State of Iowa v. Chicago, B. & Q.R. Co.

• Decision Date: 22 January 1889
• Citation: 37 F. 497
• Parties: STATE OF IOWA v. CHICAGO, B. & Q.R. CO.
• Court: U.S. District Court — Southern District of Iowa

37 F. 497

STATE OF IOWA v. CHICAGO, B. & Q.R. CO.

United States Circuit Court, S.D. Iowa, Central Division.

January 22, 1889

A. J Baker, Atty. Gen., and C. E. Nourse, for plaintiff.

Dexter Herrick & Allen and J. W. Blythe, for defendant.

Before BREWER, SHIRAS, and LOVE, JJ.

BREWER J.

This is one of several actions brought in the state court against the defendant and other railroad companies, to recover penalties alleged to have been incurred under section 27 of an act of the legislature of Iowa, entitled 'An act to regulate railroad corporations,' etc., approved April 5, 1888. The defendants filed answers, and at the same time filed petitions for removal to the circuit court of the United States, on the ground that the cases were cases arising under the constitution of the United States. Transcripts of the records were filed in this court in apt time, and a motion has been made by the plaintiff to remand the cases to the state court. In support of this motion it is contended: (1) That the cases are not 'suits arising under the constitution of the United States,' within the meaning of the act of congress; (2) that they are not suits 'of a civil nature;' (3) that they are not cases of which the circuit court is 'given original jurisdiction' by section 1 of the act, and are not, therefore, removable. Noticing the second question, it is provided by section 2 of the removal act of March 3, 1887, 'that any suit of a civil nature, at law or in equity, etc., may be removed;' and it is insisted that this is not a suit of a civil nature. By the act of April 5th, supra, certain acts are declared to be extortion. Section 26 declares that 'any such railroad corporation guilty of extortion * * * shall, upon conviction thereof, be fined in any sum not less than one thousand dollars nor more than five thousand dollars, * * * such fine to be imposed in a criminal prosecution by indictment; or shall be subject to the liability prescribed in the next succeeding section, to be recovered as therein provided ' This next succeeding section provides:

'Sec 27. Any such railroad corporation guilty of extortion * * * shall forfeit and pay the state of Iowa not less than one thousand dollars nor more than five thousand dollars, * * * to be recovered in a civil action by ordinary proceedings instituted in the name of the state of Iowa.'

It will be observed that section 27 defines the action as a civil action, and in fact the one before us is in the ordinary form of an action of debt. But while the form is civil, is it of a civil or criminal nature? For obviously not the form, but the nature, of the action determines the question. The right to remove is given by act of congress, which prescribed both the limits and the conditions, and it cannot be that, after congress has thus legislated, the right of removal can be defeated by any legislation of the state changing the mere form in which litigation is to be carried on; otherwise the will of congress could be defeated by any state. Would it for a moment be tolerated that litigation as to the collection of a note could be held in the state and withheld from the federal court by any act of the state legislature providing that such collection should be indictment, instead of the usual form of a civil action? Railroad Co. v. Jones, 29 F. 193. The question, therefore, is, what is the nature of the action provided for by section 27? The distinction between matters of a civil and those of a criminal nature is clear, and of frequent mention in the books. Blackstone says, (volume 4, p. 5:)

'The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs or civil injuries are an infringement or privation of civil rights which belong to individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.'

Rapalje and Lawrence, at page 21 of their Law Dictionary, say:

'An action is 'civil' when it lies to enforce a private right, or redress a private wrong. It is 'criminal' when instituted on behalf of the sovereign or commonwealth in order to vindicate the law by the punishment of a public offense.'

Burrell, in his Law Dictionary, 294, says:

'A civil action is an action brought to recover some civil right, or to obtain redress for some wrong not being a crime or misdemeanor.'

See 3 Bl.Comm. 2, 116. He also defines a civil right as--

'The right of a citizen; the right of an individual as a citizen; a right due from one citizen to another, the privation of which is a civil injury, for which redress may be sought by a civil action. ' Burr. Law Dict. 296.

