Illinois ex rel. Hunt v. Illinois Cent. R.

Mr. Justice Habeas, after stating the facts in the foregoing language, delivered the opinion of the court. This cause is before the court upon a motion in behalf of the state to remand it to the criminal court of Cook county, upon the general ground that it is not one of which a circuit court of the United States can, under the act of March 3, 18-87, properly take cognizance. As the matter in dispute exceeds, exclusive of interest and costs, the sum or value of £2,000, the motion must be denied, if the suit is one “arising under the constitution or laws of the United States,” and is also of a “civil nature.” Act March 3, 1887, §§ 1, 2. It is the settled doctrine of the supreme court of the United States that a case is one arising under the constitution or a law of the United States “whenever its correct decision depends upon the construction of either,” or when “the title or right set up by the party may be defeated by one construction of the constitution or laws of the United States, or sustained by the opposite construction.” Cohens v. Virginia, 6 Wheat. 379; Osborn v. Bank, 9 Wheat. 822; Water Co. v. Keyes, 96 U. S. 201; Railroad Co. v. Mississippi, 102 U. S. 135; Starin v. New York, 115 U. S. 257, 6 Sup. Ct. Rep. 28. In the last ease, the language of the court, speaking by the chief justice, was: “If, from the questions, it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States.” It is equally well settled that, as the right of removal from a slate court to a court of the United States is statutory, -jurisdiction must in some form appear in the record of every suit,” and, in a, case commenced in a state courL, that the record includes the petition for removal. So that, if the pleadings do not, at the time the application for removal is made, show the case to be one arising under the constitution or a Jaw of the United States, the facts making such a case must be set forth in the petition for removal; otherwise the state court is not deprived of its right to proceed. Water Co. v. Keyes, 96 U. S. 201. Applying these rules, it is clear that the present caséis one arising under Hie constitution of the United States. The information questions the authority of the railroad company to exercise posessory and proprietary rights over a largo body of submerged lands, constituting the bed of Lake Michigan, and to construct, maintain, operate, and lease for hire, docks, wharves, and piers upon said lands, The defense of the company, as we have seen, is that it acquired the ownership of those lands, and the right to construct, maintain, operate, and lease wharves, docks, and piers in connection therewith, by the act of April 16, 1869; and that the repealing act of 1873 is repugnant, as well to the clause of the constitution providing that no state shall pass any law impairing the obligation of contraéis, as to the section of the fourteenth amendment declaring that no state shall deprive any person of life, liberty, or property, without [726] due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. It is plain, upon the record as it stood when the right of removal was asserted, that the case really and substantially involves a controversy as to rights depending upon the construction or effect of the constitution. It does not differ, in respect to the point under consideration, from State v. Railroad Co., 16 Fed. Rep. 881, now under submission for final decree by this court. But it is contended that the case should be remanded, because it appears from the paper filed by the attorney general of Illinois that he disclaims reliance for any purpose whatever in this proceeding upon the repealing act. It is quite sufficient, upon this point, to say that the court is bound to take judicial notice of that statute, and must give effect to it, unless at the hearing it be adjudged to be unconstitutional and void. The disclaimer of the attorney general cannot work a repeal of the act of 1873, nor close the eye of the court to the fact that the state—if it could be constitutionalty done—has repealed the act of 1869. As the railroad company bases its claim to own the lands in question, and its authority to construct and maintain wharves, docks, and piers in connection with them, upon the act of 1869, the court, notwithstanding this disclaimer, could not refuse to adjudge—if such should be its opinion—that the right of the company to claim anything under that statute, in respect to those lands, had been legally withdrawn by the repealing.act. Even if the attorney general had stipulated with the company that he would not, in this proceeding, claim anything for the state under the latter act, the court would feel obliged to disregard such stipulation. Whether the repealing act had such effect, is a question which the company proposes to raise, at the proper time, and in proper form, for judicial determination. Upon that question mainly depends the result of this litigation. The presence in the cause of such an issue makes this a case arising under the constitution of the United States. The next question to be considered is whether this cause is of a civil nature. Except certain cases, of which this is not one, no case is removable from a state court, into a circuit court of the United States, unless it is of a civil nature. The earliest statute in Illinois allowing an information in the nature of a quo warranto was enacted in 1826. Its provisions were substantially preserved in the act of March 3, 1845, (Rev. St. Ill. 1845, p. 429,) which allowed such an information against any person usurping, intruding into, or unlawfully holding or executing any office or franchise, and which provided that, if the defendant was adjudged to be guilty, the court might give judgment of ouster from said office or franchise, and also impose a fine upon him. The first case in the supreme court of Illinois, under that statute, was Donnelly v. People, 11 Ill. 552. There the question was whether the constitutional provision that “all prosecutions shall be carried on ‘in the name and by the authority of the people of the state of Illinois,’ and conclude ‘against the peace and dignity of the same,’” embraced the case of an information in the nature of a quo warranto against an individual for usurping a public office. The court held the proceeding to be a substitute for the ancient [727] writ of q/w warranto, “but none the loss of criminal prosecution, as well lo punish the usurper for the usurpation of the franchise as to oust him from its enjoyment;” and that the same certainty is required in such in-formations as is required in indictments. To the sanie effect, as to the point in judgment, are People v. Railroad Co., 13 Ill. 66, and Hay v. People, 59 Ill. 94. In People v. Ridgley, 21 Ill. 66, it was said that such an information was “understood to bo a criminal proceeding;” and in Smith v. People, 44 Ill. 23,-—which was an information in the nature of quo ‘warranto for usurpation of office, by one who was alleged to be ineligible thereto,—the proceeding was incidentally described as one “in the nature of a criminal information, and, before it can be maintained, the proof must be clear and satisfactory that the party is disqualified.” But