99 F. 598 | 7th Cir. | 1900
Lead Opinion
Tbe superior court of Cook county, 111., in which the proceeding was begun, issued an order of injunction commanding the appellee, the Congress Construction Company, to
The underlying question, aside from that of the jurisdiction of the court below over the subject-matter, is whether the United States and the construction qompany, which was acting by the employment and under the áuthority of the treasury department, were bound by a decree of the superior court of Cook county entered on September 14,1896, in a suit wherein A. Montgomery Ward and George R. Thorne were the complainants, and the city of Chicago, North Chicago Railway Company, Chicago & West Division Railway Company, West Chicago Street-Railway Company, Baltimore & Ohio Railroad Company, Illinois Central Eailroad Company, Charles T. Yerkes, De Witt C. Creiger, mayor, William A. Purdy, and Lawrence McGann were the defendants. That decree forbade the erection upon grounds described, including those now in question, of any and all buildings or structures, except those required of the Illinois Central Railroad Company by an ordinance of the city passed on October 21, 1895; but, by express proviso, nothing in the decree was to be construed to prohibit or restrain “the use, occupation, repair, or necessary enlargement” of the Art Institute, at the foot of Adams street; “and, provided, further, that the building now used as a temporary post office by the United States government shall remain where the same is now located, opposite the foot of Washington street, and it, together with all necessary repairs of the same, shall be permitted to remain and to be used as the temporary post office until a permanent post office shall be completed and occupied on the cite bounded by Clark, Adams, Dearborn, and Jackson streets, in said city.” The suit in which that decree was rendered was commenced in 1880, and while it was pending, in 1895, the federal authorities obtained of the city and the owners of the property fronting upon the park whatever right was granted for the erection of the temporary post office at its present site. The contention of the appellant is that, though the United States was not, and could not have been, made a party to the suit, it was let into possession by the city of Chicago, which was a party defendant, and, by the law of privity and lis pendens, is bound by the decree subsequently rendered, and is entitled to occupy and maintain in proper repair “the building now used,” but not, as in the case of the Art Institute it was expressly provided, to make an addition or enlargement. To this contention the response’ of the appellee is— First, that the United States did not acquire and does not hold possession under the city of Chicago, but under the appellants
The first proposition, modified to conform to the facts, presents a more interesting and important question. The actual possession of Lake Park was held by the city of Chicago, but under conditions and restrictions which forbade the presence there of all buildings or structures which would interfere with the view from adjacent properties. The owners of those properties, it is settled, had such an interest as enabled them to maintain suits to enjoin the construction or compel the removal of forbidden structures; and in recognition of that fact the United States, after the giving of the consent of the. city, refused to. proceed with the erection of the temporary post office until the consent of the interested property owners was obtained. That consent was given in writing by all but Ward, who represented the appellants, and by him through his attorney, and thereafter, with his knowledge, and without objection from him, the building was erected, but, on account of the lack of a larger appropriation, upon a smaller scale than originally planned; and the addition now proposed, it is conceded,’if erected, would not extend beyond the limits of the original plan, as shown by the drawings in existence when the consent to the erection of the building was given. There is, however, no direct evidence that Ward or others in like interest saw or knew of the drawings or plans, though they could hardly have been ignorant that such plana were customary. It is fairly inferable that they and he had little concern on the subject, and anticipated the erection of such structure as was then supposed or thereafter should be found to be necessary. In respect to the alleged estoppel by the decree of the state court, it is, therefore, not the ordinary case of a third party acquiring from one of the parties to a pending suit an interest in or possession of the disputed land. The possession in this instance was taken with the consent of both parties to the litigation, — the city, representing the fee, and the appellant Ward, representing the easement, if it may be so called, for the supposed vindication of which he instituted this proceeding. 3sio precedent has been cited, but we are of opinion that when both parties to a suit consent to the putting of a third person into possession for a specified purpose*
