Johnson v. Wells, Fargo & Co.

• Decision Date: 09 January 1899
• Docket Number: 12,705.
• Citation: 91 F. 1
• Parties: JOHNSON v. WELLS, FARGO & CO.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F. 1

JOHNSON v. WELLS, FARGO & CO.

No. 12,705.

United States Circuit Court, N.D. California.

January, 9, 1899

McGowan & Squires, for plaintiff.

E. S Pillsbury, for defendant.

MORROW Circuit Judge.

This is an action to recover damages in the sum of $50 for the alleged neglect of the defendant, as a common carrier, to receive and transport a certain package of photographs offered and tendered by plaintiff for conveyance and transportation. The action was originally commenced in the justice's court of the city and county of San Francisco and was transferred to this court on the petition of the defendant alleging that it is a corporation organized and existing under the laws of the former territory and present state of Colorado; that the cause is of a civil nature at law, arising under a law of the United States providing internal revenue, to wit, under the act of congress approved June 13, 1898, and entitled 'An act to provide ways and means to meet war expenditures and for other purposes'; purposes'; that the matter in dispute in this suit, 'as appears from the said answer of your petitioner to the said complaint, is whether the said act of congress entitled 'An act to provide ways and means to meet war expenditures and for other purposes,' approved June 13, 1898, imposes upon your petitioner and requires it, or the plaintiff, or other shipper or consignor or his agent, or any other person tendering any goods to your petitioner for carriage or transportation, to furnish or to pay for the stamp in said act provided, of one cent, to be attached and canceled to every bill of lading manifest, or other memorandum which it is the duty of your petitioner, under the provisions of this act, to issue to the plaintiff, or other shipper or consignor, or his agent, or to any other person from whom any goods are accepted by your petitioner for transportation; that the plaintiff contends that such tax is by said law imposed upon your petitioner, and that by law it is made the duty of your petitioner to furnish or to pay for said stamps to be affixed and canceled to said bills of lading, manifests, or other memoranda, and to pay for said tax, and that your petitioner may not lawfully insist that the plaintiff and other shippers or consignors of goods over its lines shall furnish or pay for the stamps to be affixed and canceled to such bills of lading, manifests, or other memoranda; that your petitioner contends that such tax is not by law imposed upon it, and that it may lawfully insist that the plaintiff, and other shippers or consignors, or other persons desiring to make shipments over its lines, shall furnish or pay for such stamps, to be affixed and canceled to such bills of lading, manifests, or other memoranda, before your petitioner can lawfully be required to accept such shipments for carriage and transportation.' The complaint charges that 'the defendant is now, and was at all times herein mentioned, a common carrier of freight, goods, and merchandise, and engaged in the business of carrying freight, goods, and merchandise, as such common carrier, within the state of California, and to and from different parts thereof, and particularly to and from the city and county of San Francisco and the city of Oakland in said state, and was at all times herein mentioned offering to carry the class of freight hereinafter mentioned and described; that on or about the 12th day of September, 1898, the said plaintiff, being desirous of having defendant carry a certain package of photographs from said city and county of San Francisco to said city of Oakland, at said time, during the business hours of said defendant, at and in its office in said city and county of San Francisco, then and there offered and tendered to defendant said package of photographs, to be by said defendant, as such common carrier, conveyed and transported from said city and county of San Francisco to said city of Oakland, for which the charge of said defendant for said package was twenty-five cents; that at said time and place the said plaintiff offered and tendered to said defendant the said sum of twenty-five cents as freightage on said package; that said defendant at said time and place refused, and ever since said time has refused, to accept or receive said package, or to convey or transport the same, or to permit its conveying or transporting upon or over any of its lines or conveyances, and said defendant now refuses to receive, accept, transport, or convey the said package of photographs so as aforesaid offered and tendered by plaintiff for conveyance and transportation; that by reason of said defendant's refusal to receive, transport, or convey said package of photographs as aforesaid, plaintiff was compelled to send the same by other conveyance, was greatly inconvenienced, incurred additional cost and expense, all to his great damage, in the sum of fifty dollars.'

It will be observed that it does not appear from the plaintiff's statement of his cause of action that it is one arising under the constitution, laws, or statutes of the United States, and that more than $2,000,exclusive of interest and costs, is involved. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654; Chappell v Waterworth, 155 U.S. 102, 15 Sup.Ct. 34; Walker v. Collins, 167 U.S. 57, 17 Sup.Ct. 738. Nor does it appear from the petition for removal that the suit is between...