Bouvier says a civil action is--

'A personal action, which is instituted to compel payment, or the doing of something which is purely civil. ' 'At common law: An action which has for its object the recovery of private or civil rights or compensation for their infraction. ' Bouv. Law Dict. 317.

'Penal statutes or laws,' say Rapalje and Lawrence, 'are of three kinds: Poena pecunaria, poena corporalis, poena exilii. ' See, also, Hussey v. More, Cro. Jac. 415. The same authorities define 'penal statutes' to be 'those which impose penalties or punishment for offenses committed. ' Rap. & L. Law Dict. 945. And, further, 'penalty' is a sum of money payable as an equivalent or punishment for an injury. Id. Burrell defines 'Penalty' as--

'A punishment imposed by statute as the consequence of the commission of a certain specific offense; a pecuniary punishment; a sum of money imposed by statute to be paid as a punishment for the commission of a certain act. ' Burr. Law. Dict. 286.

He defines a penal action as--

'An action upon a penal statute; an action for the recovery of a penalty given by statute.'

In distinguishing between cases which are civil and those which are criminal in their nature, the supreme court of Maine, in Beals v. Thurlow, 63 Me. 9, says:

'The plaintiff does not sue to compel payment of any debt due to himself, or for the redress of any wrong done to himself, but simply to enforce a pecuniary penalty against a wrong-doer.'

That a suit may be criminal in form and yet civil in its nature, or vice versa, is fully discussed by Mr. Justice HARLAN in State v. Railroad Co., 33 F. 726-729. The action in that case was an information in the nature of quo warranto, instituted by the attorney general of Illinois, demanding of the Illinois Central Railroad by what warrant it claimed to have, use, and enjoy the powers, liberties, privileges, and franchises exercised by it in and over certain submerged portions of the lake front in the city of Chicago, and of constructing, operating, using, etc., docks, wharves, and piers in and upon said submerged lands. This action was commenced in the criminal court of Cook county, and was in form a criminal proceeding. In considering this, Mr. Justice HARLAN cites approvingly and quotes from People v. Shaw, 13 Ill. 581, and Ensminger v. People, 47 Ill. 387. People v. Shaw was an information in nature of quo warranto against certain persons for usurping the office of bridge commissioners, and the question arose upon the claim of right to a change of venue as provided for civil cases. CATON, J., speaking for the supreme court of Illinois, uses this language, as quoted by Mr. Justice HARLAN:

'In form this is a criminal proceeding, but it is only so in form. In substance it is for the protection of the private and individual rights of the relator and others in the precinct similarly situated. * * * It is the nature of the rights to be asserted and maintained to which we should look, rather than the form in which the party may be obliged to proceed to assert those rights, in giving a just interpretation to the statute.'

The learned justice further cites and quotes from Ensminger v. People, supra; People v. Holtz, 92 Ill. 428; and from Ames v. Kansas, 111 U.S. 460, 4 S.Ct. 437,-- to the effect that the information in quo warranto has long since ceased to be criminal in its nature, and concludes by saying:

'The decision in Ames v. Kansas, was distinctly to the effect that the nature of the right asserted and at issue * * * furnished the test whether a proceeding was of a civil or criminal nature.'

That a case may partake something of the nature of both is as might be expected, and naturally it is not always clear which element predominates.

Thus in a civil action for damages for a tort, punitive damages are sometimes awarded. There is therefore present the double element of a redress of a private injury and the punishment of a public wrong; but, inasmuch as the full recovery goes to the injured party, as he controls the whole proceeding, and the form of the action is civil, it may well be inferred that the civil element predominates, and the action be considered one of a civil nature. So there are qui tam actions brought to recover a penalty in which part of the recovery goes to the informer. In some of these actions the informer has suffered a private injury, which is compensated by the recovery, and sometimes his interest is only that of an informer. And there are actions in which the recovery is by direction of the legislature increased above the actual compensation, and the increase is by way of penalty. Obviously, in all these there are elements of a civil as well as a criminal nature. The case of Herriman v. Railroad Co., 57 Iowa, 187, 9 N.W. 378, and 10 N.W. 340, is a good illustration. In that case the plaintiff had been overcharged, and brought his action against the company, under the statute, for five times the overcharge. The court held that this was a...