Western Union Telegraph Co. v. Louisville & N.R. Co.

• Decision Date: 10 August 1912
• Docket Number: 1,658.
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO. et al.
• Court: U.S. District Court — Eastern District of Tennessee

201 F. 932

WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO. et al.

No. 1,658.

United States District Court, E.D. Tennessee, Northern Division.

August 10, 1912

Shields Cates & Mountcastle, of Knoxville, Tenn., for complainant.

J. B Wright and J. G. Johnson, both of Knoxville, Tenn., for defendants.

SANFORD District Judge.

The Western Union Telegraph Co., a corporation organized under the laws of the State of New York, filed its petition in the Circuit Court of Knox County, Tennessee, a county within this division of the Eastern District of Tennessee, against the Louisville & Nashville Railroad Co., a corporation organized under the laws of the State of Kentucky, the Central Trust Company of New York, the New York Trust Co. of New York, and the United States Trust Co. of New York, corporations organized under the laws of the State of New York. This petition alleged that the petitioner was a telegraph company engaged in transmitting messages and news by wires; that the Louisville & Nashville Railroad Co., a railroad corporation owned an easement or right of way extending through Knox County, Tennessee, upon which was constructed an interstate railroad operated by said defendant as a common carrier of freight and passengers, and for carrying United States mails, subject to the laws of the United States and the State of Tennessee; that the petitioner desired to operate and maintain an electric telegraph upon said railroad right of way through Knox County, and sought by its petition to condemn and acquire an easement for said purpose upon said right of way under and by virtue of the acts of Congress relating to telegraphs, contained in sections 5263 and 5268 (U.S. Comp. St. 1901, pp. 3579, 3581), inclusive, of the Revised Statutes of the United States, the provisions of which had been accepted by petitioner, and also under and by virtue of the statutes of the State of Tennessee; and that the defendant Trust Companies were made parties as being severally trustees under certain mortgages executed by the defendant railroad company upon its said right of way to secure certain issues of bonds. The petition prayed for process, that a writ of inquiry be awarded, a jury of inquest appointed to set aside the easement desired by metes and bounds and to assess damages, and that the easement so set apart be decreed to petitioner as a right of way; and for general relief.

The defendants, within the time allowed, filed their joint petition in the Circuit Court of Knox County for the removal of the cause to this court. This petition for removal alleged that the amount in controversy exceeded the sum of three thousand dollars, exclusive of interest and costs, and that the Telegraph Company asserted a right to appropriate the defendants' property under and by virtue of the act of Congress, and that the proceeding was a suit of a civil nature at law arising under the Constitution and laws of the United States. The petition for removal also alleged that the Railroad Company's right of way had been made a highway of interstate commerce by act of Congress of June 15, 1866, and a post road by acts of Congress of 1838 and 1878, and that the defendant Railroad Company had also become a telegraph company by amendment to its charter and acceptance of the act of Congress of July 24, 1866, and by virtue of the act of Congress of June 23, 1879, was authorized to transmit intelligence not only for its railroad purposes, but also for the United States and the general public, and that 'while petitioner claims and asserts certain rights against the property of defendants under the Constitution and laws of the United States, these defendants also claim certain rights, privileges and immunities under the same provisions of the Constitution and under the same laws of the United States. ' In an amended and supplemental petition filed by the defendants in the Circuit Court of Knox County, it was averred in greater detail that the controversy arose under the Constitution and laws of the United States, in that it necessarily involved the construction of clause 8, art. 1, of the Constitution of the United States, and the acts of Congress of June 15, 1866, and of July 24, 1866, in certain respects set forth in the amended and supplemental petition.

The Circuit Court of Knox County granted the defendants' petition for removal as prayed, and a transcript of the record having been filed in this court, the Western Union Telegraph Co., the original petitioner, hereinafter called the plaintiff, moved to remand the case to the Circuit Court of Knox County on two grounds: 1st, that the suit was not one of which the United States District Court had original jurisdiction; and, 2nd, that the suit presented no Federal question involving any substantial controversy.

The sole ground for removal stated in the defendants' petition for removal is that this is a suit of a civil nature at law, arising under the Constitution and laws of the United States, in which the matter in controversy exceeds, exclusive of interest and costs, the sum of value of $3,000.00. The jurisdiction of this court must be determined by the provisions of the Judicial Code, which was enacted March 3, 1911, and went into effect on January 1, 1912.

Section 28 of the Code, which is derived from section 2 of the act of March 3, 1875, c. 137, 18 Stat. 470, as amended by section 1 of the act of August 3, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 509), provides that:

'Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States * * * 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. 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 non-residents of that State.'

Section 29 of the Code, derived from section 3 of the act of 1875, as amended by section 1 of the act of 1888, provides that the party entitled to removal shall file his petition in the State court, 'for the removal of such suit into the district court to be held in the district where such suit is pending.'

The first subsection of section 24 of the Code, derived from section 1 of the act of 1875, as amended by section 1 of the act of 1888, vests the district courts of the United States with original jurisdiction of 'all suits of a civil nature, at common law or in equity * * * 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 (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens or subjects.'

Section 51 of the Code, derived from section 1 of the act of 1875, as amended by section 1 of the act of 1888, further provides, however, that:

'Except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'

So far as the question now involved is concerned, these several provisions of the Code in reference to the jurisdiction of the District Courts of the United States are substantially the same as the provisions of the acts of 1875 and 1888 in reference to the jurisdiction of the Circuit Courts of the United States, and the decisions under said former jurisdictional acts are directly applicable.

I find it unnecessary to determine however whether the plaintiff's statement of its own cause of action sufficiently shows that this suit arises under the Constitution and laws of the United States within the 'settled interpretation' stated in Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 152, 29 Sup.Ct. 43, 53 L.Ed. 126, and In re Winn, 213 U.S. 458, 465, 29 Sup.Ct. 515, 53 L.Ed. 873, since I am of the opinion that even if it be a suit so arising, nevertheless, as the defendants are not inhabitants of this district, and the suit therefore, under section 51 of the Code, could not have been originally brought by the plaintiff against them in this court, without the consent of the defendants, it cannot be removed by the defendants to this court or jurisdiction acquired by this court under their removal proceedings, unless the plaintiff consents to the jurisdiction of this court or waives its objection thereto.

1. Following the decisions of the Supreme Court in Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, and In re Moore, 209 U.S. 491, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164, it was uniformly held by the Circuit Courts of the United States, as a corollary of those two decisions, that a suit arising under the Constitution and laws of the United States when brought originally in a State court against a defendant who did not reside in the district in which the suit was brought, was not removable by the defendant to the Circuit Court of the United States for such district, and that, if removed, it must, unless the plaintiff waived objection to the jurisdiction...