113 Wis. 623 | Wis. | 1902
TFe application was granted and tFe following opinion was filed January 25, 1902:
Application Fas Feen made to tFis court by tFe attorney general for leave to bring an action in equity in tFis court on beFalf of tFe state for tFe purpose of perpetually enjoining Albert G. Frost, as receiver of tFe WasF-burn, Bayfield & Iron River Railway Company, from ceasing to operate said railroad, and from tearing up and destroying tFe roadbed thereof. At tFe time of making such application tFe attorney general presented to tFe court his proposed complaint or information, together with-a considerable number of affidavits substantiating its averments of fact, from all of which it appears that the Washburn, Bay-field & Iron River Railway Company is a railway corporation organized under the laws of this state, and that prior to June, 1898, it constructed a freight and passenger railway about thirty-five miles in length, wholly within the limits of Bayfield county, and operated the same for some time as a common carrier; that said railway was mortgaged to secure-bonds amounting to $237,000, and that an action for the foreclosure of said mortgage was afterwards begun by the trustees named therein in the circuit court of the United States for the Western district of Wisconsin, in which action
It is said by the attorney general that so much of the decree of the federal court as directs the receiver to tear up and dispose of the rails of the railroad in question is entirely beyond the jurisdiction of the United States court; that such a judgment is, in effect, the destruction of a corporate franchise granted by the state of Wisconsin; that this railroad is a public highway, which the company itself would have no right to destroy or cease to operate without the consent of the state, and that such a highway cannot be thus destroyed in a mere foreclosure action to which the state is not a party, and, as it is argued, cannot be a party; that such corporate franchises can only be affected in a proper action brought in the name of the state upon leave granted by this court,— citing Stats. Wis. 1898, sec. 3211. On the other side it is claimed that the remedy of the state, if it has any, is by proceeding to intervene in the foreclosure action; that the United States court has full and complete jurisdiction to direct the sale of the mortgaged property as in its judgment seems best; and that, upon principles of judicial comity, no other court should interfere with that court which has first obtained jurisdiction.
After the commencement of the action the defendant filed a petition for its removal to the circuit court of the United States for the Western district of Wisconsin.
This is an original information filed in this court by the State of Wisconsin in its sovereign capacity, to enjoin the threatened destruction of one of the highways of the state, to wit, a certain railroad constructed in 1895 or 1896 by the Washburn, Bayfield & Iron River Railway Company, a railroad corporation organized under the laws of this state on August 2, 1895. By the information it is made to appear that a mortgage made by said railroad company in 1895 upon all of its property, including franchises, held by a nonresident of the state of Wisconsin, has been in process of foreclosure in the circuit court of the United States for the Western district of Wisconsin since some time in 1898, and that in said action receivers have been appointed and installed, who have taken possession of said road and operated it, the last of whom is the defendant, Albert G. Frost, and that a decree of foreclosure was rendered and entered July 5, 1901, directing the sale of all of its property for cash by the defendant, Albert 0. Frost, “receiver and special master in chan'cery of that court,” as an entirety, in one parcel, with directions as to the detail of the sale and disposition of the proceeds; said decree reserving to the court the right to make such further orders at its foot as may seem just and proper. On July 23d the court fixed as an upset or minimum price at such sale, $215,000. On October 12, 1901, the defendant, as special master, made report of entire inability to sell in accordance with the terms of the decree, notwithstanding efforts to do so, and advised the court that, in his judgment, it is impossible to sell the railroad as an entirety; that the only disposition which can be made is in parts and parcels, the rails to be taken up, and, together with all the motive power, equipment, machinery, furniture, and fixtures, sold at such time or times and in such manner and upon such terms as the court may direct. Thereafter, on the same day,
Eor the petitioner there was a brief by Charles B. Wood and Horace S. Oakley, solicitors, and G. W. Kretzinger and M. F. Gallagher, of counsel, and oral argument by Mr. Gallagher and Mr. Kretzinger. They contended, inter alia, that -since the Judiciary Act of 1875, a suit begun by a state may be removed to the proper circuit court of the United States, if it involves a question arising upon the constitution or laws •of the United States. Railroad Co. v. Mississippi, 102 U. S. 135; Ames v. Kansas, 111 U. S. 449; Stone v. South Caro lina, 117 U. S. 430; Southern P. R. Co. v. California, 118 U. S. 109; Postal T. C. Co. v. Alabama, 155 U. S. 482; Arkansas v. K. & T. C. Co. 96 Fed. Rep. 353. (Georgia v. Brailsford, 2 Dall. 415; and Wisconsin v. Duluth, 2 Dill. 406, were decided before the passage of the Judiciary Act of 1875, and are no longer authority. Ames v. Kansas, 111 U. S. 449. If one federal question is involved, i'f that is a •.single ingredient of the mass, the cause is removable. Tennessee v. Davis, 100 U. S. 257; Railroad Co. v. Mississippi, 102 U. S. 135; Osborn v. Bank of U. S. 9 Wheat. 738, 821; Mayor v. Cooper, 6 Wall. 247; Western Union T. Co. v. Na tional T. Co. 19 Fed. Rep. 561; Miller v. Wattier, 24 Fed. Rep. 49; Connor v. Scott, 4 Dill. 242; Omaha H. Ry. Co. v.
