State of Arkansas v. Kansas & T. Coal Co.

• Decision Date: 02 September 1899
• Citation: 96 F. 353
• Parties: STATE OF ARKANSAS v. KANSAS & T. COAL CO. et al.
• Court: U.S. District Court — Western District of Arkansas

96 F. 353

STATE OF ARKANSAS v. KANSAS & T. COAL CO. et al.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

September 2, 1899

Ben T Duval, for plaintiff.

Hill &amp Brizzolara, for defendants.

On April 23, 1899, this cause was brought by the state (at the relation of Jo Johnson, prosecuting attorney for the Twelfth judicial circuit) in the circuit court of Sebastian county for the Greenwood district, in the state of Arkansas. From the complaint it appears that both defendant companies are Missouri corporations; that the defendant coal company (hereinafter designated 'Coal Company,' for convenience), when the bill was filed, owned and was operating a coal mine at Huntington, in said Greenwood district of Sebastian county, and that the defendant railroad company (hereinafter designated 'Railroad Company,' for convenience) owned and operated a railroad in said county and Twelfth judicial circuit. Omitting, for the purposes of this motion, irrelevant matter, the bill charges 'that the defendant Coal Company is threatening and is about to import into said county (Sebastian), and town of Huntington over a line of their co-defendant's railroad, a large number of armed men of the low and lawless type of humanity to wit, about two hundred, to the great danger of the public peace, morals, and good health of said county, and more particularly of said town. ' On the 18th of July, 1899 the defendants filed a joint petition in said court, accompanied by a bond in the usual form, and prayed for an order of removal of this case to this court. The order of removal was denied by the state court, and thereupon the defendant companies procured, and afterwards, on the 25th of July, 1899, caused to be filed in this court, a transcript of all the proceedings of the state court. On August 7, 1899, the state filed in this court a motion to dismiss the case for the following reasons: (1) Because the petition for removal and transcript of the record of the circuit court of Sebastian county for the Greenwood district thereof show that it is not removable to this court, under the laws of the United States; (2) because the state of Arkansas being plaintiff, and defendants alleged to be citizens of the state of Missouri, this court could acquire no jurisdiction on the ground of diverse citizenship; (3) because the record aforesaid shows it is not a civil action for the enforcement of a right arising under the constitution and laws of the United States, or treaties made under their authority, or arose under the constitution, laws, and treaties aforesaid; (4) because, under the constitution and laws of the state of Arkansas the St. Louis & San Francisco Railroad Company, one of the defendants, is a domestic corporation, and is subject to the jurisdiction of the courts of said state.

ROGERS, District Judge (after stating the facts as above).

Counsel who filed the motion to dismiss has made no point with reference to the first paragraph of the motion, and it is not necessary to consider it, unless it be intended thereby to raise the question that it does not appear that the amount in controversy exceeds the sum of $2,000. That question is res adjudicata in this court. Humes v. City of Ft. Smith, 93 F. 857. See, also, Railroad Co. v. Ward, 2 Black, 485.

It has been held that a state is not a citizen. And under the judiciary acts of the United States it is well settled that a suit between a state and a citizen or corporation of another state is not between citizens of different states, and that the circuit court of the United States has no jurisdiction of it, unless it arises under the constitution, laws, or treaties of the United States. Ames v. Kansas, 111 U.S. 449, 4 Sup.Ct. 437; Stone v. South Carolina, 117 U.S. 430, 6 Sup.Ct. 799; Germania Ins. Co. v. Wisconsin, 119 U.S. 473, 7 Sup.Ct. 260. The second paragraph of the motion to dismiss, therefore, is well taken.

The fourth paragraph of the motion has been settled adversely to the motion in the case of Railway Co. v. James, 161 U.S. 545, 16 Sup.Ct. 621.

