OMAHA HORSE-BY. CO. V. CABLE TRAM-WAY CO.
689
OMAHA HORSE-Ry. CO. V. CABLE TRAM-WAY CO. OF OMAHA.·
(Oircuit Oourt,
n. Neb1'a8ka.
February 6,1888.)
COURTS-FEDERAL JURISDICTION-SUPPLEMENTAL BILL.
While the federal courts have jurisdiction of actions between citizens of the same state when federal question)! are involved, and may, in such actions, determine issues otherwise triable by the state courts, their jurisdiction cannot be el[tended to other questions and issues raised by supplemental bill filed the determination of the original cause.
In Equity.
On demurrer to supplemental bill.
BREWElt, J. This ease is now submitted on demurrers to supplemental bill' ahd amendments thereto. A brief review of the past litigation is
important. The original bill was filed by the complainant, a corporationchai'tered 'by the legislature of the territory of Nebraska, and given ftn exclusive franchise for the building and operating of a horse-railroa<J irr'thecity' 'of Omaha for the terUl of 50 yearS. The defendant is also a corporation, organized under the laws of the state qf Nebraska, and bavhlg received,as was claimed,', pepnission from the city of Omaha, was proceeding to construct a cablE! tram-way in its The bill sought t'oenjointhe defendant from prosecuting its work, on the ground that ll1uch cable tram-way was ahihfrin,gement of the exclusive franchise given to coJhphihiant, which exchislve franchise the state of Nebraska was reby the federal constitution from interfering with in any way, directly or indirectly. Upon the hearing of the case I ruled that the complainant's exclusive ftanchise",as liinited to a mere horse-railway, and did not inclu'deall manne'rofsti'eet-railway travel, and therefore that the cable was no invasion ofits exclusive franchise. It was strenuously insisted by the defendant that, having ruled on the federalquestion against the complainant, the only proper decree was one dismissing the bill; but, under the authority of Railroad 00. v. Mississippi, 102 U. S. 135, and cases cited therein, I ruled that the existence of a federitlquestion gave to this 'court jurisdiction of the entire cause, and that it was its duty to hear' and determine all other questions existing in the case between the parties. The constitution of the state of Nebraska prohibits both the damagihg and the taking of private properly for public uses WitllOut compensation, and it seemed to me, under the facts as disclosed by the testimony, that while the complainant's exclusive franchise was not invaded, .its property rights were damaged by the building of the proposed caMe tram-way. I therefore directed that the matter of the damages to its properly be referred to a commission.. That ·commission eXllmined the 'question, and reported in favor of the compl:1iri(\,nt a certain: amount. . On exceptions to their report, and a motion to' confirm it; a second lengthyhearing was After reducing the amount allowed by the commissioners, I sustained their report, and di,. i ' . -. ,
lSee former reports of this cti8e, SO Fed. Rep. 824, and 52 V .33F.no.13-44
Rep. 727.
FED:JllBA,LREPORT'tR.
