Appellants Brief — Ohio Ex Rel. Seney v. Swift & Co.

SS SAINT LYS AONE PTS REN

IN THE

Supreme Court of the United States

October Term—1921

No. 300

THE STATE OF OHIO, EX REL. ALLEN J.

SENEY, PROSECUTING ATTORNEY

oF Lucas County, OHIO,

Appellant,

vs.

SWIFT AND COMPANY AND THE NoRTH-

ERN REFRIGERATING COMPANY,

Appellees.

Brief on Behalf of Appellant

Roy R. STUART,

Prosecuting Attorney,

Lucas County, Ohio,

ALLEN J. SENEY,

Special Counsel,

Solicitors for Appellant.

SUBJECT INDEX

RRR GE GI GD onsite nscssceesesscnnesiciverpenspevinns 1

URECREIO, OE TECUIIES ocicnnssnnsssssnnnnsseregercennqncsrrznnqnsions 5

FI So ccicsshinkchinissnsiritensrnnonsinpinehinnceapesnbiapmmnipaniniti 6

District Court no Jurisdiction ....................2.....+---+-+- 8

(1) Of action based on penal statute ............ 10

Cie Se 5 aR eeemernremee eee 14

(3) No diversity of citizenship.................---. 23

(4) No denial of equal protection of law ...... 39

(5) Defense claim that property is subject

to interstate cammerce does not confer

jurisdiction on District Court ................ 44

CASES CITED

Arkansas vs. Kansas & Texas Coal Co., et al, 183

AE Wiis MAME incaabuaCentaeiaibn initiatokcnhaddbapanmnnnabanmniaenal 13

Arkansas vs. Kansas & Texas Coal Co., 183 U. S.,

¥ DIE. aise hittaerearhaicctnaneseadeiantckedenakbeerohaaiitaie 25

Arkansas vs. Kansas & Texas Coal Co., 183 U.S

EIR EER SS MES ee er OE ET 27

Arkansas vs. Kansas & Texas Coal Co., et al., 183

5 Se) | BREDA RL eR ei ieaeeee Meet 33

Arkansas vs. Kansas & Texas Coal Co., et al., 182

ie Med SU cicnissichcancrblin vidlintinsiciinnecbutnthatindnstereiciingl 38

Arkansas vs. Kansas & Texas Coal Co., et al., 182

tiling SEED: eatin siGvaidindtnasiaorapoisliginipsiinansacenaindasonnioiaid 45

City Montgomery vs. Postal Tel. Cable Co., 218

PS MN sis occatcianccishsiulabuasenichiekniiansinagainsacoamainl 14

Columbus Packing Co. vs. State in rel. Schlessinger,

Pros. Atty, et al., 100 O. S. 285 .................... 36

a SPER TIN LIGNE LP SR TIN NY

Commonwealth Ky. vs. Chicago I. & L. Ry. Co. 123

Bic IA intanctecksdncasnsaihnibanaiinnan seesbuce qntainacnnmnaseste 11

Commonwealth of Ky. vs. Powers, 210 U. S., 1......42

General Code, Ohio Sec., 11586 ...........-..---:0-::-+++ 5

General Code, Ohio Sec., 6393 ...............2:------e:-0000+ 8

General Code, Ohio Sec., 1151-1 -.........----.--------0--++ 10

General Code, Ohio Sec.. 2916 -..............---.c--000000-++ 26

Postal Tel. Cable Co. vs. Alabama, 155 U. S., 482..24

Postal Tel. Cable Co. vs. Alabama, 155 U. S. 482....37

Scott vs. Kinney, 137 Fed., 1009 ................-----.------+- 40

8 NG DL Oe @ , ap Saeeeenen eee annenenann 14

Upshur County vs. Rich., 135 U. S., 467 ...........-.--- 23

Valentine Law (Sec., 6400) -...-...-----------c-eceeeeeeeeeeees 8

Virginia vs. Rives, 100 U. S., 313 ~.........----------------+ 40

Ne TO 00, Gig OD scnkccnicensiasnceqesnneeasinceors 14

I eR ERD Ad, Gig. WO cncenenecncnaneesesecennnnceesorns 38

TN BIS TEE ks: Dg WOU. cnciiemsnpenconnencninctcniannvens 45

IN THE

Supreme Court of the United States

October Term—1921

No. 300

THE STATE OF OHIO, EX REL. ALLEN J.

SENEY, PROSECUTING ATTORNEY

oF Lucas County, Ouro,

Appellant,

Vs.

