McCallum v. United States, 4130.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 298 F. 373
• Docket Number: 4130.
• Parties: McCALLUM et al. v. UNITED STATES.
• Decision Date: 21 April 1924

298 F. 373

McCALLUM et al.
v.
UNITED STATES.

No. 4130.

United States Court of Appeals, Ninth Circuit.

April 21, 1924

Rehearing Denied May 26, 1924.

W. T. Plunkett, of San Francisco, Cal., for plaintiffs in error.

J. T. Williams, U.S. Atty., and Thomas J. Sheridan, Asst. U.S. Atty., both of San Francisco, Cal., and M. C. List, Sp. Asst. U.S. Atty., of Washington, D.C.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The United States, at the request of the Interstate Commerce Commission brought an action to recover from the defendants, the board of state harbor commissioners of the state of California, penalties alleged to have been incurred by them for violations of the federal Safety Appliance Act of March 2, 1893, 27 Stat. 531 (Comp. St. Secs. 8605-8612), and the amendments thereto, committed in the operation of the State Belt Railroad, a railroad traversing the San Francisco harbor front and belonging to the state. The defendants answered, denying the jurisdiction, in that the suit was in fact brought against the state of California and a political and governmental agency of the state. The answer also denied that the board was a common carrier, or engaged in interstate commerce by railroad, [298 F. 374] and upon information and belief it denied the alleged violations of the Safety Appliance Act. Upon the trial a verdict was rendered for the plaintiff and judgment was thereon rendered for the plaintiff in the sum of $200.

We think that the court below properly held that the action was not an action against the state and that the court's jurisdiction thereof was not forbidden by the Eleventh Amendment to the Constitution. It is conceded that the board is an agency of the state, and that as such it conducts the business of the state on the water front and manages the State Belt Railroad. But this is not a case in which the members of the board were acting within the power and duty vested in them by law, or in pursuance of authorization from the state. It is an action in tort to recover penalties for wrongful acts committed in violation of a law of the United States, not by the state, but by individuals acting as its servants. The state could not and did not authorize the commission of such wrongful acts, and immunity of the state from suit does not relieve state officers from responsibility for their unlawful action. In Hopkins v. Clemson College, 221 U.S. 636, 31 Sup.Ct. 654, 55 L.Ed. 890, 35 L.R.A. (N.S.) 243, the court declared immunity from suit to be 'a high attribute of sovereignty-- a prerogative of the state itself-- which cannot be availed of by public agents when sued for their own torts. ' The principle is illustrated in numerous decisions, among which are Poindexter v. Greenhow, 114 U.S. 270, 5 Sup.Ct. 903, 962, 29 L.Ed. 185; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 Sup.Ct. 1047, 38 L.Ed. 1014; Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Johnson v. Lankford, 245 U.S. 541, 38 Sup.Ct. 203, 62 L.Ed. 460; Looney v. Crane Co., 245 U.S. 178, 38 Sup.Ct. 85, 62 L.Ed. 230.

The trial court, over the defendants' exception, granted the plaintiff's motion for a directed verdict in its favor. That ruling is assigned as error, and it is contended that the Belt Railroad was not engaged in interstate commerce, since it served all carrier routes alike and charged therefor only a switching rate for hauling loaded and empty freight cars or rolling stock belonging to such carrier roads, and its service to the railroads commenced and ended with the receipt from or delivery to the carrier road, of the cars to be hauled, and the movement in interstate commerce also began and ended with the...