Southern Ry. Co. v. State

• Decision Date: 28 October 1904
• Docket Number: No. 4,982.,4,982.
• Citation: 72 N.E. 174
• Parties: SOUTHERN RY. CO. v. STATE.
• Court: Indiana Appellate Court

72 N.E. 174

SOUTHERN RY. CO.

v.STATE.¹

No. 4,982.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1904.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by the state against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. P. Humphrey, John D. Welman, M. W. Fields, and Bretz & McFall, for appellant. Leo H. Fisher, Pros. Atty., Cox & Hunter, A. L. Gray, and H. M. Kean, for the State.

WILEY, J.

This was a prosecution by the state to recover penalties for violations of section 5186, Burns' Ann. St. 1901, in failing to post the arrival of trains. The amended complaint is in 404 paragraphs. Appellant appeared to the complaint, and moved, upon petition and bond, to remove the cause to the federal court. The ground stated in the petition for removal was the nonresidence of appellant. This motion was overruled, and the question saved by special bill of exceptions. A demurrer was addressed to each paragraph of amended complaint and overruled, and exceptions reserved. Answer in denial, trial by jury, verdict and judgment for $4,500. Appellant's motion for a new trial was also overruled. All rulings above indicated, adverse to appellant, are assigned as errors.

The first question discussed by counsel for appellant is the overruling of its motion to remove. The ground upon which a removal was asked was diverse citizenship, the petition showing that appellant is a corporation organized and existing under the laws of Virginia. In Black's Dillon on Removal of Causes, § 81, it is said: “Since, in the nature of things, a state cannot be a citizen of a state, the federal courts have no jurisdiction, on removal from a state court on the ground of diverse citizenship, of a suit between a private individual and a state, whether the former be a citizen of the same or of a different state. Such a controversy cannot, in any just sense, be said to be ‘between citizens of different states.”’ The case of State of Indiana, for the use of Delaware County, v. Alleghany Oil Co. et al. (C. C.) 85 Fed. 870, was an action to recover a penalty for a violation of the statute making it unlawful to permit the flow of gas or oil from a well into the open air. That statute made it unlawful to permit such escape, and fixed a penalty for its violation, which penalty was recoverable “in a civil action or actions in the name of the state of Indiana, for the use of the county in which such well shall be located, together with reasonable attorney's fees and costs of suit.” Sections 7477, 7479, Horner's Ann. St. 1897. It was held in that case that, when a state brings a suit in a court of its own creation against a citizen of another state, no removal can be had into a circuit court of the United States on the ground of the diverse citizenship of the parties. In Huntington v. Attrill, 146 U. S. 572, 13 Sup. Ct. 229, 38 L. Ed. 1123, it was said: “Beyond doubt, except in cases removed from a state court in obedience to an express act of Congress in order to protect rights under the Constitution of the United States, a Circuit Court of the United States cannot entertain jurisdiction of a suit in behalf of the state, or of the people thereof, to recover a penalty imposed by way of punishment for a violation of a statute of the state.” The following cases are also in point: Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482;Postal Tel. Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231;State v. Tolleston Club of Chicago (C. C.) 53 Fed. 18. Appellant's learned counsel concede that these authorities are against their contention, but seek to avoid their force by asserting the counter proposition that they are not in point and of controlling influence, because the state is not the real party in interest. They maintain that, while the action is prosecuted in the name of the state, the beneficiaries are the prosecuting attorney and Dubois county, for the statute provides that one-half of the amount recovered shall go to each of them, and hence they are the parties in interest. We do not think this position is tenable, and the question is put at rest by the decision in the case of State of Indiana, etc., v. Alleghany Oil Co., supra. The language of the statute under which that case was prosecuted, and the one involved in this case, is essentially the same. In that case the statute directs that the penalties “shall be recoverable in a civil action or actions in the name of the state *** for the use of the county,” etc. In this case the statute provides for the penalty, and directs that it shall “be recovered in a civil action to be prosecuted by the prosecuting attorney *** in the name of the state of Indiana, one-half of which shall go to said prosecuting attorney, and the remainder shall be paid over to the county *** and shall be part of the common school fund.” In both cases the Legislature directs what shall be done with the amount recovered, and we have no doubt of its power to do so. Within the meaning of the statute, the state was and is the real party in interest. The motion to remove was properly overruled.

