Perkins v. Boston & A. R.
90 F. 321
U.S. Circuit Court for the Dis...
1898
Check Treatment
PUTNAM, Circuit Judge.

The parties agree that this suit is based on the Public Statutes of Massachusetts (chapter 112, § 212), as amended by the act of 1888 (chapter 213). The defendant has demurred on the ground that the action is strictly a penal one, and *322claims that the case is governed by the decision of this court — Judge Carpenter presiding — in Lyman v. Railroad Co., 70 Fed. 409. Judge Carpenter’s decision applies to the provisions of the Public Statutes as unamended. There is very much in the Massachusetts legislation which tends to group it with Jhe ordinary class of statutes giving remedies in cases of death which are held remedial within the rules of Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, and of the case with the same title, [1893] App. Cas. 150, and of which class Stewart v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, is a striking example. Nevertheless, it may be in a large part from the fact that the provisions of the Public Statutes assess damages with reference to tjie degree of culpability of the defendant corporation, the supreme judicial court of Massachusetts evidently regards them “penal,” in the technical sense of the word. We ought to lean towards the decisions of that court with regard to a topic so peculiarly local, although, as held in Huntington v. Attrill, 146 U. S., at page 683, 13 Sup. Ct. 224, they may not conclude us; and there is not sufficient in the act of 1883 to give the legislation a different character. If the Massachusetts legislation is strictly penal, we cannot enforce it, whatever may be the mere form of the proceeding. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 299, 8 Sup. Ct. 1370; Huntington v. Attrill, 146 U. S., at pages 672, 673, 13 Sup. Ct. 224. Under the circumstances, we must follow the ruling of Judge Carpenter, as no plain error appears in it, and as, also, it is not inconsistent with any subsequent decision of the supreme court or of any circuit court of appeals. Demurrer sustained; declaration adjudged insufficient.