Eor the plaintiff there were briefs by the Attorney General, and A. W. McLeod, district attorney of Bayfield county, H. H. Hayden and H. B. Walmsley, of counsel, and oral argument by the Attorney General and Mr. Walmsley. They
The following opinion was filed April 1, 1902:
The primary question in this proceeding ■upon the merits — whether, when a' railroad company, under :■& franchise granted by this state so to do, constructs a rail"
The first question is whether this is a suit of a civil nature. Upon this subject the contention of the state is not very clearly defined. Much is said as to the peculiarity of the proceeding, by reason of the fact that its purpose is to vindicate neither private nor proprietary rights, but rights
Another qualification, which needs to be but briefly considered, is the necessity that the matter in dispute exceed $2,000. Contention is made that this requirement is not satisfied, upon the ground, apparently, that the state is seeking merely an .adjudication of its own sovereignty, or of its predominant right to'forbid or permit the destruction of its highway, and we are cited to several cases where it was held that, certain right to forbid or permit the destruction of its highway, and their vindication could not meet this requirement of federal jurisdiction. Among such citations are Barry v. Mercein, 5 How. 103, concerning the custody of a child; Kurtz v. Moffitt, 115 U. S. 487, habeas corpus; Potts v. Chumasero, 92 U. S. 358; and Smith v. Adams, 130 U. S. 167, controversies over the location of a county seat; South Carolina v. Seymour, 153 U. S. 353, for mandamus to compel registration of. a trade-mark. These sufficiently serve to illustrate the contention presented, and the idea pressed upon us. In
The next question which we have to consider is whether the present action is one arising under the constitution or laws of the United States. That quality, as an independent ground of jurisdiction in1 the circuit courts of the United States, was first enacted in the act of March 3, 1875 (ch. 137), and received construction in Ames v. Kansas, 111 U. S. 449, where the right both of jurisdiction and removal depended on whether the action arose under the constitution or laws of the United States; it being conceded that, the state not being a citizen of any state,' the suit could not fall within the cognizance of the federal courts, on the ground that it was a controversy between citizens of different states. That was an information in the nature of quo warranto to .annul the act of certain corporations of the state of Kansas in consolidating under a law of the United States, consolidation of such corporations being forbidden by the statute of Kansas; and it was held that, since the authority contested by the state arose under federal statutes, the proceeding fell'within the new field of' jurisdiction conferred by the act of 1875, although the last conclusion received very jjittle- discussion. The limits of this field have been the subject of definition since in a multitude of cases, but, -in ascertaining their meaning and applying it to the present situation, we must be guided mainly by the decisions of the supreme court of the United States. The duty being clearly imposed upon- this court to hear and adjudicate such a controversy as this, of
“The suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution, or a law or treaty of the United States, or sustained by a contrary construction.” Carson v. Dunham, 121 U. S. 421.
“A cause cannot be removed from a state court simply because, in the progress of the litigation, it may become necessary to give a construction to the constitution or laws of the United States.” Gold-Washing & W. Co. v. Keyes, 96 U. S. 199.
In Texas & P.R.Co.v. Cox, 145 U. S. 593, 603, it was held that in an action for injuries resulting from negligence, against a receiver appointed by a federal court, brought without leave of court, the suit was one arising under the constitution and laws of the United States, because the right to sue without leave of court was conferred by an act of congress. This doctrine, however, is substantially repudiated in Gableman v. Peoria, D. & E. R. Co. 179 U. S. 335; indicating-that the real controversy in the suit, and not the mere privi
“It is true that the receiver was an officer of the circuit court, hut the validity of his authority as such was not drawn in question, and there was no suggestion in the pleadings or during the trial . . . that any right the receiver possessed as receiver was contested. . . . The mere order of the circuit court appointing a receiver did not create a federal question, under section 709 of the Revised Statutes, and the receiver did not set up any right derived from that order which he asserted was abridged or taken away by the decision of the state court. The liability to Dixon depended on principles of general law applicable to the facts, and not in any way on the terms of the order.”
