Ferguson v. Ross

38 F. 161 | U.S. Circuit Court for the District of Eastern New York | 1889

Lacombe, J.,

(after stating the fads as above.") The fact that removal into this court was had upon the application of the defendant is immaterial, if the controversy is one of which the circuit court has no jurisdiction. Lazensky v. Knights of Honor, 32 Fed. Rep. 417. There is no pretense that the matter in dispute arises under the constitution or laws of the United States. It is only as “a controversy between citizens of different states” that the plaintiff insists that this court has power to dispose of it, and on that theory he seeks to sustain the removal. There is no statute which authorizes the removal of a suit between a state and citizens of another state on the ground of citizenship, for a state cannot, in the nature of things, be a citizen of any state. State of Alabama v. Wolffe, 18 Fed. Rep. 836; Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799. The nominal plaintiff here is an individual, but he sues only in his official character. The suit is brought to enforce a police regulation of the state. He has no personal interest in its subject-matter, — not even for his fees or commission, for he is a salaried officer, whose compensation is secured irrespective of the result of the suits he may bring. In the event of his removal from office the suit would be continued by his successor, not by himself. Courts will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit, and will determine whether a state is the real party to an action brought by or against its officer by a consideration of the nature of the case as presented by the whole record. Governor of Georgia v. Madrazo, 1 Pet. 110; In re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 164; New York v. Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. Rep. 608; Louisiana v. Jamel, 107 U. S. 711, 2 Sup. Ct. Rep. 128; Browne v. Strode, 5 Cranch. 303; State of Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. Rep. 278; McNutt v. Bland, 2 How. 15. The real party prosecuting these suits is the state of New York, and they are therefore not removable under the act of 1887. Moreover, the cases provided for by the statute conferring jurisdiction upon the circuit courts are suits “of a civil nature, at law or in equity.” The cases at bar are brought to enforce penalties imposed by state law to be paid to the state treasury, and are of a penal, not a civil, nature. As such they cannot be sustained in the courts of the United States. Gwin v. Barton, 6 How. 7; State of New Hampshire v. Railway, 3 Fed. Rep. 887. They areundistinguishable in principle from Wisconsin v. Insurance Co., 127 U. S. 265, 8 Sup. Ct. Rep. 1370. By the laws of the state of Wisconsin, the officers of fire insurance companies doing business in the state were required to file certain reports, and to forfeit 8500 for failure so to do. It was made the duty of the commissioner of insurance to prosecute actions to recover such penalty in the name of the state, — one-half of the recovery going to the state treasury, the remainder to the insurance commissioner, who bore the expenses of the suit. He was also given power to compromise actions. The supreme court held (supra) that the law was penal, and that a suit to enforce could not be maintained in the federal courts. • In the language of Mr. Justice Gray, delivering the opinion:

•‘Therule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties. * * * The statute of Wisconsin under which the state recovered in one of her own courts the judgment now and here sued on was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another state doing business in the state of Wisconsin without having deposited with the proper officer of the state a full statement of its property and business during the previous year. The cause of action was not any private injury, but solely the offense committed against the state by violating her law. The prosecution was in the name of the state, and the whole penalty, when recovered, would accrue to the state, and be paid, one-half into her treasury, and the other half to her insurance commissioner, who pays all expenses of prosecuting for and collecting such forfeitures. The real nature of the case is not affected by the law of the state for the punishment of the offense. It is immaterial whether by the law of Wisconsin the prosecution must be by indictment or by action, or whether under that law a judgment might be enforced by execution, by scire facias, or by a new suit. In whatever form the state pursues her right to punish the offense against her sovereignty, every step of the proceeding tends to one end, — the compelling the offender to pay a pecuniary fine by way of punishment for the offense. ”

The motion to dismiss both actions must therefore be granted, but, as defendant moved them into this court, without costs.