42 F. 241 | U.S. Circuit Court for the District of Kentucky | 1890
The commonwealth of Kentucky brought this suit in the Jefferson court of common pleas; and it has been removed here, on the petition of the defendants, upon the alleged ground that the controversy is one arising under the constitution and laws of the United States. The plaintiff moves to remand the caso to the state court, and insists that it does not raise any question under the constitution or laws of the United States; and it is also insisted that the bonds executed in the state court are not sufficient, and the execution of a proper bond is jurisdictional.
The suit is a statutory one. under the Code of Practice of this state, which authorizes such a proceeding in lieu of a writ of quo warranto, or an information in the nature of a quo warranto, and is for the purpose of having the defendants excluded from the uge of the franchise to operate a double-track steam railroad in and over Fourteenth street, in this city, from Main street to 'Maple street, and to recover damages for the wrongful use of said franchise heretofore. The plaintiff alleges in the petition that defendants, in co-operation with each other, have usurped the use of Fourteenth street from Main street to Maple street, a distance of about one mile, and have used the same, by operating a double-track railroad, with steam, for many years, and are still operating said road over and through said street, for the transportation of passengers and freight, and are now, and have been for more than 10 years, charging tolls and"com-pensatiou therefor illegally, and that they are exercising said franchise without warrant or right from the plaintiff, and without any lawful authority whatsoever. The petition for removal alleges that-there is a fed
• After the plaintiff entered this motion to remand the case to the state court, the defendants tendered an answer to the original petition of the plaintiff, and asks that it be filed and considered as part of the record on this motion. As the removal petition alleges distinctly that this suit raises a federal question, under the constitution and laws of the United States, I think it proper that the answer, whicKsets out more in detail the nature of the defense, should be considered and read on this motion.
The bonds which were executed by the defendants, and accepted by the state court, are each in the penalty of $500, and are in conformity with the provisions of the statute in every respect, unless a penalty is improper. It is claimed that the third section of the act of March 3, 1875, as amended by the act of March 3, 1887, provides for a bond unlimited in extent, and one not to be limited by a fixed penalty, and therefore these bonds are fatally defective, and, as the execution of a proper bond is jurisdictional, this case should be remanded for that reason. Whether' the execution of a valid and proper bond under this act, and the act of March 3, 1875, is jurisdictional, has been much discussed; and the circuit courts have differed in opinion. See Burdick v. Hale, 7 Biss. 96; Torrey v. Locomotive Works, 14 Blatchf. 269; Deford v. Mehaffy, 13 Fed. Rep. 481; Harris v. Railroad Co., 18 Fed. Rep. 833. But that question does not arise in this case, as I think the bonds which were executed by defendants, and accepted by the state court, are valid bonds to the extent of the penalty, and the penalties are sufficient to cover the cost likely to accrue in this case. It may be that a bond without a penalty would be good under the statute; but the act does not prohibit a bond with a penalty, although it does prescribe the obligations under which the obligor must come. I therefore think the state court properly accepted these bonds with a penalty, as the obligations conformed to the provisions of the act. Both Field and Bump give forms of removal bonds with a penalty. See Field, Fed. Courts, 767; Bump, Fed. Proc. 909.
The facts which appear from the record, and that are material to the determination of the present motion, are these, viz.: The Louisville Bridge Company was incorporated by the commonwealth of Kentucky, and authorized to build a bridge across the Ohio river from some convenient point in the city of Louisville to a point opposite in the state of Indiana, and was authorized to acquire by purchase and condemnation the necessary land to build said bridge, and the necessary avenues thereto, and land for the purpose of any necessary building, etc. The company organized and built the present bridge under the charter granted by the commonwealth of Kentucky, and have accepted the provisions .of the acts of congress approved July 14, 18.62, and February 17, 1865, and built the bridge, in accordance with the provisions of said
The fifth section of the act of 1862 is the only part material to the present inquiry, and that enacts—
“That any bridge or bridges erected under the provisions of this act shall be lawful structures, and shall be recognized, and known as post-routes, upon which, also, no higher charge shall be made for the transmission over same of the mails, the troops, and munitions of war of the United States than the rate per mile which the company or companies erecting such bridge may from time to time receive on the balance of their lino or lines for such services.” 12 St. at Large, 570.
