Southern Ry. Co. v. State

• Decision Date: 04 October 1905
• Docket Number: No. 20,714.,20,714.
• Citation: 165 Ind. 613,75 N.E. 272
• Parties: SOUTHERN RY. CO. v. STATE.
• Court: Indiana Supreme Court

165 Ind. 613

75 N.E. 272

SOUTHERN RY. CO.

v.STATE.^*

No. 20,714.

Supreme Court of Indiana.

Oct. 4, 1905.

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. Transferred from the Appellate Court (72 N. E. 174), under Burns' Ann. St. 1901, § 1337j. Reversed.

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

JORDAN, J.

The state of Indiana, by the prosecuting attorney of the proper judicial circuit, instituted and prosecuted this action against appellant, under sections 5186, 5187 Burns' Ann. St. 1901, on account of its failure to report the arrival of certain passenger trains as required by the provisions of the first-mentioned section. Trial by jury. Verdict and judgment, $4,500. Section 5186, supra, reads as follows: “That every corporation, company or person, operating a railroad within this state shall immediately after taking effect of this act, 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 station during hours when railroad companies do not regularly have a telegraph operator or operators on duty at any such telegraph office.” Section 5187: “That each violation of the provisions 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.” This latter section since the commencement of this action has been amended by providing therein that the total amount of recovery for all violations at any one station by any one corporation, company, or person to the time of filing the complaint shall not exceed $300. It is provided, however, that this amendatory act shall not affect any pending litigation. Acts 1903, p. 37, c. 22.

The complaint upon which the cause was tried in the lower court consists of 404 paragraphs, each of which charges a separate and distinct violation on the part of appellant company. These separate paragraphs embraced alleged violations from June 25, 1901, and each day thereafter to October 9, 1901, inclusive. Upon each paragraph the state demanded a recovery of $25 as a penalty, and a total demand of over $10,000. Appellant appeared to the action, and petitioned the court to transfer the cause to the federal court on the ground of diverse citizenship; said petition disclosing that appellant is a corporation organized and existing under and by virtue of the laws of the state of Virginia, that it is a resident and citizen of the said state and a nonresident of the state of Indiana, and that it had never been a resident or citizen of the latter state. The petition further disclosed that the amount in controversy in this action, exclusive of interest and costs, exceeded the sum of $2,000. The court denied the petition for removal, and upon this ruling appellant predicates error. A state cannot be regarded as a citizen of any state. Consequently an action between the state, in which it is the real party in interest, and a citizen or corporation of another state, cannot be removed from the state court to the federal court solely on the ground of diverse citizenship. Upshur County v. Rich, 135 U. S. 470, 10 Sup. Ct. 651, 34 L. Ed. 196;Postal Telegraph Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231;Indiana v. Alleghany Oil Co. (C. C.) 85 Fed. 870;Huntington v. Attrill, 146 U. S. 672, 13 Sup. Ct. 224, 36 L. Ed. 1123;Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482;State v. Tolleston Club (C. C.) 53 Fed. 18; 18 Ency. Pl. & Prac. 190, and authorities cited; Black's Dillon on Removal of Causes, § 81. In this latter authority 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.” In Huntington v. Attrill, supra, the court 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.”

Counsel for appellant, however, insist that the state of Indiana cannot be considered as the real party in interest, for the reason that under the provisions of the statute in question one-half of the amount recovered goes to the prosecuting attorney and the remainder is to be paid over to Dubois county, wherein the action arose, to become a part of the common school fund of that county. This contention is untenable, and is at variance with the holding in the case of Indiana v. Alleghany Oil Co., supra. An action under the statute herein mentioned is, within the meaning thereof, instituted and prosecuted by the state in the interest of the public. The state may therefore be said to be the real party in interest. The recovery of the penalty is by the state, and not by the prosecuting attorney, nor the county. The mere fact that a moiety of the money recovered is directed by the statute to be paid to this official does not change the public character of the proceeding. State ex rel. v. Halter, 149 Ind. 292, 47 N. E. 665;Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 937. It follows that there was no error in denying the petition to remove the cause to the federal court.

Appellant unsuccessfully demurred to each paragraph of the complaint, and thereupon filed its answer of general denial. All of the paragraphs are substantially alike, except as to the particular dates, trains, and the schedule time of arrival. A statement, therefore, of the material facts alleged in one, will suffice. The first paragraph, after disclosing that the defendant is a railway corporation duly organized under the laws of the state of Virginia, and that it owns and operates a railroad within the state of Indiana, from Evansville, through Dubois county, to Jasper, Ind., and to Louisville Ky., and also to St. Louis, Mo., alleges “that said defendant, keeps, maintains, and has a railway station upon its said railway route in said Dubois county, at Johnsburg post office, which it designates and calls “Ferdinand Station,” and that at said Ferdinand Station at the time hereinafter alleged said defendant maintained and kept a telegraph office in connection with its said line of railway; that said defendant owned, operated, and ran a regular passenger train on the said route from Evansville, Ind., to Jasper, Ind., passing by and through said Ferdinand Station; that said passenger train, so owned and operated by said defendant, traveling upon said route between said stations as aforesaid, was due and scheduled to arrive and stop at said Ferdinand Station at 2:35 o'clock p. m. on the 25th day of June, 1901, and that said passenger train did pass by and stop at said Ferdinand Station on said day; that said defendant then and there unlawfully failed and neglected to cause to be written upon a blackboard placed in a conspicuous place in the passenger depot of said company at said telegraph office and said station, at least 30 minutes before the scheduled time for the arrival of said passenger train, the fact whether said train was on schedule time or not, and, if late, how much late; and that at said time and hour, to wit, 30 minutes before the scheduled time for the arrival of said passenger train, the defendant regularly employed and had on duty at said Ferdinand Station a telegraph operator.” The paragraph further discloses that the defendant did not then and there have any device, indicator, etc., for use instead of a blackboard in giving information as to whether its trains were on schedule time, and the further fact that the train mentioned in the paragraph was not then and there a freight train carrying passengers, etc.

Several objections are urged by appellant's counsel against the sufficiency on demurrer of each paragraph of the complaint. Principal among these is the contention that the averments therein relative to appellant's failure to make a report do not show or mean, either “grammatically or logically,” that no report was made, but, upon the contrary, do disclose or admit that some report was...