Cooke v. Avery, 147 U. S. 375, was an action for the recovery of real estate, based upon the lien of a judgment of a federal court; the federal statute providing that the judgments of federal courts should be liens upon real estate under the same circumstances and to the same extent as the laws of the state should prescribe for judgments of its courts. The suit was held to arise under the laws of the United States; 'the court saying, by EulleR, O. J.:
“If ... it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, then the case is one arising under the constitution or laws of the United States.”
“Tbe right of removal does not depend upon tbe validity, of tire claim set up under tbe constitution or laws. It is enough if tbe claim involves a real and substantial dispute or controversy in tbe suit.”
Another definition, running through several cases, is thus enunciated in Ex parte Lennon, 166 U. S. 548, 554:
“Cases arising under tbe laws of tbe United States are such as grow out of tbe legislation of congress, whether they constitute tbe right or privilege or claim or protection or defense of tbe party, in whole or in part, by whom they are asserted.”
In Osborn v. Bank of the U. S. 9 Wheat. 738, it was held that a suit to which a corporation organized under the laws of the United States was a party necessarily arose under the laws of the United States, and might, under the constitution, come within federal jurisdiction. It was there pointed out, too, that, to justify the jurisdiction of those courts, it was not essential that the entire controversy should so arise, and the jurisdiction was not to be defeated by the fact that other questions in the case might depend upon general or state law. This view was reaffirmed in the Pacific Railroad Removal Cases, 115 U. S. 1, with the statement:
“It is sufficient for the purposes of federal jurisdiction if the ease necessarily involves a question depending on such constitution, laws, or treaties.”
Also in Butler v. National Home, 144 U. S. 64, and Railroad Co. v. Cody, 166 U. S. 606. A long and varied line of decisions establishes the view that the question of the duty or power of a federal officer, or an officer of a federal court in executing the direct command of that court, is one arising under the laws of the United States. Mississippi v. Johnson, 4 Wall. 475, and Georgia v. Stanton, 6 Wall. 50,
“The proceeding in the state court involves the enforcement of a judgment of the United States circuit court, acting*650 •under the constitution and laws of the United States, and it is therefore a question arising under that constitution and those laws.”
Evans v. Dillingham, 43 Fed. Rep. 177, was almost identical with the present suit. It was brought to enjoin a federal receive* of a railroad from removing division headquarters and machine shops from one city to another, and it was held to arise mMer the constitution and laws of the United States, and to be removable.
In the light of these holdings by the federal courts, we do not feel at liberty to doubt that any controversy which necessarily raises the power or duty of an officer of the United States, or of one of its courts, to perform any acts expressly commanded, whether that power and duty is regulated by an express statute or by the judgment, decree, order, or process of a federal court, arises under the constitution and laws of the United States. Indeed, the very statement of the proposition would seem to preclude argument. If the doubt as to the duty of the officer arises upon the construction of bis authority under a statute, decree, or writ, those are all questions essentially within the province of the federal courts, and, as to decrees or writs, especially within the province of the court from which they emanate. An attempt by the state court to construe them at once presents that peril of conflict of jurisdictions and opinions which, from the nature of the two governments, must be avoided, and can be avoided only by the state court yielding the controversy to the federal court when that is in proper form demanded.
Since the amendment of the removal statute by ch. 373, 24 U. S. Stats, at Large, another restriction is placed upon the removal of suits instituted in the state courts. That statute imposed as a condition of removal that the suit be one of which the federal circuit courts are given original jurisdiction. This was a restrictive provision, and has been held to embody the requirement, long before decided with
As already stated, strenuous contention is made that the state here proceeds in a sovereign or governmental capacity, and that it cannot be drawn into the courts of another sovereignty against its 'will. The field of inquiry thus opened is a very wide one, if the states of the Union are to be viewed as wholly independent sovereignties, like nations wholly foreign to each other. They are not that, however. They are each and all parts of a general sovereignty, which, within a limited sphere of activity, and as to specified subjects, is their superior; and as to that government they are by no means absolutely independent. It cannot be doubted that the whole people of this nation could, in framing its constitution, make the state governments subject to the federal in any respect they chose, as, indeed, they might abolish state governments entirely. Hence the question is not how far an independent sovereign may be controlled, but, how far has power of control over individual states been conferred upon the national government? Over the states as litigants, judicial con- ■ trol is vested in the United States courts by very broad language, to wit, in “all cases in law or equity, arising under this constitution and the laws of the United States,” in “controversies between two or more states,” and “between a state and citizens of another state,” besides other provisions not now material. There is in this language no exception from such judicial control of any suit in which the state is acting as a sovereign, but the federal courts themselves have imported into the words some such exceptions in deference to the presumed degree of sovereignty intended to be left with the states. Thus it has been held that the words “all
Thus it is obvious tbat tbe bard and fast rule tbat tbe federal courts have no judicial power over any suit or controversy which involves sovereign action by tbe state is not correct, but tbat tbe true position is an intermediate one, to be ascertained from tbe .decisions of tbe supreme court of tbe United States, and the reasons whereon they are founded. It is hardly necessary to indulge in a résumé of all of tbe cases which have been passed on. They are gathered together and commented on exhaustively in Wisconsin v. Pelican Ins. Co., supra, and tbe very late case of Missouri v. Illinois, supra. As a result, however, of an examination of all tbe decided cases, we find tbe following limitations have been placed upon tbe broad and general language of tbe constitution by reason of the sovereign character of tbe party: First, tbat suits in enforcement of criminal or penal laws are excluded from tbe jurisdiction; secondly, tbat suits to enforce action over which tbe political branch of a government has full control are excluded, for the reason tbat such questions are not justiciable, — that their control is not within tbe judicial power. On tbis principle, compulsion of tbe governor of a state to deliver up a fugitive from justice upon tbe requisition of another state was denied. Kentucky v. Dennison, 24 How. 66. See, upon same subject, New Ha-mp-
“Whenever and in all cases, where one state may choose to make complaint against ^another, no matter whether the subject of complaint arises from the legislation of a defendant*657 state, or from acts of its officers and agents, and no matter whether the nature of the injury complained of is to affect the property rights or the sovereign powers of the complaining state, or to affect the rights of its citizens, the jurisdiction of this court would attach.”