the cases which seem to involve more directly the question as to the nature of such a proceeding are People v. Shaw, 13 Ill. 581, and Ensminger v. People, 47 Ill. 387. In People v. Shaw—which was an information in the nature of a quo warranto against certain persons for usurping the office, of bridge commissioners—one of the questions presented was whether that, ease was embraced by a statute regulating changes of venue only in civil causes. The court, speaking by Catón, j., said: “In form this is a criminal proceeding, hut it is only so in form. In substance it is for the protection of the private and individual rights of the relator and others in the precinct similarly situated. Donnelly v. People, 11 Ill. 552. * * * It is the nature of the rights to be asserted and maintained to which we should look, rather than the form in which the party may be obliged to proceed to assert those rights, in giving a just interpretation to the statute. This being, in substance, a civil suit, we are of opinion that the statute secured to the relator a right to a change of venue upon making out a proper ease.” In Ensminger v. People—which was an information in the nature of a quo warranto against certain persons assuming to collect tolls and control the anchoring of vessels at Cairo—the question was whether the case was governed by the act giving power to the court to grant a change of venue to a defendant in an indictment or information, for an offense not punishable by death. It was contended that the court, under that statute, had a discretion in the premises, whereas, in civil causes, the right to a change of venue, in certain circumstances, was absolute. The court said: “Is this an offense punishable criminally? If so, it falls within this enactment; if not, it is otherwise. We are aware of no decision that has ever held that a proceeding by quo warranto is criminal in its nature, much loss in form. * * * It then follows that, as this is not a criminal proceeding, the court erred in refusing to grant a change of venue.” The result of the cases under the statute of 1845, in the state court, seems to bo that, while an information in the nature of a quo warranto, for usurpation of an office or franchise, is a “prosecution,” within the moaning of the constitutional provision above referred to, must be framed wdth the precision required in indictments, and be sustained by clear and satisfactory proof,-—it is, in its substance, and from the nature of the rights asserted by it, a civil proceeding. Such, evidently, is the [728] theory of the act of March 23, 1874, under which this proceeding was instituted. That act is a revision of the law of Illinois in relation to quo warranto. Among the cases in which it permits an information in the nature of a quo warranto, is that of a corporation exercising “powers not conferred by law,” in respect to which, if found guilty, the court may enter judgment of ouster, and also impose a fine. The seventh section of' that act provides that “appeals and writs of error may be taken and prosecuted in the manner, and upon the same terms, and with like effect, as in other civil cases,”—directly implying, if not expressly declaring, that the cases "therein provided for are civil cases After the adoption of this statute, the case of People v. Holtz, 92 Ill. 428, was determined in the supreme court of Illinois. That was an information in the nature of a quo warranto to try the title to the office of directors of schools in a certain district of St. Clair county. The question was 'presented whether the appeal in that case should not have gone to the appellate court of the state. The court said: “This is not a criminal case, nor does it involve a freehold or the validity of a statute.” In Ames v. Kansas, 111 U. S. 460, 4 Sup. Ct. Rep. 437, the whole subject was carefully considered. That was a proceeding to test the right of one railroad company to hold, possess, and use the franchises and privileges, powers and immunities, of another railroad corporation. It is contended that that case is inapplicable here, because-, while the Kansas statute authorized a dissolution of the corporation, where the charge was sustained, it did not authorize the imposition of a fine. But it is clear that the court would not have reached a conclusion different from that announced, had the local statute authorized the imposition of a fine or penalty upon the offending corporation. The chief justice, upon a full review of the authorities, and referring to the original common-law writ of quo warranto, said: “This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which, in its origin, was ‘a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him or keep it for the crown.’ 3 Bl. Comm. 263. Long before our Revolution, however, it lost its character as a criminal proceeding in everything except form, and was ‘applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the unlawful possessor,—the fine being nominal only,”’—citing, among other authorities, King v. Francis, 2 Term R. 484. In the latter case the inquiry was whether a new trial could be granted on an information in the nature of a quo warranto for usurping an office; its determination depending upon the question whether the .proceeding was criminal or civil in its nature. The new trial was granted, the court observing “that of late years a quo warranto information had been considered merely in the nature of a civil proceeding.” The decision in Ames v. Kansas was distinctly to the effect that the nature of the right asserted and at issue in a proceeding of this character, under a state law, furnished the test whether the proceeding was of a civil or a criminal nature. So, in 4 Bl. Comm. 312, the author says that the information in the [729] nature of a quo warranto is “usually considered, at present, as merely a civil proceeding.” Referring to the two modes for judicially ascertaining and enforcing the forfeiture of a charter for default or abuse of power, one mode being by scire facias, where there is a legal existing body capable of acting, but who has abused their power, Kent says: “The other mode is by information in the nature of a quo warranto, which is in form criminal, and in its nature a civil remedy.” 2 Kent, Comm. 313. See, also, Cole, Crim. Inf. 112, 113; Jac. Law Diet. tits. “Information and Quo Warranto;” Ang. & A. Corp. § 733. Although the practice in Illinois in this class of cases is, in some respects, similar to that obtaining in criminal cases, and although informations in the nature of quo warranto may be of a “(quasi criminal nature,” under the statute defining and regulating the jurisdiction of the criminal court of Cook county, (Wiggins v. City of Chicago, 68 Ill. 372; Naylor v. City of Galesburg, 56 Ill. 285,) I am of opinion that, as the primary and only material object of the present proceeding is to enforce a civil right, it is to be regarded as a suit of a civil nature, within the principle of the decision in Ames v. Kansas, and within the meaning of the act of congress; and this, notwithstanding the court has a discretion, in addition to a judgment of ouster, to impose a fine. The motion to remand is denied. Blodgett, J. I concur in both the opinion and the judgment.