The act of I860 did not authorize the Louisville Bridge Company to construct this bridge, but the authority to construct was given to the two railroad companies. This is not material, since the act did not grant either corporate franchises or property rights on either shore of the Ohio river. It may be assumed that, if the bridge was constructed according to the requirements of the act, whether by the two railroad companies
“That any telegraph company now organized, or which may hereafter be organized, under the laws of any state in this Union, shall have the right to construct, maintain, and operate lines of telegraph through an'd over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been, or may hereafter be, declared such by act of congress, and over, under, or across the navigable streams or waters of the United Slates.” 14 St. at Large, 221.
The supreme court, after declaring this was a constitutional exercise of power by congress under the commercial clause of the constitution, and after declaring an act of the Florida legislature, which gave an exclusive right to one of its own telegraph companies in two counties of the slate, void and of no effect, uses this pertinent language, after quoting the language of the act: , „
“There is nothing to indicate an intention of limiting the effect of the words employed; and they are, therefore, to be given their natural and ordinary signiiioation. Read in this way, the grant evidently extends to the public domain, the military and post roads, and the navigable waters, of the United States. These are ail within the dominion of the national government to the extent of the national powers, and are therefore subject to legitimate congressional regulation. Sfo question arises as to the authority of congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt lias been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the constitution is not interfered with. Only national privileges are granted.” Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 12.
In same case in 2 Woods, 646, Judge Woods says:
“It is not supposed, nor is it claimed by defendant, that the act of congress gives a telegraph company the right to occupy the right of way owned by railroad companies without compensation. ”
When this caso arose, all railroads in the United States had been declared to have been post-roads by congress. I will not attempt to define or consider the extent of the power of congress under the eommerical clause of the constitution, and that to establish post-roads. It is sufficient, and decisive of this branch of the case, if the fact be that congress has not given, or attempted to give, to the defendants, or either of them,
It is, however, contended that the commonwealth of Kentucky is seeking by this proceeding to abrogate a contract made with the Louisville Bridge Company', and it is thereby violating the federal constitution. Art. 1, § 10. This section prohibits a. state from passing any law impairing the obligation of contracts. The supreme court say in a recent case-that— -
“In order to come within the provision of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the state. The prohibition is aimed at the legislative power of the state, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.” New Orleans Water-Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 30, 8 Sup. Ct. Rep. 741.
Here there has been .no legislative action, and the• uttermost that can be claimed is that the plaintiff is,, seeking thnough her courts to have the defendants deprived of a franchise which they claim to be theirs under a contract with plaintiff.
I have not overlooked the case of Railroad Co. v. Mississippi, 102 U. S. 135, which settles the right of' defendants to a removal to this court,, if this suit presented a real controversy or dispute as to the construction and effect of an act of congress and this notwithstanding the plaintiff is a state of this Union. In that case the real controversy was as to the obstruction of a navigable river (Pearl river) by a railroad bridge over it. The plaintiff relied upon an act of congress passed March 1, 1817, which declared “that the Mississippi river, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of said state as to other citizens of the United States.” The defendant-also relied in its-answer upon another act of congress, (March, 1868,) which, it claimed, authorized the construction of the bridge complained of by plaintiff as-obstructing the free navigation of Pearl river.. The suit necessarily involved the construction of the laws of the United States; and, indeed, the rights of defendant depended upon the act of congress. Besides, the-subject-matter of the controversy was national, i. e., the navigation of Pearl river, and its alleged obstruction. Here the subject-matter of the-controversy is a franchise in and over a street in the city of Louisville, which does not depend upon any right given by congress, but upon the-state laws.