State of Indiana v. Alleghany Oil Co.

• Decision Date: 24 March 1898
• Docket Number: 9,371.
• Parties: STATE OF INDIANA, to Use of DELAWARE COUNTY, v. ALLEGHANY OIL CO. et al.
• Court: United States Circuit Court, District of Indiana

85 F. 870

STATE OF INDIANA, to Use of DELAWARE COUNTY, v. ALLEGHANY OIL CO. et al.

No. 9,371.

United States Circuit Court, D. Indiana.

March 24, 1898

On January 3, 1898, the plaintiff filed its complaint against the defendants in the circuit court of Delaware county, Ind. The material parts of the complaint are as follows: That on November 17, 1897, the defendants owned and had possession and control of a certain natural gas and oil well situated on certain land in Delaware county, Ind., which is particularly described; that the defendants were the lessees of the land on which said well is situated, and that said well was drilled and completed by said defendants on November 17 1897; that natural gas and oil were struck in said well on and prior to that date; that for more than two days after said gas and oil had been struck in said well, and said well completed, said defendants unlawfully allowed, and permitted the entire flow of natural gas from said well to escape into the open air, without being confined within said well, or proper pipes or other safe receptacle, whereby many millions of cubic feet of natural gas have been permitted and allowed to flow and escape into the open air, the amount of which is unknown to the plaintiff; that said flow of gas has continued to escape into the open air; that said defendants have never at any time confined, or attempted to confine, said flow of gas, or any part thereof, in said well or pipes, or other receptacles, as provided by law. Wherefore the plaintiff says a right of action has accrued in favor of the plaintiff, for the use of said Delaware county, in the sum of $2,000 together with costs and reasonable attorney's fees for the plaintiff therein, and that such reasonable attorney's fees are $300; and plaintiff demands judgment for the use of Delaware county, in the sum of $2,300 and costs of suit. On January 21, 1898, the defendants presented their verified petition, accompanied by a proper bond, to said state court, for the removal of said cause into this court. The petition set out two grounds of removal: (1) The diversity of citizenship of the plaintiff and defendants; (2) that the act of the legislature of the state, of March 4 1893, which gives the right of action, is in violation of the fourteenth amendment of the constitution of the United States. The state court sustained said petition, and made an order removing the cause into this court.

The statute under which this suit is brought is sections 7477, 7479, Horner's Ann. St. 1897:

'Sec. 7477. It shall be unlawful for any person, firm, or corporation having possession or control of any natural gas or oil well, whether as a contractor, owner, lessee, agent or manager, to allow or permit the flow of gas or oil from any such well to escape into the open air without being confined within such well, or proper pipes, or other safe receptacle, for a longer period than two days next after gas or oil shall have been struck in such well; and thereafter all such gas or oil shall be safely and securely confined in such well, pipes or other safe and proper receptacle.'

'Sec. 7479. Any person or corporation violating any of the provisions of this act shall be liable to a penalty of two hundred dollars for each and every such violation, and to the further penalty of two hundred dollars for each ten days during which such violation shall continue; and all such penalties shall be 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.' The plaintiff has filed a motion to remand on the ground (1) that the plaintiff is not a citizen of the state of Indiana; (2) that the suit is for the recovery of a penalty prescribed for the doing of acts made unlawful by the statute of the state.

Wm. A. Ketcham, Merrill Moores, and C. C. Shirley, for plaintiff.

Stephenson, Shirts & Fertig, for defendants.

BAKER District Judge.

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. A state is not a citizen of any state, and, under the judiciary acts of the United States, it is firmly 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 courts of the United States have 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; Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 15 Sup.Ct. 192; State v. Tolleston Club of Chicago, 53 F. 18.

This suit, if removable at all, is removable solely on the ground of the diverse citizenship of the parties. The complaint sets out a cause of action for the recovery of a penalty prescribed by the statute of the state. No right, privilege or immunity is claimed by the plaintiff under or by virtue of the constitution, laws, or treaties of the United States. It is true that the defendants in their petition for removal set up the claim that the state statute is invalid by reason of its denial of privileges and immunities secured to them by the fourteenth amendment to the constitution of the United States. It is settled, however, that where the jurisdiction of the courts of the United States, whether original or by removal, depends upon the...