Storm Lake Tub & Tank Factory v. Minneapolis & St. L.R. Co.

• Decision Date: 24 December 1913
• Docket Number: 29.
• Citation: 209 F. 895
• Parties: STORM LAKE TUB & TANK FACTORY v. MINNEAPOLIS & ST. L.R. CO.
• Court: U.S. District Court — Northern District of Iowa

209 F. 895

STORM LAKE TUB & TANK FACTORY v. MINNEAPOLIS & ST. L.R. CO.

No. 29.

United States District Court, N.D. Iowa, Central Division.

December 24, 1913

Bailie & Edson, of Storm Lake, Iowa, for plaintiff.

Price &amp Joyce, of Ft. Dodge, Iowa, for defendant.

REED District Judge.

The plaintiff filed its petition against the defendant railroad company in the district court of Iowa, in and for Buena Vista county, July 28, 1913, in two counts, which are in effect the same, alleging in substance: That plaintiff is an Iowa corporation engaged in manufacturing butter tubs and tanks at Storm Lake, Iowa; that defendant is a railroad corporation engaged as a common carrier of persons and property in the states of Iowa and Minnesota that about March 1, 1913, the plaintiff delivered to the defendant at Storm Lake, and loaded into one of its cars at that place, 2,000 butter tubs, consigned to R. E. Cobb, of St. Paul, Minn., to be carried by the defendant to St. Paul and there delivered to said consignee; that defendant undertook to so carry said tubs to St. Paul, but in doing so they were damaged, by its neglect in transporting them, to such an extent that they were of no value, and plaintiff has suffered damages because thereof in the sum of $400. There is a further claim by plaintiff in each count for $7.20 as an overcharge on freight by the defendant. The plaintiff asks judgment against the defendant for $407.20, with interest and costs.

In due time the defendant filed in the state court its petition and bond to remove the cause to this court, in which petition it is alleged:

'That this suit is one of a civil nature at common law of which the District Courts of the United States have sole and exclusive jurisdiction; that it is an action brought by the plaintiff, which is a corporation organized under the laws of the state of Iowa, with its principal place of business at Storm Lake, in said state, against the defendant, which is a common carrier, incorporated under the laws of the state of Minnesota, from Storm Lake, in the state of Iowa, to the city of St. Paul, in the state of Minnesota, and that the said shipment of goods, on which it bases its claim for damages, was an interstate shipment; that plaintiff's claim is based upon the following statement of facts, to wit: On March 1, 1913, it loaded and consigned to R. E. Cobb, at St. Paul, 2,000 butter tubs of the value of 20 cents each. That, owing to the negligence of the said defendant, said tubs were totally destroyed, wherefore plaintiff sustained damages in the sum of $400. It is further claimed that the defendant charged the plaintiff excess freight in the sum of $7.20, which amount is sought to be recovered. That said suit involves a federal question, viz., an application and construction of section 20 of the federal Interstate Commerce Act, as amended by the act of June 29, 1906, which act, as construed by the court, grants to the United States District Courts exclusive jurisdiction of the character above described'

-- and defendant asks that the cause be removed to this court.

The state court ordered the removal over the objections of the plaintiff, and the latter now moves to remand the cause to the state court upon the grounds substantially: (1) That the amount involved is less than $3,000, exclusive of interest and costs. (2) That the cause of action alleged in its petition does not arise under or by virtue of any law regulating commerce; nor is it founded upon or created by any federal law. (3) That plaintiff's cause of action so alleged is based upon the alleged negligence of defendant, whereby plaintiff has been damaged in the amount for which it claims judgment, and does not arise under the Constitution, laws, or treaties of the United States.

The contention of the defendant is that the cause of action alleged by the plaintiff in its petition is one arising under the laws of the United States, and particularly under the 'act of Congress to regulate commerce' (chapter 104, Sec. 20, Act Feb. 4, 1887, 24 Stat. 386 (U.S. Comp. St. 1901, p. 3169), as amended by section 7 of Act of June 29, 1906, c. 3591, 34 Stat. 593 (U.S. Comp. St. Supp. 1911, p. 1307)), of which it is claimed the federal courts have exclusive jurisdiction, and may be removed from a state court, when brought therein, to the proper District Court of the United States, regardless of the amount involved or the citizenship of the parties. Sections 24 and 28 of the Judicial Code are relied upon by the defendant as sustaining its contention. Those sections, so far as material to the questions now involved, read in this way:

'Sec. 24. The District Courts (of the United States) shall have original jurisdiction as follows:

'First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects. (Then follows the provision as to suits upon foreign bills of exchange, and upon promissory notes or other choses in action in favor of assignees, etc.) * * * Provided, however, that the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section.'

The succeeding eighth paragraph of this section is:

'Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court.'

'Sec. 28. (1) Any suit of a civil nature, at 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, of which the District Courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district.

'(2) Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. * * * '

(These paragraphs are numbered as (1) and (2) for the convenience in hereinafter referring to them.)

The state courts of competent jurisdiction and the District Courts of the United States have concurrent jurisdiction of the suits mentioned in these sections, except where the jurisdiction of the latter is exclusive under some provisions of the Constitution of the United States, or is made so by section 256 of the Judicial Code or some other act of Congress. Claflin v. Houseman, Assignee, 93 U.S. 130, 136, 137, 23 L.Ed. 833; Mondou v. New York, etc., R.R. Co., 223 U.S. 1, 55, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N.S.) 44; Galveston, H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 490, 32 Sup.Ct. 205, 56 L.Ed. 516.

The removal of this cause from the state court cannot be sustained under paragraph (1) of section 28, for that paragraph authorizes the removal of suits arising under the Constitution, laws, or treaties of the United States only when such facts appear from the plaintiff's own statement of his claim, and, if they do not so appear, their omission cannot be supplied by the petition for removal, or in any subsequent pleading. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654, 38 L.Ed. 511; Chappell v. Waterworth, 155 U.S. 102, 15 Sup.Ct. 34, 39 L.Ed. 85; Oregon Short Line, etc., Ry. Co. v. Skottowe, 162 U.S. 490, 16 Sup.Ct. 869, 40 L.Ed. 1048; Florida Central, etc., R.R. v. Bell, 176 U.S. 321, 20 Sup.Ct. 399, 44 L.Ed. 486; and the recent case of In re Winn, 213 U.S. 458, 29 Sup.Ct. 515, 53 L.Ed. 873. This question, it would seem, is not open to debate in the lower federal courts.

There is nothing in the petition of the plaintiff in this case that shows even remotely that the cause of action therein alleged is one 'arising under the Constitution or any law of the United States,' unless it be the allegation 'that defendant is a railroad corporation engaged as a common carrier of persons and property in the states of Iowa and Minnesota. ' It is entirely clear that this allegation does not show any cause of action arising under clause (a) of the first paragraph of section 24 of the Judicial Code unless it be that part of the petition which claims $7.20 as an overcharge upon some shipment of freight. It is not alleged, however, that this overcharge was made upon the shipment in question, nor upon any other interstate shipment of freight; nor is it claimed in argument by counsel for either party that this claim has any bearing upon the question of the right to remove this suit; it might well, therefore, be dismissed from further consideration; but it will be referred to later. The removal of the cause from the state court cannot therefore be sustained under paragraph (1) of section 28 of the Judicial Code. May it be removed under paragraph (2) of that section? That paragraph authorizes the removal from a state court by the nonresident defendant of 'any other...