or in part, and exercised under legislation of congress; so decided, as we have seen, in U. S. v. Dewitt, 9 Wall. (U. S.) 41. Neither can the national government, through any of its departments or officers, assume any snpervision of the police regulations of the states. The state may also, under this power, says the same learned author, regulate the grade of railways, and prescribe how and upon what grade railway tracks may cross each other; and it may apportion the cost of making the necessary crossings between the corporations owning the roads; and it may establish regulations requir ing existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places when their approach might be dangerous to travel, or to station flagmen at such or any other dangerous places. The legislature has power by general laws, from time to time, as the public exigencies may require, to regu late corporations in their franchises so as to provide for the public safety. This is held to be a mere police regulation. Galena & C. U. R. Co. v. Loomis, 13 Ill. 548. But certain powers directly affecting commerce may sometimes be exercised, when the purpose is not to interfere with congressional legislation, but merely to regulate the time and manner of transacting business with a view to facilitate trade, secure order, and prevent confusion. Vanderbilt v. Adams, 7 Cow. (N. Y.) 361, where WOODWORTH, J., states very clearly the principles on which police regulations are sustained in such

cases.

Validity of laws on ob.

servance of Sabbath.

We have said that the laws to prevent the desecration of the Sabbath came properly under the police power of the state. Judge Cooley says, on this subject, the statute for the punishment of public profanity requires no further justification than the natural impulses of every man who believes in a supreme being, and recognizes his right to the reverence of his creatures. The laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments, the force of which will be admitted by all. The laws which prohibit ordinary employments are to be defended either on the same ground which justifies the punishment of profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day's rest in seven is needful to recuperate the exhausted energies of body and mind. Judge Cooley, speaking of those laws enacted to prevent desecration of the Sabbath, says they are not unconstitutional as a restraint upon trade and commerce. There can no longer be any question, if any there ever was, that such laws may be supported as regulations of police.

Specht v. Com., 8 Pa. St. 312; Bloom v. Richards, 2 Ohio St. 387; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130. Upon this subject of the Sabbath day observance, I have found none but state decisions in a great multitude of cited cases. It does not appear to have been ever, so far as my investigation has gone,-which has been somewhat limited, and not thorough,-a matter of decision with the federal courts, so far as the states are concerned. And I believe there is no probability that congress will ever assume the right to regulate the observance of the Sabbath day in the states. If, however, it should ever do so, I do not doubt that the American congress will protect the American Sabbath day from unnecessary desecration, by whomsoever it is essayed. Nor do I doubt that, if the supreme court of the United States should have this question under consideration. it would hold, as my view is, that the Sunday laws of this commonwealth are within the police powers of the state, and, moreover, that they in no wise affect interstate commerce. but, being limited in their operations to the state, whatever effect they have upon the through line of transportation outside of the state, it is no more than is proper, and in no way an interference with the granted power of the congress. It is to be regretted, as it is a federal question, that it cannot go up to the supreme court of the United States, and be settled there. Holding the views I do, I am constrained to dissent from the opinion of the majority.

State Police Regulations Concerning Railroads as a Regulation of Inter. state Commerce. See Stanley v. Wabash, St. L. & P. R. Co. (Mo.), 42 Am. & Eng. R. Cas. 328; State v. Creedon, (Iowa) 40 Id. 31; Louisville, N. O. & T. R. Co. v. Mississippi (U. S.), 41 Id. 36; Louisville, etc. R. Co. 7. State (Miss.). 39 Id. 399; Gulf, C. & S. F. R. Co. v. Dyer, (Tex.), 42 Id. 503; McCall 7. People, (U. S.). 45 Id. 1; Norfolk & W. R. Co. v. Commonwealth (U. S.), 45 Id. 9; Crutcher v. Commonwealth (U. S.), 46 Id. 637 : Little Rock, etc. R. Co. v. Hanniford (Ark.), 30 Iď. 67; Smith v. Alabama, (U. S.). 33 Id. 425; McDonald 7. Alabama (U. S.), 33 Id. 420; Chicago, etc. R. Co. v. Pierson (Ill.), 12 Id. 156. Note, 16 Id. 45.

State Sunday Laws as a Regulation of Interstate Commerce.--See State v. Baltimore & O. R. Co. (W. Va.), 18 Am. & Eng. R. Cas. 466, note 481, which must be considered to be directly in conflict with the decision of the supreme court of Virginia, in the principal case.

Indictment of Railroad Company for Running Trains on Sunday.-See State v. Norfolk & W. R. Co. (W. Va.), 43 Am. & Eng. R. Cas. 330.

DEY et al., Railroad Commissioners,

ย.

CHICAGO, MILWAUKEE & ST. PAUL R. Co.

(U. S. Circuit Court, N. D. Iowa E. D., Feby. 12, 1891, 45 Fed. Rep. 82.)

Action by Railroad Commissioners-Removal of Cause. A suit by the railroad commissioners of a state to enforce obedience to their regulations by a railroad company cannot be removed to the United States court, although the parties are citizens of different states, and the answer raises a federal question.

IN Equity. On motion to remand.

Bill to enforce orders of the railroad commissioners of Iowa.

John Y. Stone, Atty. Gen., and Fouke & Lyon, for complain

ants.

John W. Carey, for defendant.

