626

lI'EDERAL REPORTER,

vol. 48.

that,whilerthejoinderoheparate and distinct claims Ol'rights ofaction may be 'parmittecil under pi-oper circumstances, for convenience' sake: and to prevent a multiplici1tJy.of suits,Mdto escape unneCellsarycosts, it i13 not'per.mitted to addtog.etherthe severaland distinct money interests belonging. to the litigantS', in order: to oreate a jurisdiction which does hot otherwise exist. As it !appears from the face of the record that none of the distinct and several amounts of taxes assessed against the bank and its shareholders exceeds $2,000, it is clear that the controversy does not embrace a matter in dispute exceeding that sum the etatute,is a requisite tothejurisdictioD; and, being without jurisdiction, aU that the court,can do is'to dismiss the bill for that reason. ',EOOERTON,J.,oonours.

ill

,.,;

(CirouU

·In Eg:litt:r; ·Suit' by the !>akota National Bank against Ole S. Swell80ll and others to enjoin thecolleotiiaIi of taxell.. , ' '.' .. :, ' , M()Mar«n& Oarl.flna, fa!,' .. '.'. ' D: R. Ba4;ley,C. L . .Broc'k:Wtr:lJ, and Park Dwut8; for defendants. ' . Before SHIBAII and ·.

, ·. The want of It does 'not. BPpe.ar that an.y of the tnesa88ess.ed agains.'t th.&comPIa.in.ant. banlt. or' any. ODe of its. it Mtappear that ,tbe involves eha1'Elboiders exceeds $2,000, an" "a in exceeciing.in V'l;\lue $2,000, Which under now in force isa requisite to the jurisdiction'of thiS court. For the authontieEi arid 'grounds 1m e:l)tema. upon which this rulillg Is balled; see opinion 'jullt Aled lnth9 of Bank 48 Fed.. Rep. 62L .I
,1llDOUTON, J.t OQncUra.,

STATE ez'

ret

CITY OF'

CQLtl'MBUS

& XENIA R. Co. eta!.

<Ctrcuit Co'Urt.8. D. Ohio, E:

· ·

,I

December Ill, 189L)

L"RBHOVAL OP CAUSEs-I'RooEEDnfil IN' M.umAMUll. 'i . 'As the federal circuit courts no except in aid of juristliction previously acquired, an original proceedinll in manctam'UB, brought upon' the relation of a' City to' compeL railroads to-lower the grade of a street orossing,is not removM>le;thllil'llto from the Sl;ate court at ,lfue :iD,stance of a non. defendapt. v. ,7, Ct-Rep. 638, 120 U. S. 450, fol. ' ' " . , .. ' . " lowed. PARTt. 'll.' SAlIIE---JURISDICTION OPCIBOUIT In Buch a proceeding the sta,j:e is tlle real party in interest, and for thill reaSOn also the circuit court wouLd 'have no jurisdlctibn of the' case. New Hampshire v. State, 2 Sup. Ct. 108 V.·S. 76,,' foUowetL: ,',' ,t. SAME-FEDBRAL .QqES'JI(>,N. , . '. '....: ,.', I" j '.' ,.,.. , ." The fact that one of the roads claims to a vested right in the existing cross· . ·lng, which is entitled to proteCtion UDder the 'constitution· of the United States

BTATlttl. COLUMBUIl & XENIA R., 00.

627

c10es not, under such circumstances, give the circuit court jurisdiction. The propep course is to raise the federal questionJn the state courts, and then take it by appeal to the United States supreme court. ' ,
.. BAME-SEPARABLE CONTROVERSY.

,

A proceeding in mandamlJ8' on the relation of a city to compel several railroads to lower s' street crossing jointly used by them is not a separable controversy sa between the state and one of .the roada which U88S the track over the crossing by virtue of a lease from another road.