There remains the question of jurisdiction. Was the case removable from the state courj; to the federal court? The proceeding seems to have been begun by a notice entitled In the case already mentioned, of A. Montgomery Ward et al. v. City of Chicago et al., signed by the solicitor of the complainants and addressed to Gustave Ehrhardt, president, Fred A. Britton, secretary, and G. K. Williams, superintendent, of the Congress Construction Company, whereby they were notified that on September 16, 1899, at an hour and place stated, in the room occupied as a court room by Judge Brentano, the solicitor would ask a rule against them, and each of them, to show cause why they should not be attached for contempt: of court for violation of the decree and injunction in that cause, and that at the same time he (the solicitor) would ask that they, and each of them, be ordered to desist and refrain from digging any trench, erecting any building, or placing any obstruction whatever on Lake Park, according to the decree of said court, and upon the said motion would read the affidavit of George Gascoigne, a copy of which was served with the notice. Thereafter, on the day named, without appearance for or representation of the construction company or the United States, the court entered the injunction, which, after the transfer, the court below dissolved. Upon the docketing of the case in the court below, and after entry of tin; motions to remand and to dissolve the injunction, the parties joined in a stipulation containing the provision “that upon the hearing of these motions the issues involved in said petition shall be limited strictly to the restraining order of September 16, 1899, and that the decision of said issues growing out of said order of September 16, 3899, shall in no wise affect said original decree,” etc. It was therefore simply a case of injunction obtained upon a motion which
Touching this question a number of decisions have been cited, or have come under observation. In Chapman v. Barger, 4 Dill. 557, Fed. Cas. No. 2,603, after a judgment in favor of the plaintiff in ejectment, the defendant, as permitted by the statute of Iowa, filed a petition for betterments, and thereupon the plaintiff presented a petition for the removal of the cause. The ruling of the court (Judge Dillon presiding) was that the motion of the defendant was “essentially a part of, and ancillary to, the main suit.” “The main suit,” it was added, “is at an end, and a judgment has been rendered therein in the state court. That judgment must remain in the state court.' It cannot be brought here. The petition of the occupying claimant (whose rights are wholly statutory') is a dependence on the main suit, and cannot be separately removed.”
In Webber v. Humphreys, 5 Dill. 223, Fed. Cas. No. 17,326, a motion, under the Missouri statute, for execution against a stockholder after return of execution against a corporation nulla bona, was held not to be a “suit at law or in equity,” within the meaning of the statute providing for the removal of causes, and therefore not removable. Reference is made in the opinion to the preceding case, and to West v. Aurora City, 6 Wall. 139, 18 L. Ed. 819, and the court says:
“This is not an independent suit. It is a mere sequence, dependency, or supplemental proceeding, based on the statute, as a means of enforcing the judgment of the state court. * * * As well might it be attempted to remove proceedings .under an execution upon a judgment in a state court.”
In Salem & L. R. Co. v. Boston & L. R. Co., Fed. Cas. No. 12,249, decided in 1857, Judge Curtis held that a petition for a writ of certiorari to remove a cause must state facts to enable the court to determine whether thé case is within the provisions of the act under which removal is sought.
In West v. Aurora City, 6 Wall. 139, 18 L. Ed. 819, the plaintiffs in the original action, upon the filing of a counterclaim by the de
“A suit removable from a state court must be a suit regularly commenced by a citizen of tlie state in -which the suit is brought, by process served upon a, defendant who is a citizen of another state, and who, if he does not elect to remove, is bound to submit to the jurisdiction of the state court.”
In Bank v. Turnbull, 16 Wall. 190, 21 L. Ed. 296, execution on a judgment in a state court, to which Turnbull & Co. were not parties, had been levied upon goods which Turnbull & Co. claimed to he theirs; and, the state court having on their motion ordered an issue in which they should be deemed to be the plaintiffs to determine the title, they obtained of the United States circuit court an order for the removal of the cause. The supreme court (Justice Strong dissenting) held that, conceding it to be a suit, the proceeding was merely auxiliary to the original action, and not removable.
In Barrow v. Hunton, 99 U. S. 80, 25 L. Ed. 407, it was held that an action of nullity in Louisiana, wherein it was sought to nullify a judgment for reasons of form, was auxiliary to the principal action, and not removable. In the opinion is found this important expression :
“Tlie charader of the cases themselves is always open to examination for the purpose of determining whether, ratione materia;, the courts of the United States are competent, to take jurisdiction thereof. State rules on the subject cannot deprive them of It.”
