Illinois ex rel. Attorney General McCartney v. Illinois Cent. R.

16 F. 881 | U.S. Cir. Ct. | 1883

Harlan,

Justice, after stating the facts, said:

I pass by all that was said in argument by counsel touching the property rights claimed by the respective parties. The single question for determination, and beyond which the court will not go, is whether the pleadings make a case which, under the act of congress, is removable to this court. The act of March 3, 1876, entitles either party to a case arising under the constitution and laws of the United States, to have it removed into the proper circuit court of the United States, — the application for removal being made within a prescribed time. The petition for removal was filed in due time, and it is only necessary to inquire whether the case is one arising under the constitution or laws of the United States.

An analysis of the pleadings will show (1) that the relief which the state seeks depends, in part, upon the construction,- operation, and effect of Virginia’s act of cession, and the acts of congress creating the territory and admitting the state of Illinois into the Union (2) that, apart from the case as made by the information, the rights of both parties depend, mainly, upon the inquiry whether the act of the Illinois legislature passed in 1873 — set out both in the information and the answer — is in violation of those clauses of the national constitution to which reference is made in the answer.

It seems to the court to be entirely clear that, according to the adjudications of the supreme court of the United States, this is a case arising under the constitution and laws of the United States. That it presents questions which may be determined without reference to the federal constitution or to the laws of congress, or that the federal questions upon which the decision of the cause mainly depends are raised, not by the state which instituted the suit, but by the defendant company, is not material. In Railroad, Co. v. Mississippi, 102 U. S. 140, 141, it was ruled, in conformity with previous decisions of the same court, that the judicial power of the United States extends to suits by a state against an individual in which the latter demands nothing from the former, but only seeks the protection of the constitution and laws of the United States against the claim or demand of the state; “that a case in law or equity consists of the right of one party, as well as the other, and may properly be said to arise under the constitution or a law of the-tjnited States, whenever its correct decision depends on the construction of either; ” “that 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;” and “that it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is within the power of congress to give the circuit courts jurisdiction of the cause, although other questions of fact or of law may be involved in it. ” Do the property rights of which the railroad company is alleged to be in possession arise out of or depend upon the act of 1869? Did that act alone, or as supplemented by its alleged acceptance on the part of the railroad company, constitute a contract between the state and company within the meaning of the contract clause of the federal constitution? If so, did the repealing act of 1873 impair the obligation of that contract, or does it, within the meaning of the fourteenth amendment, deprive the company of property rights without due process of law ? These questions plainly involve a construction of the federal constitution, and the determination of rights, privileges, and immunities which, it is claimed, are protected by its provisions. The rights of parties depend upon that determination. The case is, therefore, removable under the act of 1875, unless the presence of the city of Chicago as a co-defendant with the railroad company prevents such removal.

The city has appeared and filed its answer. It admits all the allegations of fact made in the information. It makes no issue with the state, nor does it dispute the right of the state to the relief asked. In effect, it concedes the claims of the state. Her answer then proceeds to set out the sections of the act of 1869 which require the railroad companies already referred to, to pay to her the sum of $800,-000. After averring that no such payment has ever been made, the city alleges that she has always insisted that the act of 1869 was repealed, but if the court should be of opinion that the state is bound by its provisions, then she claims the right to receive the money required by that act to be paid. Without determining whether the city is a proper party to the issues between the state and the railroad company, it is clear that there is in the suit a separable controversy, wholly between the state and the railroad company, which can be fffilv determined as between them without the presence of the city as a party. Barney v. Latham, 103 U. S. 205. But, were this not so, it is clear that if the city is a proper party, her attitude is such that, under the rule laid down in the Removal Cases, 100 U. S. 457, she must, although a defendant, be regarded as on the side of the state in the latter’s controversy with the railroad company. The parties being so arranged, the railroad company is the only defendant on the opposite side from the state, and the non-joind'er of the city in the petition for removal did not deprive the company of the right under the statute to remove the cause.

It was stated on the argument that the United States attorney for this district would hereafter enter the appearance of the United States. But it is not contended that the right of removal can be affected by the fact that the government is made a defendant. It may be proper to say that I am unaware of any authority in any officer of the United States to enter the appearance of the government as a defendant in this cause. But upon that point I make no decision at this time.

For the reasons stated, the court is of• the opinion that this cause is properly on its docket, and that the motion to remand must be denied. Counsel will see that the proper order is entered.

In view of the large interests to be affected by the final determination of this cause, and especially because a state is a party, I deemed it proper to confer with the circuit and district judges upon the question of jurisdiction; and I am authorized to say that they concur with me in ¿olding that the suit is removable under the statute.

See Cruikshank v. Fourth Nat. Bank, infra; Myers v. Union Pac. Ry. Co., ante, 292; State v. Chicago, B. & Q. R. Co., ante, 706; Ellis v. Norton, ante, 4