At Law. Motion to rema;pd. This ig 8 proceeding in mandamm, instituted by the state of Ohio upon the relation of the city of Columbus to compel the defendant railroad companies, all of which, with the exception of the Baltimore & Ohio Railroad Company, are citizens of the state of Ohio, to construct a safe and sufficient croBsing over the tracks at High street in said city, and to restore 8$id highway to its original condition of usefulness. The peti. tion was filed in the circuit oourt of Franklin county, Ohio, on the 24th day of February, 1891. On the 3d of October, 1891, the defendant the Baltimore & Ohio Railroad Company and certain other companies were by leave of the court made defendants, and duly served with process requiring them to appear on the 2d of November, 1891, and show cause as specified in the writ. On the 31st of October, 1891, the Bal· Railroad Company filed an answer, setting up that it was a corporation organized under the laws of the state of Maryland, and that it ,acquired by contract made by its lessors with the city of Columbus the right to the use of said street, and to the same at grade; and that said contract was in full force, and conferred upon it vested rights, which neither the state nor the city, could interfere with or take away. The pptition for removal was filed on the 2d of November, It sets forth that the, defendant is a citizen of the state of Marylanda.nd the plaintift a citizen of the state of Ohio, and that there iS8separabie controversy between them which be fully determined other parties to the suit. It also withont the presence of any of sets the nature olthe suit, andthe denial of the alleged corporate duty, obligation, and liability of ,the detendant set out in the petition filed in said cause. The motion to remand assigns the following reasons: , (1) That this court has no jurisdlction to hear and determine the controversy in this action. ,' , (2) That this is not an action mentioned or described in the act of congresg defining the jurisdiction of the circuit courts of the United States. (3)' ,Thllt it. is nota suit between the City of Columbus and the fendants, or any of them, but that it is a. suit between the state of Ohio and thesC3 defendants. ,',' "., " , . (4),.'i'hatthe duty, ohligation,and lial:>ilityof the Baltimore,& Ohio Railroad Company, which the plaintift',prays the court to compel said defendant, perform, is not distinctaDfI separate from the duty, tion, and liability of othl'lrdefendllAts in this cause. ' , ." matter, in dispute does) not exclusive of ,the sum and value of ,$2,000·
· ," . . .'. ,-..... ' -," '-,'. " ... J.,_

FEnEllA!. REPORTER,

vol. 48.

',;$e1,'IIJY'it N,.. Owen, for lelator. _.J. H. Collin8, for Baltimore & O. R. Co.
SAGE, J. The objections to the jurisdiction !lre: Jilirst. That the cireuitcourt of the United States cannot acquire jurisdiction by removal from a state court of ao original proceeding in mandamu8, such as was instituted in this cause. The state of Ohio, upon the relation of the city of Columbus, seElks to compel the defendants to lower their tracks at . the crbssing of High street, so as'to place them 12 feet and 3 inches below their present ·location. Second. That the state of Ohio is the plahltiff,and the real party in interest hi the cause. The -first objection is supported by Rosenbaum. v. Bauer, 120 U. S. 450,7 Sup. Ct. holding that a circuit court of the United States has no juris,diction in manaam'U8 except in aid .of 'a jurisdiction previously acquired by ,that court, and that 'acquire jurisdictioilby removal from astnte court of an original 'proceeding to obtain a mandamus against bbardof supervisors' of a city to cOIDp'elthem to accordance, ",iththe stattifeof Ohio, to pay the interest at princl1>r[ Of bonds issued that the state is in inte'rest,and therefore the is withinthejurisdiction of'tlle circuit conrt, is supported by New Hampshi:"ev. State, 1()8 U. 2 Sup. Ct. Rep. 176; New Jerseyv. Babc(Jck, 4'Wash. C. C. 344 jand AdarMv. Bradley,' 5Sawy .217. The objections fa the jucourt on each of the above grounds' arawell taken, and risdiction '6f will be sustained. ' . It is also' that' there is Ilotin this case a separablecoIitroversy betwebn 'the Baltimore & Ohio Railroad Company and tbeplaintiff. The, proceeding is against the defendants jointly. They all use the tracks at the crossing of High street, and the prayer is thai they be compelled to lower them stated apove, and to construct It viaduct which shall accommodate the' travel over the street. In the nature of the case, the Judgment in the cause must be for or against all the defendant Certainly no decree cQuld he, rendered against the Railroad' Conlpany witho:nt including its lessor, under whose lease, it pporates its trains upon the tracks which cross High street; and the lessor is a citizen of the Slate Of Oliio. The fact that the &. Ohio Railroaq Company filed a separrite answer does not make cdn'troversy a separable one.· , v. Wiswall, 112 U. S. 187, .; Sup. Ct. 90; Railroad Co. v. Ide, 114 U. S.. 52, 5 Sup. Ct. Rep. 735; Pirie Y. Tvedt, 115 U. ,S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v.Anderson, 117 S. 275, 6 Sup. Ct. Rep. 730. 'Upon the proposition that the controversy is not a separable one, Ayres v. Wiswall, cited above; Railwqy Co. v. Wilson, 114 U. S. 60, 5 Sup. Ct. Rep. 738; Starin v.Oityof New York, 115U. S. 248,6 Sup. Ct. Rep. 28; and SafeDepositOiJ.v.'Hv}(ltington, 117 U. S. 280, 6 'Sup. Ct. Rep. 733;-are in point, and'leave no rooni, for douht that the Baltimore & Ohio Railroad 90mpany ha,s no separable controversy in this case. ' ", for the Baltimore & Ohio Railroad Company, however, contend that the defense that the company has vested rights which are sought

as

n.

