State ex rel. City of Columbus v. Columbus & Xenia R.

Sage, J. The objections to the jurisdiction are: First. That the circuit court of the United States cannot acquire jurisdiction by removal from a state court of an original proceeding in mandamus, such as was instituted in this cause. The state of Ohio, upon the relation of the city of Columbus, seeks to compel the defendants to lower their tracks at the crossing of High street, so as to place them 12 feet and 3 inches below their present location. Second. That the state of Ohio is the plaintiff, and the real party in interest in the cause. The first' objection is supported by Rosenbaum v. Baxter, 120 U. S. 450, 7 Sup. Ct. Rep. 633, holding that a circuit court of the United States has no jurisdiction in mandamus except in aid of a jurisdiction previously acquired by that court, and that it cannot acquire jurisdiction by removal from a state court of an original proceeding to obtain a mandamus against the treasurer or the board of supervisors of a city to compel them to take action, in accordance with the statute of Ohio, to pay the interest or principal of bonds issued by the city. The objection that the state is the. real party in interest, and therefore the case is not within the jurisdiction of the circuit court, is supported by New Hampshire v. State, 108 U. S. 76, 2 Sup. Ct. Rep. 176; New Jersey v. Babcock, 4 Wash. C. C. 344; and Adams v. Bradley, 5 Sawy. 217. The objections to the jurisdiction of the court on each of the above grounds are well taken,.and will be sustained. It is also urged that there is not in this case a separable controversy between the Baltimore & Ohio Railroad Company and the plaintiff. The proceeding is against the defendants jointly. They all use the tracks at the crossing of High street, and the prayer is that they be compelled' to lower them as stated above, and to construct a viaduct which shall accommodate the travel over the street. In the nature of the case, the judgment in the cause must be for or against all the defendant companies. Certainly no decree could be rendered against-the Baltimore & Ohio Railroad Company without including itsdessor, under whose lease it operates its trains upon the tracks which cross High street; and the lessor is a citizen of the state of Ohio. The fact that the Baltimore & Ohio Railroad Company filed a separate answer does not make its controversy a separable one. Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. Rep. 90; Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. Rep. 730. Upon the proposition that the controversy is not a separable one, Ayres v. Wiswall, cited above; Railway Co. v. Wilson, 114 U. S. 60, 5 Sup. Ct. Rep. 738; Starin v. City of New York, 115 U. S. 248, 6 Sup. Ct. Rep. 28; and Safe-Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733, — are in ¡joint, and leave no room for doubt that the Baltimore & Ohio Railroad Company has no separable controversy in-this case. Counsel for the Baltimore & Ohio Railroad Company, however, contend that the defense that the company has vested rights-which are.sought [629] to be interfered with or taken away by the proceeding in mandamus raises a federal question which brings the caso within the jurisdiction of this court. This point was considered in Dey v. Railway Co., 45 Fed. Rep. 82. There the suit was brought by the state railroad commissioners to compel a railway company to obey an order made by them in their official capacity respecting the transportation of cars. The complainants were all citizens of Iowa, and the defendants, a Wisconsin corporation. The case was removed to the circuit court of the United States. It was urged against the motion to remand that upon the face of the record it was apparent that there was a federal question involved, which conferred jurisdiction upon the federal court. The court held that, if it were admitted that the facts pleaded by the defendant company presented a question arising under the constitution and laws of the United States, the inherent nature of the proceeding would not thereby be changed, and that, if the subject-matter of the suit was not within the jurisdiction of the circuit court, a defense thereto, based upon the constitution or laws of the United States, could not confer upon that court the power to grant the relief sought if that defense were overruled. The court further held that the remedy in such cases is to set up in the state court the defense presenting the federal question, and upon an adverse ruling it could he taken from the court of last resort in the state to the supreme court of the United States, and in that way the administration of the public laws of the state be left to the state tribunals, and the federal question be finally decided by the highest federal court. This Is a clear and forcible statement of the rule, in which 1 entirely concur, and it disposes of the objection. As to the proposition that this suit does not involve in amount or value the sum necessary to bring it within the jurisdiction of this court, the pleadings and the admissions of counsel upon the hearing of (he motion make it plain that the objection is not well founded. The changing of the grade of the tracks, saying nothing of any other cost or expense, mus( necessarily cause an outlay of many times the jurisdictional amount. The motion to remand will be granted, at the costs of the Baltimore <fc Ohio Railroad Company.