Great Northern Ry. Co. v. Blaine County, Neb.

• Decision Date: 02 September 1918
• Docket Number: 5061.
• Citation: 252 F. 548
• Parties: GREAT NORTHERN RY. CO. v. BLAINE COUNTY, NEB., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F. 548

GREAT NORTHERN RY. CO. v. BLAINE COUNTY, NEB., et al.

No. 5061.

United States Court of Appeals, Eighth Circuit.

September 2, 1918

Sanford H. E. Freund, of St. Paul, Minn. (E. C. Lindley, of St. Paul Minn., on the brief), for appellant.

Willis E. Reed, Atty. Gen. (George W. Ayres, Sp. Asst. Atty. Gen on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

SANBORN Circuit Judge.

Great Northern Railway Company, a corporation, brought a suit in equity against Blaine county, Neb., and its county treasurer as such officer and as an individual, against 13 other counties in that state, and their respective county treasurers as such officers and as individuals, and against each of the members of the state board of equalization and assessment of the state of Nebraska, to enjoin them from collecting certain taxes for the year 1914 levied against the complainant in the 14 counties, aggregating $16.40. The complainant alleged, as grounds of jurisdiction of the court below, diversity of citizenship and the threatened violation of the Fourteenth Amendment and other parts of the Constitution of the United States, by the proposed collection by the defendants of these taxes which it averred were illegal and void. Regarding the amount involved in the suit it alleged the amount of the taxes levied against it in each county, from which it appears that the largest amount levied in any county was $2.97; that the defendants have proceeded to make like illegal and unconstitutional levies for the year 1915, and that they will continue to make and collect such levies unless enjoined; that these levies have been made against it, although it does and has done no business in that state, has no property, and has operated no cars in that state, because, pursuant to a contract it has with the Pullman Company, it temporarily loaned to that company during the year 1914, and that company operated across the state of Nebraska, 10 of its sleeping cars in through interstate trains on the Chicago, Burlington & Quincy Railroad, 4 for a single round trip, 1 for 3 round trips and 5 for 12 round trips; that the complainant's failure to perform its contract with the Pullman Company would injure it in excess of $5,000; that the defendants threaten to seize one or more of its cars in order to collect these taxes, thereby rendering it impossible for the Railroad Company to furnish cars pursuant to its contract with the Pullman Company; that each of its sleeping cars is worth $10,000; that any seizure of one of them to collect these taxes would be an interference with and a deprivation of its right under the Constitution and laws of the United States to loan its cars to the Pullman Company for temporary passage across the state of Nebraska in continuous trips in interstate commerce; and that the value of that right to loan its cars in the way provided in its contract is in excess of $10,000. The complainant alleged carefully and in detail the statutes of Nebraska and the proceedings of the officers of that state under which these taxes were levied, and the facts showing that the complainant was without any adequate remedy at law; but in the view this court is compelled to take of this case it is unnecessary to recite these averments.

The defendants moved to dismiss this suit upon the ground that the complaint did not state facts sufficient to constitute a cause of action in favor of the complainant and against the defendants, or any of them, and upon consideration of this motion the court below rendered a final decree, the material part of which is in these words:

'The court finds that the suit does not really involve a controversy within the jurisdiction of this court, and the suit is therefore dismissed for lack of jurisdiction, at plaintiff's costs.'

The complainant appealed and assigned as error: (1) That the court erred in dismissing the suit; (2) that it erred in dismissing the suit for lack of jurisdiction; (3) that it erred in ruling that the amount in dispute in the suit was less than $3,000; and (4) that it erred in ruling that the amount in dispute in the suit was not sufficient to give the court jurisdiction.

From the facts which have now been stated it clearly appears that this is a case which was dismissed by a final decree of the District Court for want of power of that court as a federal court to take jurisdiction of its subject-matter, without considering or deciding any other question, so that the only issue of law presented by the record for review is this question of the jurisdiction of the court below. When the case was argued in this court the question whether or not this court had jurisdiction to review the decision of the court below of this question of that court's jurisdiction at once suggested itself and was called to the attention of counsel for the plaintiff, and they have cited, in support of the jurisdiction of this court, Mississippi Railroad Commission v. Illinois Central R.R. Co., 203 U.S. 335, 342, 27 Sup.Ct. 90, 51 L.Ed. 209, American Sugar Refining Co. v. New Orleans, 181 U.S. 277, 21 Sup.Ct. 646, 45 L.Ed. 859, Baltimore & Ohio R.R. Co. v. Meyers, 62 F. 367, 371, 10 C.C.A. 485, Rust v. United Waterworks Co., 70 F. 129, 132, 17 C.C.A. 16, and The Presto, 93 F. 522, 35 C.C.A. 394. The opinions in these cases have been read and carefully considered, but they have failed to convince that the case in hand is within the jurisdiction of this court. This rule is so firmly established by repeated and controlling decisions of the federal courts that in our opinion it is not now open to discussion or debate.

In every case in which a party is defeated by a final judgment order, or decree of a United States District Court, on the sole ground that that court has no jurisdiction as a federal court of the parties or of the subject-matter, and the record discloses the fact that the jurisdiction of that court was decided, and no other question was decided, so that the only question the record presents for review is the jurisdiction of the United States District Court, the Supreme Court has exclusive jurisdiction, and the Court of Appeals has no jurisdiction to review that judgment or decree. The case in hand falls under this rule. Davis & Rankin Bldg. & Mfg. Co. v. Barber, 60 F. 465, 9 C.C.A. 79; Cabot v. McMaster, 65 F. 533, 13 C.C.A. 39; United States v. Jahn, 155 U.S. 109, 114, 15 Sup.Ct. 39, 39 L.Ed. 87; Davis v. Cleveland, C., C. & St. L. Ry. Co., 156 F. 775, 777, 84 C.C.A. 453, 455; Davis v. C., C., C. & St. L. Ry. Co., 217 U.S. 157, 169, 171, 172, 30...