STATEV. COLUMBUS 4: XENIA B.CO.

629

to be interfered with or taken away by the proceeding in mandamua raises a federal question which brings the case within the jurisdiction of this court. This point was considered in Dey v. Railway Co., 45 Fed. Rep. 82. There the suit was brought by the state railroad commissioners to compel a railway company to obey an order made by them in their official capacity respecting the transportation of cars. The complainants were all citizens of Iowa, and the defendants, a Wisconsin corpomtion. The case was removed to the circuit court of the United States. It was urged against the motion to remand that upon the·face of the record it was apparent that there was a federal question involved, which conferred jurisdiction upon the federal court. The court held that, if it were admitted that the facts pleaded by the defendant company presented a question arising under the constitution and laws or the United States, the inherent nature of thepr()ceeding would not thereby be changed;' and that, if the subject-matter of the suit ",as not within the jurisdiction of the circuit court, a defense thereto, based upon the constitution ()f laws of the United States, could uot confer upon that court the pOwer to grant the relief sought if that defense were overruled. The court further held' that the remedy in such cases .is to set upin the state court the defense presenting the federal question, and upon an adverse r.uling it could, ,be taken from the court of last resort in the state to preme court of the United States, and in that way the administration of the public laws of the state be left to the state tribunals, and the federal question be finally decided by the- highest federal court.' This is a clear and forCible statement of the rule, in which I entirely ,conCur, and it disposes of the objection. , . , .., . As to the proposition that this suit 'does not involve inairjount or value the sum necessary to bring it within the jurisdiction of this court, the pleadings Rud the admissions- of counsel upon the hearing of the motion make it plain that the objection is not wellfounded. The changing of the grade of the tracks, saying nothing of any other cost or ex-' pense, must necessarily cause an outlay of many times the jurisdictional amount.. 'The motion to remand will be granted, at the costs of the ·Baltimore .dI; Ohio ,Railroad Company.

630

FEDEBALBEl'ORTEB,

vol. 48.

In re

j :;, ,

CHASE

et al.

'

(otreuit Oourt. D. Ma88achlltBef;t$. January 11,1892.)

ev_rPMB PlJTIES-CLASSIFIOA.TION-CoMMON

...Tarift Act tS\lO,

.i .. ;' '.

,

,

K, par. 877, class 2, imposes a duty of 12 cents per pound On Cotswold; Lincolnshire, down combintwools, Canada long wools, or otller like combing wools q! English .bloo.d;. * * and also hair of the camel, goat, alpaca, and other like animals... 'Beta that, In view of the fact that in formllr act&this . has. beell .construed· to.llmbrsCll only combing wools, common goat hair is not included ill. it, tlut blliongs in paragraph 604 of the free-list, which covers "hair of horses, cattle, and other animals * * * not spllcially provided tor ill this act. ..

GOAT HAm·

At Law., Petition by L. C. Chase & Co. for a review of the decision of the board of general apprllisers as to the classification of common goat hair. Reversed. JosiahP. for petitioners. Henry 4 .. Wyman, Asst. {I. S. Atty.

CoLT,' J·., The. subject ·ofimportation in this case was common. goat hair, uponw'hich the collector assessed a duty of 12 cents per pound, under :paragraph 377, Schedule K, of the tariff act of October 1, 1890, which is as follows: "Class two. that is to say Leillester, Cotswold, Linllolnshire, down combCalladll long wools', pr 6ther.llkecombing wools of English Mood, and usually knqwn by herein used, and also, hail of the camel, goat, alpaca, aud other like animals." The pr9tested against this asse!lsment, and claimed the merchapdise in que$tion came under paragraph 604 of the freelist, which provides as Jollows: .. Hair of horlJea. cattle, and otber animals · · · not specially provided .' . ' for in this act. If The board of general appraisers affirmed the decision of the collector, and the petitioners now al'lk the court to review this question, as providEd by section 15 ofthe,.:act of 1, 1890. .The grounds upon which the board based their decision are set forth in the prior case of Oentral Vt. R. 00. v. Collector oj Burlington, (G. A. 280,) where the same question arose. H must be admitted that the question here presented is not free from difficulty. Paragraph 377 of Schedule K of the tariff act of 1,890, U11der which this importation was classified by the collector, relates to what is known as the II combing-wool" class, embracing those kinds of wool which are fit for combing; the closing part of the paragraph, however, has reference to hair, anll specifies the" hair of the camel, goat, alpaca, and other like animals." Now, it is admitted that the hair of the camel and, further, that the hair of certain and alpaca are fit for kinds of goat, like the Cashmere and Angora, are adapted for combing purposes. Shall the words, then, II hair of the * * * goat," be taken literaIJy as if they formed a rlistinct paragraph, and so held to cover all