Ferguson v. Ross
| Decision Date | 20 March 1889 |
| Citation | 38 F. 161 |
| Parties | FERGUSON, Shore Inspector, v. ROSS et al., (two cases.) |
| Court | U.S. District Court — Eastern District of New York |
This is an action brought by the plaintiff, Cornelius Ferguson, in his official capacity as shore inspector, under the laws of the state of New York, to recover penalties from the defendants, P. S. Ross and Joseph B. Sandford, for depositing prohibited materials in the waters of the bay and harbor of New York. Plaintiff is a citizen and resident of New York (Eastern district;) defendants are citizens and residents of New Jersey. The actions were begun in the state supreme court, and removed here by the defendants, under the act of March 3, 1887. Upon the trial, defendants moved for a dismissal on the ground that the court had no jurisdiction of the subject-matter of the actions. The motion was denied with leave to renew after verdict, when the questions raised could receive more careful consideration. Verdicts were found for the plaintiff in both cases, and upon motions for a new trial the question of jurisdiction is again presented. The act of which it is claimed the defendants were guilty in each particular case was the dumping of dredging material in the bay and harbor of New York. The statute under which these actions were prosecuted is chapter 604 of the Laws of 1875 of the state of New York, as amended by chapter 414 of the Laws of 1885. This act makes it unlawful to deposit such materials within certain specified limits, including the bay and harbor of New York; and provides that any person offending against the provisions of the act shall be guilty of a misdemeanor and shall, upon conviction, be punished by imprisonment as in case of misdemeanors, or both, in the discretion of the court. Out of the moneys received from fines under the act such sum or sums shall be allowed and paid for the expenses and disbursements attending the arrest as the court or magistrate may deem reasonable and proper. The act next provides for the appointment of a 'shore inspector' of the counties named, to hold office for three years, and to serve until his successor shall be appointed. He is given an annual salary of $2,000, (in lieu of all other compensation,) which, with the salaries of his subordinates, is made a county charge. It is made his duty to investigate and report any and every violation of the provisions of the act, and he is given power to arrest offenders. To carry out the objects of the act the sum of $15,000 is appropriated for expenses. It is made a county tax, and, when raised, is paid over to the state comptroller. By the eighth section of the act (the particular one under which these actions were prosecuted) it is made unlawful to permit any dredgings and materials taken from any slip, basin, or shoal in the port of New York to be deposited or placed elsewhere than beyond certain prescribed limits. For each and every violation of the provisions of this act all persons so offending are made jointly and severally liable to pay a penalty of $1,000, together with costs, for each and every such offense. Such penalty is to be recovered by and in the name of the said inspector, in a civil action, in any court of competent jurisdiction in the state. The inspector is given power in his discretion, with the consent of the court, to remit all or any part of the penalties thus incurred; and it is further provided that all moneys recovered by civil action, after deducting costs, counsel fees, etc., shall be paid into the treasury of the state. The penalties, and the mode of recovering the same, shall, it is further provided, be deemed to be substituted for all others therefore provided by law for the same or like offense. The object of the act, as declared in the title, is to protect the shores and bay of New York, and the seaside resorts near the same.
Joseph G. Jackson, for defendants.
James S. Church, for plaintiff.
LACOMBE J., (after stating the facts as above.)
The fact that removal into this court was had upon the application of the defendant is immaterial, if the controversy is one of which the circuit court has no jurisdiction. Lazensky v. Knights of Honor, 32 F 417. There is no pretense that the matter in dispute arises under the constitution or laws of the United States. It is only as 'a controversy between citizens of different states' that the plaintiff insists that this court has power to dispose of it, and on that theory he seeks to sustain the removal. There is no statute which authorizes the removal of a suit between a state and citizens of another state on the ground of citizenship, for a state cannot, in the nature of things, be a citizen of any state. State of Alabama v. Wolffe, 18 F. 836; Stone v. South Carolina, 117 U.S. 430, 6...
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...Trunk Ry., 3 Fed. 887; Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 Sup.Ct. 1370; Iowa v. Chicago, B. & Q.R. Co., 37 F. 497; Ferguson v. Ross, 38 F. 161; Texas v. Land & Cattle Co., 41 F. 228; Ogden v. Folliot, 3 Term R. 726; Scoville v. Canfield, 14 Johns. 338; Gwin v. Breedlove, 2 How. ......
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