Indiana ex rel. Delaware County v. Alleghany Oil Co.

BAKER, District Judge.

When a state brings a suit in a court of its own creation against a citizen of another state, no removal can be had into a circuit court of the United States on the ground of the diyerse citizenship of the parties. A state is not a citizen of any state, and, under the judiciary acts of the United States, it is firmly settled that a suit between a state and a citizen or corporation of another state is not between citizens of different states; and that the circuit courts of the United States have no jurisdiction of it unless it arises under the constitution, laws, or treaties of the United States. Ames v. Kansas, 111 U. S. 449 , 4 Sup. Ct. 437; Stone v. South Carolina, 117 U. S. 430 , 6 Sup. Ct. 799; Germania Ins. Co. v. Wisconsin, 119 U. S. 473 , 7 Sup. Ct. 260; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482 , 15 Sup. Ct. 192; State v. Tolleston Club of Chicago, 53 Fed. 18 .

This suit, if removable at all, is removable solely on the ground of the diverse citizenship of the parties. The complaint sets out a cause of action for the recovery of a penalty prescribed by the statute of the state. No right, privilege, or immunity is claimed by the plaintiff under or Tby virtue of the constitution, laws, or treaties of the United States. It is true that the defendants in their petition for removal set up the claim that the state statute is invalid by reason of its denial of privileges and immunities secured to them by the fourteenth amendment to the constitution of the United States. It is settled, however, that where the jurisdiction of the courts of the United States, whether original or by removal, depends upon the existence of a federal question, it must affirmatively appear from the allegations in the declaration or bill of complaint; and that no statement in the petition for removal, or in the answer or demurrer, can supply that want, under the existing acts of congress. Tennessee v. Union & Planters’ Bank, 152 U. S. 454 , 14 Sup. Ct. 654; Chappell v. Waterworth, 155 U. S. 102 , 15 Sup. Ct. 102; Walker v. Collins, 167 U. S. 57 , 17 Sup. Ct. 738; Pratt v. Coke Co., 168 U. S. 255, 258 , 18 Sup. Ct. 62.

It is insisted that the state i's a formal or nominal plaintiff, and-that the beneficial right of action is in the county of Delaware, for whose use the suit is prosecuted. Certainly there are cases where the suit is brought in the name of the state, on the relation or for the use of a person or corporation, where the state is merely a formal or nominal party, and the action is Drosecuted solely for the protection of a private right. In such cases the state has no interest to be protected. It allows the use of its' name solely for the purpose of protecting private rights in which it has no beneficial interest, and in which the enforcement of no governmental policy is involved. In cases of this character, the relator or the person for whose use the suit is brought is the real party plaintiff, and doubtless the mere formal use of the name of the state in such cases, if otherwise removable, would not defeat the right *873 of removal if the requisite diversity of citizenship existed between the relator or the person for whose use the suit was brought and the defendant. The present case, however, is not of this character. It is a suit by the state for the enforcement of an important governmental policy. The policy to be subserved is the protection from loss and waste of the natural gas and oil underlying a large portion of the state. Its protection concerns public, and not private, rights. It concerns the welfare of the whole state. The penalty is inflicted for the violation of the statute of the state enacted to secure public, and not private, rights. The penalty is due to the state for the violation of the statute, and the county of Delaware has no private or pecuniary interest in it. It is the beneficiary of the state’s bounty which may he withdrawn at any time. The fact that the state has provided that the penalty, when collected, shall he paid to the county in which the violation of the statute has taken place, in no sense makes the suit one to enforce a private or municipal right of the county. The state is the real party plaintiff, the cause of action belongs to it, and the county is named simply as the party to whom the penalty due the state is to be paid when collected. Grinnell v. Johnson, 28 Fed. 2 ; State v. Columbus & X. R. Co., 48 Fed. 626 .

And, if this were not so, still the suit must he held not to he within the jurisdiction of this court, because, although a civil action in form, it is in effect a suit to enforce a penal statute of the state. The contention that the action is civil, and not penal, in its nature, because the statute of the state declares it to be a civil action, is untenable. If congress had intended that the form of the action should determine the right of removal, apt language would have been used to Indicate that purpose. The language employed is “suits of a civil nature.” If the form, rather than the nature, of the action liad been intended to determine tin» right of removal, congress would undoubtedly have used the words “suits civil in form,” or perhaps the more general expression “civil suits,” instead of using the language employed. In using the language “suits of a civil nature” it discloses the intent that the court should look beyond the form to the nature or purposes of the suit. Looking at the nature of the present suit, it is apparent that its purpose is penal. The penalty prescribed is recoverable as a punishment’for the doing of acts made criminal by the statute. The state has no other purpose than to recover a penalty for a violated law, and thereby secure obedience to it. Chief Justice Marshall in The Antelope, 10 Wheat. 66, 123 , stated the rule in the most condensed form, as an incontrovertible maxim, namely, “That the courts of no country execute the penal laws of another.” The penal laws of the several states of the United States are regarded, so far as the jurisdiction of the courts of the United States is concerned, as laws of a foreign country. The only cases in which the courts of the United States have entertained jurisdiction over suits by a foreign state have been suits to enforce demands of a strictly civil nature. Wisconsin v. Pelican Ins. Co., 127 U. S. 265 , 8 Sup. Ct. 1370; State v. Chicago, B. & Q. R. Co., 37 Fed. 497 ; Ferguson v. Ross, 38 Fed. 161 ; U. S. v. Mexican Nat. Ry. Co., 40 Fed. 769 ; State v. Day Land & Cattle Co., 41 Fed. 228 ; Dey v. Chicago, M. & St. P. Ry. Co., 45 Fed. 82 .

*874 It follows that both grounds of objection to the jurisdiction of this court must be sustained. The case will be remanded to the state court at the costs of the defendants.