Counsel for appellant have made a vigorous attack upon the amended complaint. As above stated, the complaint is in 404 paragraphs, and they are exactly alike, except as to dates, trains, and time. A statement of the material averments of one will therefore serve for all. It is averred that appellant is a railway corporation, and owns and operates a railroad running through Dubois county; that it keeps and maintains a railway station in said county, designated as Ferdinand Station, and kept a telegraph office in connection with its said line of railway; that it owned, operated, and ran a regular passenger train on its said line of road from Jasper, Ind., to Evansville, passing through said Ferdinand Station; that said train was due and scheduled to stop at said station at 12:02 o'clock p. m. on the 26th day of June, 1901, and that it did pass by and stopped thereat on said day; that appellant then and there unlawfully failed and neglected to cause to be written upon a blackboard placed in a conspicuous place in the passenger depot at said station, at least thirty minutes before said schedule time for the arrival of said train, the fact whether it was on schedule time or not, and, if late, how much late; that at that time appellant regularly employed and had on duty at said station a telegraph operator; that it did not then and there have any device, indicator, or register, painted or printed in letters or figures, giving information as to whether said train was on schedule time, and, if late, how much late; that said train was not then and there a freight train carrying both freight and passengers; and that at said time and hour appellant then and there had a regular telegraph operator on duty. As an action of this character is only maintainable by virtue of the statute authorizing it, a complaint to enforce the penalty for a violation of its provisions should be measuredby the statute itself. It becomes important, therefore, to look to the statute. Section 5186, Burns' Ann. St. 1901, being section 1 of the act of 1889 (Acts 1889, p. 279, c. 139), as amended by Acts 1897, p. 176, c. 117, makes it the duty of railroad corporations, etc., to “cause to be placed in a conspicuous place in each passenger depot of such company located at any station in this state, at which there is a telegraph office, a blackboard at least three feet long and two feet wide, upon which such corporation, company or person, shall cause to be written, at least thirty minutes before the schedule time for the arrival of each passenger train stopping upon such route at such station, the fact whether such train is on schedule time or not, and if late, how much: Provided, however, that any device, indicator or register, painted or printed in large letters and figures giving the required information set forth in this act in a more legible form than is practicable on a blackboard, may be substituted in place of said blackboard: and, provided further, that the provisions of this act shall not apply to any freight train carrying passengers or any train carrying both freight and passengers, or to any stations during hours when railroad companies do not regularly have a telegraph operator or operators on duty at any such telegraph office.” Section 5187 fixed a penalty for “each violation of the provision of this act, in failing to report or in making a false report, such corporation, company or person so neglecting or refusing to comply with the provisions of this act, shall forfeit and pay the sum of twenty-five dollars, to be recovered in a civil action to be prosecuted by the prosecuting attorney of the county in which the neglect or refusal occurs, in the name of the state of Indiana, one-half of which shall go to said prosecuting attorney, and the remainder shall be paid over to the county in which such proceedings are had, and shall be part of the common school fund.” The allegations of each paragraph of complaint are in harmony with both the language and spirit of the statute. The duty of appellant is specifically set forth, and the manner in which it violated that duty is declared.

Counsel have urged several objections to the complaint, which we will consider in their order of discussion:

Our attention is directed to section 2 of the act (Acts 1889, p. 279, c. 139; Burns' Ann. St. 1901, § 5187), which declares a penalty for failing to do certain things. The penalty recoverable is for failing to report, or in making a false report of, the arrival of trains. The state relies upon the fact, charged in each paragraph of the complaint, that appellant, through its agent, “failed and neglected to cause to be written upon a blackboard placed in a conspicuous place in the passenger depot *** at said telegraph office and station, at least thirty minutes before the said schedule...