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states, and for an amonnt exceeding the jurisdictional limit named in the statute. Thus, in Wisconsin v. Pelican Ins. Co., 127 U. S. 265-292, it is said by the supreme court that “the essential nature and real foundation of a cause of action are not changed by recovering a judgment upon it; and the technical rules, which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judgment is presented for affirmative action, (while it cannot go behind the judgment for the purpose of examining into the validity of the claim,) from ascertaining whether the claim is really one of such a nature that the court is authorized to enforce it." In that case an action was brought orininally in the supreme court of the United States by the state of Wisconsin against the Pelican Insurance Company of Louisiana, upon a judgment rendered in the circuit court of Dane county, Wis., against the insurance company, for the sum of $8,500 and costs. The form of the action was civil, being in debt upon the judgment record, but the supreme court, looking beyond the mere form of the action, found that the judgment sued on was for fines assessed against the insurance company for violations of the statutes of Wisconsin regulating the business of insurance within the state, and refused to entertain jurisdiction. While the ultimate judgment of the court in that case is placed upon the ground that " the courts of no country execute the penal laws of another,' yet is it not entirely clear, from the line of reasoning pursued, that if the state of Wisconsin had filed a bill in equity in the supreme court of the United States against the insurance company, for the purpose of compelling obedience to some requirement of the state statute regulating the business of insurance within the state, the court would have held ad. versely to the jurisdiction, on the ground that courts of the United States are not clothed with jurisdiction to undertake the ordinary administration of the laws of the several states regulating matters of purely state concern? In the enactment of the statutes regulating the railway business of the state it is the sovereign power of the state that is the foundation of the authority to enact the statute. The establishment

and maintenance of the public highways of the Enforcoment

country is a governmental duty, and railways are only the modern or improved highway furnished for the transportation of passengers and property lieve it of the duty of so controlling the management thereof as to secure to the public the use of such highways in such a manner as to fulfill the purpose for which the

over the same. Although the construction and operation of the railways within the state has been intrusted to corporations, yet that fact does not deprive the state of the power to supervise the operation of the railways, nor re

of state laws belongs to state.

state authorized their construction. In the building, maintenance, and operation of the railway system of the state there was and is, of necessity, exercised powers of a sovereign or governmental nature. Such are the right of eminent domain and of taxation; and while the formal proceedings for the exercise of these powers may have been had in the name of a particular corporation, nevertheless the power set in motion thereby was that of the sovereign state, and its nature was not changed by the mere form of the means employed to call it into action. The taking of private property in the location and construction of a railway, in the first instance, can only be sustained under the power of eminent domain, and the right to continue the operation of a railway over the property of the citizen calls for the continued exercise of the same sovereign power, which can only be justified upon the principle that the operation, as well as the original construction of a line of railway, is the exercise of the public duty primarily imposed upon the state as the representative of the people, and in the performance of which the state may subject private property to the burden necessary to be imposed in order to secure the building and operation of the highway. In enacting statutes providing for the building, maintenance, operation and management of railways as part of the public high ways of the state, the power exercised is sovereign or governmental, and the enforcement of the provisions of the statutes in these particulars belongs to the sovereignty enacting the statutes, and the agencies by it provided for that purpose, and no other government, state or national, can, either through its executive or judicial arm, undertake to administer such statutes.

In undertaking the public duty of regulating the operation of the railways of the state of Iowa, the legislature has provided a system creating a board of commissioners and authorizing such board to invoke the aid of the courts of the state in administering the law regulating the railways, and in express terms the statute creates the mode of procedure to be followed when the aid of the courts is invoked, and power is conferred upon the courts named in the statutes to grant writs of injunction and other process as a means of compelling obedience to the rules established by the board of commissioners, if the same are confirmed by the court. By the laws of the states of Wisconsin, Illinois, and other states, similar contend for a moment, if the attorney general of Iowa should

apply, for instance, to the board of commissioners of the state of Wisconsin, for an order directed to the Chicago, Milwaukee & St. Paul Railway Company, requiring it to obey some provision of the statute of Iowa regulating the railway business in the latter state, that the Wisconsin board could entertain the same on the ground that the Chicago, Milwaukee & St. Paul Railway Company was a corporation created under the laws of Wisconsin. The reply would be that the board of commissioners of the state of Wisconsin had no power to administer the laws of the state of Iowa; and would not the same be true if the application was made to a court of the state of Wisconsin for a decree to enforce an order made by the Iowa commissioners? It is a well known fact that a large part of the railways of the state of Iowa are operated by corporations created under the laws of the states of Wisconsin and Illinois, and it certainly cannot be true that by reason of that or any other fact the attorney general of Iowa can file in the courts of those states petitions for decrees compelling obedience to the rules and orders adopted by the Iowa commissioners. The Wisconsin corporations would be within the territorial jurisdiction of the courts of that state, as would likewise be true in Illinois, as to the corporations created in that state; but the subject matter of the controversy would not be within the jurisdiction of the courts of either of the named states, and for that reason no relief could be had therein. The same must be true of the federal courts,

for the United States has no more power to underFederal court take the administration of the local laws regulating has no

the railways of lowa than has the state of Wisconjurisdiction.