It may still be said, as in Wisconsin v. Pelican Ins. Co. 127 U. S. 297, that the cases decided by the United States court are referred to, “not as fixing the outermost limit of that jurisdiction,” but as showing merely the instances in which the jurisdiction has been exercised, and those in which it has been refused. As already pointed out, there is no penal aspect to the rights which the state now seeks to enforce. No statute has been suggested to us making the threatened conduct of the defendant criminal, or imposing any penalty therefor, and the federal jurisdiction cannot be excluded on the same ground as in the Pelican Ins. Co. Case. The only other ground of exclusion recognized by the supreme court is that the subject of the action is not justiciable. That objection certainly cannot lie in the mouth of the plaintiff .in this case, which has no standing in court at all unless it presents a justiciable controversy. But there is nothing in this case to make its maintenance at all doubtful, under the principle of the cases above cited, in this respect. It is no attempt to control the political branches of the state government. It is an attempt to regulate and control an individual, — at best, an officer of a court, — and is within the proper power of some court. The state, having seen fit to submit the question to the courts, — nay, to invoke their aid in the performance of its governmental duty, — must yield to the provision of the constitution and laws of the United States that its suit, if arising under that constitution or those laws, shall, at the instance of the defendant, be removable" into the federal courts.
Several further obstacles to the removal of this suit are suggested by counsel for the state, which need no more than cursory notice. Thus, it is argued, as if relevant to the ques
Again, removal to the circuit court for the Western District of Wisconsin is said to be impossible, because that court would not have jurisdiction of the defendant; he not being a resident, and it being required that suits against citizens of other states shall be brought in the district of their residence. This, however, is a mere personal privilege, which the defendant may waive, and not, as counsel suggests, a question of jurisdiction. Texas & P. R. Co. v. Cox, 145 U. S. 603.
Again, it is urged that the allegation of amount in dispute is not stated in the language of the statute in the petition for removal. The language of that petition is, “The amount involved therein, exclusive of interest and costs, exceeds the sum of two thousand dollars.” The information shows-clearly the subject of dispute, and, in the light of the facts there apparent, we think this allegation sufficient to make the required quantum, of the dispute apparent. Blackburn v. Portland G. M. Co. 175 U. S. 571.
Another objection is, apparently, that the federal court has not the machinery to render the full relief obtainable in this court, and several cases where removal has been denied on that ground are cited to us. We can discover no lack of machinery at the command of the circuit court, of the United States to restrain its own receiver or master from doing acts
It is somewhat vigorously contended by the defendant that this action may be removed, independently of all other grounds, because it is ancillary to the foreclosure action now pending in the circuit court of the United States, in which this receiver has been appointed, and his duties prescribed. There is some support for this position in decisions of the inferior federal courts. Jewett v. Whitcomb, 69 Fed. Rep. 417; and Carpenter v. Northern P. R. Co. 75 Fed. Rep. 850. No such ground is specified in federal statutes, and, as we do not find that it has yet been authoritatively established by the •supreme court of the. United States, we prefer to rest our decision upon the statutory grounds already discussed.
We reach the conclusion that the present suit is of a civil nature; that it arises under the constitution and laws of the United States, and is within the original jurisdiction of the circuit court of the United States for the Western District of Wisconsin; and that neither from the character of the parties nor of the controversy arises any obstacle to avert the ■effect of the federal statute requiring removal of such suits ■at the petition of the defendant.
By the Court. — Ordered that the petition for removal be granted.