In Bondurant v. Watson, 103 U. S. 281, 26 L. Ed. 447, a suit by A. to enjoin the levying of an execution on a judgment in favor of B. against C. upon A.’s land was declared removable; and Bank v. Turnbull, 16 Wall. 190, 21 L. Ed. 296, was declared not in point, the court saying:
“That was a statutory proceeding to try in a summary way the title to personal property seized on execution. It was nothing more than a method prescribed by the law to enable the court to direct and control its own process, and, as decided by this court, was merely auxiliary to, and a graft upon, the original action.”
The definition of a suit quoted from the opinion in West v. Aurora City was good enough for the purposes of that case, but a better one wtis given by Chief Justice Marshall in Weston v. City Council of Charleston, 2 Pet. 464, 7 L. Ed. 486, where he said:
“The term is certainly a very comprehensive one, and is said to apply to any proceeding in a court of justice by which an individual pursues that remedy in the court of justice which the law affords him. The modes of proceeding may be various, but, if the right is litigated between the parties in a court of justice, the proceeding by which the decision is sought is a suit.”
This definition is approved in Holmes v. Jennison, 14 Pet. 540, 10 L. Ed. 579; Case of Sewing-Mach. Cos., 18 Wall. 553, 585, 21 L. Ed. 914; Kohl v. U. S., 91 U. S. 367, 375, 23 L. Ed. 449; New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135, 26 L. Ed. 96; Upshur Co. v. Rich, 135 U. S. 467, 474, 10 Sup. Ct. 651, 34 L. Ed. 196, and cases
While the proceeding now in, question evidently was intended to be auxiliary to the decree of the state court, and was so in form, yet in fact, ratione materias, it was not of that character. It was brought against a corporation or its officers, who were not parties to that decree, nor bound thereby by reason of privity to the defendants or any of them; and the order of injunction entered can be regarded only as an attempt to bind a new party which was not affected by the original order. Whether, under the state practice, it was regalar and permissible, after final decree against the original defendants, to bring in a new party by motion, as was done in this instance, and obtain against it a preliminary injunction, as if it had been named a defendant in the bill, as already suggested, need; not be considered, and the party so brought in was not bound to inquire. The company might have waived service, and on being brought into the case as it was, and finding the court asserting jurisdiction over it, it had the same right to ask a removal as it would have had if it had been named originally in the bill, and brought in by process duly served before the decree against the other parties. As against it, there had been no decree, and the motion for an injunction was a new proceeding.
The right of removal is rested by counsel upon section 643 of the Revised Statutes, which provides as follows:
“When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting toy authority of any revenue law of- the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the circuit court,” etc.
The record shows a contract made by the secretary of the treasury with the Congress Construction Company for the building of the proposed addition to the post office in pursuance of the acts of July 1, 1898, and March 3, 1899 (30 Stat. 597, 1074), by which appropriations were made for the construction thereof. The provision in section 643 for the removal of causes has been liberally construed, as, for manifest reasons, it should be. In Warner v. Fowler, 4 Blatchf. 311, 29 Fed. Cas. 255, where the action was against a post
Concurrence Opinion
(concurring). The application to enjoin the work of enlarging the temporary post-office building rests on no substantial ground, and the order thereupon of the court below is clearly sustainable if a case was presented for its removal from the superior court of Cook county. Unquestionably the jurisdiction of the United States court to that end must be conferred by statute, but “the right and duty of ihe national government to have its constitution and'laws interpreted and applied by its own judicial tribunals,” and to thus protect its officers and agents lawfully engaged in the execution of its enactments, is well established. Mayor v. Cooper, 6 Wall. 217, 253, 18 L. Ed. 851; Tennessee v. Davis, 100 U. S. 257, 265, 25 L. Ed. 618. Such removal from a state court is not in the nature of appellate jurisdiction, but a mode of acquiring original jurisdiction of a cause within federal cognizance. Railway Co. v. Whitton’s Adm’r, 13 Wall. 270, 287, 20 L. Ed. 571. The operations against which the injunctional order of the state court was directed were- conducted under the authority of the secretary of the treasury, in purported execution of the acts of congress providing for an addition to the post-office building. It is true that no invasion of private rights of occupancy was thereby authorized, and that none could be authorized except through legal condemnation, but such rights were clearly determinable in the federal courts, if the statute so provided; and I concur in the opinion that section 613 of the Revised Statutes is applicable to the case at bar, and that removal was proper. The tests are (1) that the secretary of the treasury, by whom the work was ordered, was an officer ad
It is therefore ordered that the decree below be affirmed.