sin. We must not be misled by the fact that this court exercises its jurisdiction within the state of Iowa. It is not a question of territorial jurisdiction in the limited sense of the mere place of bringing suit, but of jurisdiction over the subject matter. If the contention of counsel for defendant is sustainable, and it be held that the subject matter of the controversy is within federal jurisdiction, then as to the mere place of bringing suit the choice is given, under the statute of 1888, of bringing the proceeding in the district wherein either the plaintiff or the defendant resides, and this suit might have been brought in the federal court in Wisconsin. The argument that sustains the jurisdiction in the federal courts over the subject matter must likewise sustain the jurisdiction of the federal court in Wisconsin, as well as that in Iowa. Can it be true that the United States courts in Wisconsin will undertake the duty of compelling the Wisconsin corporations to obey the rules and regulations of the state of Iowa touching the railway business in Iowa? if, however, the United

method of

States courts in Iowa can take jurisdiction of a proceeding of this nature on the ground of diverse citizenship, simply because the commissioners are citizens of Iowa and the defendant a corporation created under the laws of Wisconsin, then it must follow that the proceeding might have been originally brought in the United States circuit court in Wisconsin, and if there is nothing in the subject matter of the proceeding precluding the United States court in Wisconsin from undertaking jurisdiction, there is nothing to preclude the state courts of Wisconsin from doing likewise, and thus the conclusion will be reached that the state of Iowa, acting through its board of commissioners, can impose upon its sister states, as well as upon the United States, the duty and expense of administering the public laws of the state of lowa, regulating its highways, and the operation and management thereof.

A strong argument against the exercise of jurisdiction by the federal court of a proceeding of this nature can be based upon the provisions of the statute regulating the

Same-Effect method of procedure. The statute provides that of statute proa petition shall be filed in the district or superior viding court of the proper county; that it shall be a proceeding in equity; that it shall be heard in a sum

procedure. mary and inexpensive way; that the court shall have power to issue injunctions mandatory and restrictive, requiring obedience on part of the railway company, its officers, and employes, to the decree of the court, and to punish a violation thereof by a fine not exceeding $1,000, and by imprisonment; that the decree entered by the

court shall remain in force until the rule or order on which it is based shall be modified or vacated by the commissioners. If the federal court can, either originally or by removal, take jurisdiction of a petition filed by the board of commissioners under this statute, how is the same to be proceeded with? The statute, as well as the nature of the remedy, requires the proceeding to be in equity.

a federal court carry through a suit in equity in any other mode than is provided for in the rules of equity prescribed by the supreme court? If the court requires the suit to be conducted as therein provided, then the orders of the board are not carried into effect in the summary and inexpensive way provided for in the state statute. Furthermore, the statute itself points out the methods, by fine and imprisonment, by which obedience to the decree of the court, enforcing the order of the commissioners, is to be secured. Can the courts of the United States enforce such punishment ? If the United States court orders the imprisonment of A. B. as a means of enforcing obedience to its decree, can the board of commissioners, by vacating the order made by them, vacate

Can

the decree of the United States court and thus release A. B. from imprisonment? If fines are imposed by the United States court, and collected or paid into the hands of the clerk, what disposition is to be made thereof? Can the clerk, disregarding the provisions of the United States statutes, pay such fines to the treasurer of the county under the provisions of the state statute? These and other like difficulties tend to support the conclusion that a proceeding of this nature, whether viewed in regard to the nature of the power sought to be exercised, or in regard to the form of the proceeding, and the results to be accomplished thereby, is one not within the jurisdiction of the federal courts under any statute now in force. The distinction existing between controversies wherein it is sought to enforce or protect private rights and those wherein the state, either in its own name or through the agency of officials, created by the laws of the state, is seek. ing to ensorce public rights or fulfill public duties, must be kept in mind. A failure on the part of a common carrier to obey or observe some provision of the state statute may create a right of action, private in its nature, on behalf of an indi. vidual of which the federal courts would have jurisdiction if the amount at stake, and the citizenship of the parties litigant, was such as to confer jurisdiction between the parties, but when the proceeding is brought under the state statute for the purpose of compelling the common carrier to manage its business in the mode required by the rules or orders adopted by the commissioners, then the state is seeking to compel obedience to its public laws, and the state, whether the suit is in its own name, or in that of some board or official created by the laws of the state, is acting in its sovereign or governmental capacity, and in so doing it must act through agencies of its own creation.

In the present case the state of Iowa, through its board of commissioners has undertaken to regulate the method of

switching cars between the different lines of railFederal court

way terminating at the city of Dubuque, and has

fixed the compensation to be paid therefor, and by regulation of the proceeding filed in the district court of Durailways.

buque county seeks a decree of court to compel the defendant company to obey the rule thus established. The purpose of the proceeding is not to establish or protect any private right, or to recover damages for a wrong done to an individual, but solely to compel the railway company to yield obedience to the laws of the state regulating the railway business of the state; and of such a proceeding the courts of the United States are not authorized by the statutes now in force to take jurisdiction, either originally or' by re

cannot enforce state

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