In re Turner

• Decision Date: 01 December 1902
• Docket Number: 2,404.
• Citation: 119 F. 231
• Parties: In re TURNER. v. TURNER et al. SHERIFF Circuit Court, S.D. Iowa, C.D.
• Court: U.S. District Court — Southern District of Iowa

119 F. 231

In re TURNER.

SHERIFF v. TURNER et al.

Circuit Court, S.D. Iowa, C.D.

No. 2,404.

United States District Court, S.D. Iowa, Central Division.

December 1, 1902

J. H Henderson and Howard Clark, for complainant.

Lewis Miles, U.S. Atty., and G. B. Stewart, Asst. U.S. Atty., for respondents.

Lewis Miles, U.S. Atty., and G. B. Stewart, Asst. U.S. Atty., for the writ.

J. H Henderson and Howard Clark, opposed.

Two actions heard together. The first was a suit in equity removed from a state court, and heard on a motion to remand and a motion by defendant to dissolve an injunction. The second was a proceeding by habeas corpus in the district court by the defendant in the first suit for his discharge from arrest and detention on an order of the state court for violation of injunction.

McPHERSON District Judge.

Both of the above-entitled causes were heard by me at the same time and, the cases being so closely related, can be stated by me and decided in the one opinion.

The first case is a bill in equity filed in the district court of Warren county, Iowa, to restrain the defendants from laying a sewer pipe from the United States army post to what is called North river. The complainant is the owner of a tract of land a short distance below where the sewer will enter the river. North river is alleged to be a small, sluggish stream, not navigable, not meandered, sometimes no running water, at all other times with but little or no current, but at all times holding sufficient water for his cattle to drink. In April, 1900, congress passed a statute for the erection of a military post at Des Moines. Under this statute the site selected is about five miles south of Des Moines, and the sewer in question extends from the site to North river, a distance of about two miles. It is alleged that defendant Turner is in charge of the works, and that he and the defendant Herrick are constructing the works, including the sewer. It is also alleged that the discharge of the sewage will so pollute the waters and the bed of North river as to make plaintiff's lands unfit for pasture, because of the necessity for complainant's cattle to go to North river for drinking water, there being no other water for cattle on his land. The act of congress provides, first, that the site of the post shall be approved by the secretary of war. It next provides that the army post shall be of such character and capacity as the secretary of war shall direct and approve.

The defendant Turner has surveyed the same, and with the aid of defendant Herrick is constructing the sewer. It is alleged that, by making the sewer, thereby the channel of the stream will be polluted, and his land made unfit for pasture, and by reason thereof his lands will be depreciated in value; and it is contended that this is taking of private property for public use without making compensation therefor.

The state court issued an injunction, enjoining the defendants from constructing any part of the sewer in Warren county, and from having the mouth thereof at North river. The defendants, and particularly defendant Turner, disregarded the writ and refused to obey it. Thereupon he was arrested by the sheriff to answer as for contempt. Before the contempt proceedings were heard the United States attorney appeared and filed a petition to remove the case to this court on the ground of a 'federal question' being involved. The removal was granted, and the record filed in this court. The complainant has filed a motion to remand, and the United States attorney moves to vacate the injunction. Shortly before the contempt proceedings were to be heard I ordered the writ of habeas corpus to issue, directing the sheriff to show by what authority he detained the said Turner. The sheriff pleads that he held him by virtue of the proceedings and orders in the contempt case.

In addition to the foregoing, it also appears that the defendant Turner is an officer in the United States army with the rank of major, and that as Major Turner, under the directions and orders of the war department, he was, in the line of military duty, erecting said post, and as part thereof was constructing said sewer.

Some minor and some technical questions have been waived, and the substantial inquiries which, by both the circuit and district courts of the United States, must now be decided are, has a state court the jurisdiction in a proceeding brought for the sole purpose of enjoining an officer of the United States army from doing a work which he is commended to perform by his superior officer in the execution of an act of congress? And can such officer be enjoined by a state court, even though he is committing a wrong upon complainant's property, provided such act is for and on behalf of the government?

If the court had jurisdiction, then the power to issue the writ existed, and whether it was issued upon a sufficient or insufficient showing by the landowner is not a question for this court. But the question, and the only question, for this court is, did the state court have jurisdiction to proceed further, when it became known that Mr. Turner was Major Turner, and that Major Turner was doing the things complained of as an army officer, in obedience to a command by the secretary of war, pursuant to an act of congress? If there is doubt about the matter, neither of these courts should hold that the state court was without power or jurisdiction. But having no doubt whatever that the state court was wholly without jurisdiction, it is my duty to so order.

And, the state court being without jurisdiction, its writ of injunction was void, and the disobedience thereof was not a contempt, and his arrest and detention was without authority. And I deem it my duty to present, although briefly, my reasons for so holding.

And first, as to the habeas corpus case in the district court. This writ cannot be used as a writ of error or appeal to review the action of another court. But it can and should be issued and made effective when another court has acted without jurisdiction to act. Even then, at times and in cases like this, it is discretionary. It would be proper to allow the case to take its course through the Iowa courts, the supreme court of the state included, and then, if the party arrested is adjudged against, to present the case by writ of error to the supreme court of the United States. But the arrest, under authority of a state, of a federal officer, and that officer one of the federal army in the performance of a c command by a superior officer which he dare not disobey, presents a matter of urgency, and it is within the discretion of the federal courts to at once take cognizance of the case, and act at once, rather than...