under section 2 of the act of March 3, 1887, as amended by tlie act of August 13, 3888 (25 Stat. 488), the jurisdiction of a circuit court of the United States on removal by the defendant of an action in the state court is limited to such suits as might have been brought in that court under the first section. It is further held that the question of jurisdiction cannot he waived. The court say, at page 208, 157 U. S., page 565, 15 Sup. Ct., and page 675, 39 L. Ed.:
“We must held, therefore, as has, indeed, already been ruled (Tennessee v. Union & Planters’ Bank, 152 U. S. 154, 461, 14 Sup. Ct. 654, 38 L. Ed. 511), that the jurisdiction of the circuit courts on removal by the defendant under (lxis section | section 2j is limited to such suits as might have been brought in that court by the plaintiff under the first section.”