Nothing remains to consider except the third paragraph of the motion. It is conceded, and is settled law, that under the act of August 13, 1888, a case (not depending on the citizenship of the parties, nor otherwise specially provided for) cannot be removed from a state court into the circuit court of the United States as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement of his own claim; and, if it does not so appear, the want cannot be supplied by any statement in the petition for removal, or in the subsequent pleadings. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654; Chappell v. Waterworth, 155 U.S. 102, 15 Sup.Ct. 34; Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 15 Sup.Ct. 192; Land Co. v. Brown, 155 U.S. 488, 15 Sup.Ct. 357; Railroad Co. v. Cody, 166 U.S. 607, 17 Sup.Ct. 703; Walker v. Collins, 167 U.S. 57, 17 Sup.Ct. 738. The cases cited make it clear that in determining whether or not the present case is a suit of a civil nature arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority, must be determined by an examination of the complaint itself, and not by anything which is found either in the petition for removal or in any subsequent pleadings filed. Attention is therefore directed to an examination of adjudged cases determining when a suit is one 'arising under the constitution or laws of the United States,' etc. In Tennessee v. Union & Planters' Bank, 152 U.S. 459-462, 14 Sup.Ct. 654, 656, it was said:

'The earliest act of congress which conferred on the circuit courts of the United States general jurisdiction of suits of a civil nature, at common law or in equity, 'arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority,' was the act of March 3, 1875, c. 137 (18 Stat. 470). Under section 1 of that act, providing that those courts should have original cognizance of such suits when the matter in dispute exceeded the sum or value of $500, their jurisdiction was exercised in cases in which the plaintiff's statement of his cause of action showed that he relied on some right under the constitution or laws of the United States. Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289; Kansas Pac. R. Co. v. Atchison, T. & S.F.R. Co., 112 U.S. 414, 5 Sup.Ct. 208; New Orleans v. Houston, 119 U.S. 265, 7 Sup.Ct. 198; Bachrack v. Norton, 132 U.S. 337, 10 Sup.Ct. 106; Cooke v. Avery, 147 U.S. 375, 13 Sup.Ct. 340. And under section 2 of that act, which provided that any suit of a civil nature, at law or in equity, brought in any state court, 'and arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority,' might be removed by either party into the circuit court of the United States, it was held sufficient to justify a removal by the defendant that the record at the time of the removal showed that either party claimed a right under the constitution or laws of the United States. Railroad Co. v. Mississippi, 102 U.S. 135; Ames v. Kansas, 111 U.S. 449, 462, 4 Sup.Ct. 437; Brown v. Houston, 114 U.S. 622, 5 Sup.Ct. 1901; Society v. Ford, 114 U.S. 635, 642, 5 Sup.Ct. 1104; Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113; Tennessee v. Whitworth, 117 U.S. 129, 139, 6 Sup.Ct. 645, 649; Southern Pac. R. Co. v. California, 118 U.S. 109, 16 Sup.Ct. 993; Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677. But, as has been decided under that act, the suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution, or a law or treaty of the United States, or sustained by a contrary construction.' Carson v. Dunham, 121 U.S. 421, 427, 7 Sup.Ct. 1030, 1033. ' A cause cannot be removed from a state court simply because, in the progress of the litigation, it may become necessary to give a construction to the constitution or laws of the United States (Water Co. v. Keyes, 96 U.S. 199, 203); and the question whether a party claims a right under the constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party.' Railroad Co. v. Mills, 113 U.S. 249, 257, 5 Sup.Ct. 456, 459. Even under the act of 1875 the jurisdiction of the circuit court of the United States could not be sustained over a suit originally brought in that court, upon the ground that the suit was one arising under the constitution, laws, or treaties of the United States, unless that appeared in the plaintiff's statement of his own claim. This was distinctly adjudged, and the reasons clearly stated, in Metcalf v. Watertown, 128 U.S. 586, 589, 9 Sup.Ct. 173, 174, in which Mr. Justice Harlan, after pointing out that the cases in which it had been held sufficient that the federal question upon which the case depended was first presented by the answer of plea of the defendant, were cases of removal, in which, therefore, the requisite of jurisdiction appeared on the record at the time when the jurisdiction of the circuit court of the United States attached, said: 'Where, however, the original jurisdiction of a circuit court of the United States is invoked upon the sole ground that the determination of the suit depends upon some question of a federal nature, it must appear at the outset, from the declaration or the bill of the party suing, that the suit is of that character; in other words, it must appear, in that class of cases, that the suit was one of which the circuit court, at the time its

...