rected a final decree in favor ofihe complainant for such amount. No such, ,de.cree has :been in 'fa{lt eptered, bl.lt, /lfter, the proceedings above named, complainant obtained leave to file a supplemental bill, and subsequently certain amendments thereto. The matters presented in these pleadings are those now challenged by demurrer and before me for consideration. r three matters presented: F'ir8t, it is averred that the supposed permission to the defendant tooccupytbe streets of Omaha with its cable trarri.way was never in fact legally given, and that its entry upon the streets was a mere trespass; 8econd, there is presented a question about the occupancy of a street heretofore occupied by party; and, third, defects in the construction of certain crossings of complainant's track by alleged. .several grol.lnds"for demurrer ,dis'cussed ,on the argument: OIJ.e only will be that is deemed fatal: " , ' , true, as a,genei-a} proposition, that, at any time before finlll ,decre¢I;'the court may permit:the bringing in of matters germane to the origin,tii sinpe the filing of Dal in, order to make ,a d.eplsion of the entire tW,een We Jiaitie». , is nqt largely affected by the qqE',stj?P wl;ie,ther tllE!, ppurt is Qne 9f jurisdiction?' Can it vey thejur},sqiction to matters wNch,but for the rule, there wou14 be bere are bci,th'Qitizens,of Nebraska, and ordinary p/iltween them must Qe settled ,by the and, fedof. pontroversy between them, in eral courts,' can only take which federal questiqn. ,,-Now :betrue, as. I it and . j the of ,a. federal question in, the ,cp;se, as court t,Qhear aQa' aU ofthe pending can it b¢ 'thapt, also gives th'e court pow:eJ,' to .continue, and dra\Vto itself all 'Ilubsequent disputes,.'even If ,to, the original, cont:rqv:ersy? Seetowhat that, might leaa. '. The charter has3() yeaxs to of the strEjets are occ\lpieq by thetracks of each partYi aul!,as the 'city grows, mor(will be occupied b,y ,and doubtless, :ipsome tpe same street by both. Crossi,ngs will, inthEj nature hiiye to be .. ferhaps there will be in .the of tb,eseorossingsjperhaps negligenc.e in management ?I' cars of they appro/lch such crossings. ',All sies naturally andproperIy in the state courtS. ',Can it',be that, because ill tlw,llrst instance was a federalqqestion growiIig ,out 6f'the allegedjIlvasion oran eXQl:usive franchise, the federal courts can, Y, bills, t,ake .cogn,iZ,ance Of, thesec,on,'tin,uin, g a,nd repe,a"t,, 'lng controvijraies? ,' It will :be borne in mind that, there has notbe.en ,cOnstant ,on the part of the judges qtiestio:t:i the oia federal power, to, :bes,f arid determine all the questions in the case, and surely'. if that be a: matter of doubt, it would be unwise to attempt to carry the federal court a step furthe:r. jjJ, not thedeaign of
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GOLDSMITH
V.BROWN.
691
the federal oonstittition, or the purpose of congress, to make the federal court a'rbitratorsof disputes between citizens of the same state. To their own courts such Citizens must look, and the repeated monitions of the supreme Caution 'the, trial courts not to take jurisdiction of cases of whichthei'r jurisdiction is doubtful. Believing that,unlel:;s the line be drawn so;as to give jurisdiction of such questions only as exist in the case at the time it is submitted, can be no definite line placed, and the door will be opened to an indefinite exercise of jurisdiction by the federal courts over matters of purely local nature, I feel constrained' to sustain the demurrer. The matters presented by these subsequent bills and amendments are purely local in their nature; of them, by themselves, e<;>nfessedly the federal' courtawould have no jurisdiction. When they were brought into the case there remained no federal question in it for detertmination;and there being no federal question, there is nothing upon which to hal1g the jurisdiction ,of this court. The demurrer will be sustained, and 'the case will be passed to decree upon the original pleadings and the report oithe commissioners, as modified.
GOLDSMITH et' al. v.
BROWN et
at. BY CoNFEBBION-
(Oif'Cttit OOUf't, ]G; D. Mi88ouri, E. D. fQwlllR TO DEQLARE AS AN ASSIGNMENT.
February'S, 1888.) . ·.·
. A. federal court cannot decree a judgment by
in a state court, to be an assignment for the benefit of creditors.
entered
In Equity:. .Upon demllrrer,to the bill. Complainants filed a 'bill in the United States circuit court for·the Eastern division' pf the Eastern judicial district of Missouri, the purpose of which waS ito have a judgment by confession entered, in the circuit court of the state decreed to be a voluntary assignment for: the benefit of all the creditors of ,the judgment debtQr, and asking to have the moneys which had been collected by execution under such judgment distributed pro rata among all the creditors of the judgment debtor, according to the ':}fovisions of the assignment laws of the state of Missouri. The was demurred to. In the course of the argument an unreported oral decision of Mr. Justice MILLER, overruling a motion fOf rehearing iu the case of Weil v. Polack, 30 Fed. Rep. 813, was referred to by counsel. A. Bin8Wanger, for complainants. Nathan Prank, for , (orally,) With reference to the $tatement of cpunsel as to the ru!ingse,of,Justice to the question now under th:er,e, ,is nodoubt that Justice MIl-LER meant 'to decide, in Weil v. Polack, that there can be no $uch