Case stated.

SHIRAS, J.-The statutes of the state of Iowa provide, for the election of three persons to constitute "the board of railroad commissioners of the state of Iowa," and among other powers and duties conferred upon them it is provided that "said commissioners shall have the general supervision of all railroads in the state operated by steam, and shall inquire into any neglect or violation of the laws of this state by any railroad corporation doing business therein," etc. It is further enacted that any person, firm, or corporation complaining of anything done or omitted to be done by any common carrier, subject to the provisions of the statute, may apply to the commissioners by petition, setting forth the wrongs complained of; and it is made the duty of the board to investigate such complaint, and to make a report in writing thereon of the facts in the premises, and the order made thereon by the board, a copy of which is required to be served upon the common carrier, and if the carrier refuses or neglects to obey the order or requirement of the board, then it is made the duty of the commissioners to apply, by petition, to the district or superior court in the County wherein the principal office of the common carrier is kept, or of any county in which the road is operated, for the entry of a decree against the carrier for the enforcement of the order of the board. Provision is made for giving notice to the company of such application, for the taking testimony 47 A. & E. R. Cas.-2

and hearing in a summary way, and for the issuance of writs of injunction or other process for compelling obedience to the order of the board, in case the same is affirmed, and for the imposition of fines, in case of disobedience to the injunction issued, which fines, upon order of the court, are to be paid into the county treasury, and one-half thereof is then to be paid by the county treasurer to the state treasurer.

Acting under the provisions of this statute, one E. J. Little, of Lima, Ohio, representing the Niagara Fuel Company of that place, filed a complaint before the board of commissioners of Iowa, alleging that the defendant company had wrongfully refused to transport certain tanks of oil from the station of the Chicago, St. Paul & Kansas City Railway Company in Dubuque to Eagle Point, where was situated the place of business of the consignees of the oil, the same being within the corporate limits of the city of Dubuque, Iowa, and upon the line of the defendant company, the said tanks of oil having been forwarded from Lima, Ohio. Notice of the filing of this complaint before the commissioners was given to the railway company, and an answer filed by it, setting forth, among other things, that the transportation of the oil in question was a matter of interstate commerce, and not subject to the order or control of the board of commissioners of the state of Iowa. One of the matters in controversy was whether the transportation of the tank cars from the depot of the Chicago, St. Paul & Kansas City road in Dubuque to Eagle Point, likewise in Dubuque, was a switching service, to be paid for at the rate established by the commissioners for such service, or was part of the original transportation from Lima, Ohio, in such sense that the defendant company stood in the relation of a connecting company with the Chicago, St. Paul & Kansas City road. Upon the hearing the commissioners held that the contract of the Chicago, St.、 Paul & Kansas City company was to forward the tank cars to Dubuque; that this contract was fulfilled when the cars reached the depot of that company in Dubuque; that the transportation of the cars from that depot to the place of business of the consignees at Eagle Point, a distance of about three miles, was merely a switching service, and for the performance thereof the Chicago, Milwaukee & St. Paul Railway Company was entitled to charge the rates fixed for such service by the commissioners, and no more. The company refusing to obey the order made, the board of commissioners filed a petition in the district court of Dubuque county, for the purpose of procuring a decree requiring and compelling the company to obey the order named. To this petition the company filed its answer, setting up, among other things,

that the transportation of the cars in question was a matter of interstate commerce, and therefore not within the jurisdiction of the board of railroad commissioners of the state of Iowa, and thereupon filed its petition to remove the cause into the federal court, setting forth therein that the controversy is wholly between citizens of different states, the defendant being a corporation created under the laws of the state of Wisconsin and the complainants being all citizens of Iowa; that the matter involved exceeds in amount, exclusive of costs and interest, the sum of $2,000, and that the case presents questions arising under the constitution and laws of the United States, necessary to be heard and determined in the disposition of the cause. The transcript having been filed in this court, thereupon the complainants filed a motion to remand, on several grounds. Upon the argument of this motion the court suggested that it would hear counsel upon the question whether, admitting that the record showed that a federal question was involved, cases of this nature come within the jurisdiction of this court, so as to authorize a removal thereof for the purposes of an original trial; and, the briefs of counsel having been submitted, this question is now to be determined.

sented.

Upon part of the defendant it is submitted that the controversy is civil as distinguished from a criminal proceeding; that it is between citizens of different states; that it involves over $2,000 in amount; and that there- Question prefore it is brought clearly within the provisions of the removal statute. If by reason of these facts the case is a removable one, then it could have been brought originally in this court, because the statute, in express terms, confers the right of removal, on the ground of diverse citizenship, only in cases which, under the first section of the act, might have been originally brought in a circuit court of the United States. The real question to be solved is therefore whether a circuit court of the United States can entertain jurisdiction of a proceeding brought under the provisions of the state statute to enforce by decree the orders made by the board of railroad commissioners, touching the management and operation of the railways within the state of Iowa.

In determining whether jurisdiction in the federal court exists, regard must be had, not only to the form of the particular proceeding, but also to the nature, source, and purpose of the right sought to be enforced, Nature of proand if it appears that the controversy, in substance, involves a matter not within the federal jurisdiction, then the court must refuse to entertain it, even though in mere form the suit may be between citizens of different

ceeding must be considered.