SWIFT AND COMPANY AND THE Nortn-

ERN REFRIGERATING COMPANY,

Appellees.

BRIEF ON BEHALF OF APPELLANT

SUE

STATEMENT OF THE CASE

This action was brought by the State of Ohio as

plaintiff on relation of Allen J. Seney, Prosecuting

Attorney of Lucas County, Ohio, against Swift and

Company and The Northern Refrigerating Company,

2

in the Court of Common Pleas of Lucas County, Ohio,

wherein the plaintiff, The State of Ohio, alleged in

substance that Swift and Company had stored a certain

quantity of whole pork carcasses and parts thereof

with The Northern Refrigerating Company, in vio-

lation of the Valentine Anti-Trust law and the Smith

Cold Storage Act, both penal statutes of Ohio, and

claiming that Swift & Company and The Northern

Refrigerating Co. entered into an agreement to and

did in fact create and carry out certain restrictions in

trade and commerce, in violation of said State statutes,

by reason of the storage of said pork as aforesaid;

and said The State of Ohio prayed is said action for

an injunction preventng the removal from said ware-

house by Swift and Company or The Northern Refrig-

erating Company of said pork; prayed for the appoint-

ment of a receiver, and that an injunction issue re-

straining said defendants from further carrying out

any other and further restrictions in trade and com-

merce, in violation of said State statutes, or either of

them.

The petition was filed on or about August 27th,

1919, as cause Number 80910 in the Court of Common

Pleas of Lucas County, Ohio. The record in this case

will disclose that a temporary retaining order was

issued the same day the petition was filed against Swift

-and Company and The Northern Refrigerating Com-

pany, restraining them from removing said pork, or

3

any part thereof; that on the following day, to-wit,

August 28th, 1919, on the motion of the State of Ohio

plaintiff, a receiver was appointed for said pork; and

on the same day notice was personally served on said

defendants, Swift and Company and The Northern

Refrigerating Company, of the hearing of said

motion; that on September 2nd, 1919, said Swift and

Company filed its petition for removal and bond with

the clerk of the Court of Common Pleas of Lucas

County, Ohio, and served notice of the filing thereof

on said plaintiff, by leaving a copy thereof with Allen

J. Seney, Prosecuting Attorney; that on September

3rd, 1919, pursuant to said notice of the hearing of

said motion for an order to sell said pork, said parties

were in court, and on application of the plaintiff the

presentation of said petition for removal and the hear-

ing of said motion to sell said pork was continued until

September Sth, 1919; that on September Sth, 1919,

and before the presentation of said petition for re-

moval to said court, said plaintiff, The State of

Ohio, in open court, voluntarily dismissed without

prejudice, under the statutes of Ohio in such cases

provided, said Swift and Company from said

action; that thereafter, towit, on September 11th,

1919, said Swift and Company filed a transcript of the

proceedings in said Common Pleas Court, in the United

States District Court for the Northern District of

Ohio, Western Divison, and had said transcript of

4

said proceedings entered on the dockets of said Dis-

trict Court as Equity Cause Number 222; that on Sep-

tember 12, 1919, a motion was filed by the State of

Ohio to remand said cause to said Court of Common

Pleas for the reason that said cause was not “a re-

movable cause” within the provisions of the Federal

Statute providing for the removal of causes from a

State Court to the Federal Court, and that said Fed-

eral District Court was without jurisdiction to enter-

tain said action; that on October 1, 1919, said motion

to remand said cause was by said Federal District

Court overruled; that said District Court thereupon,

over the objection of said The State of Ohio, proceed-

ed to receive and hear evidence on behalf of Swift &

Company on the motion of Swift & Company thereto-

fore filed for an order releasing said pork from the

custody of said receiver and turning the same over to

Swift & Company; that on October 6, 1919, Swift &

Company, at the suggestion of the District Judge of

said United States District Court for The Northern

District of Ohio, Western Division, filed a motion for

judgment, and on October 8th said District Court and

the Juldge thereof, John M. Killits, granted said mo-

tion for judgment, discharging the injunction thereto-

fore issued by said Court of Common Pleas and dis-

charging the receiver therefore appointed by said

Court of Common Pleas, decreeing the custody and

5

control of said pork to be in Swift & Company and

dismissing said petition, assessing all costs against the

appellant herein; to which orders and decrees of

said Federal District Court of the Northern District

of Ohio, Western Division, the appellant duly except-

ed, and thereafter prosecuted an appeal to the United

States Circuit Court of Appeals, Sixth Circuit, which

said Circuit Court, in an opinion filed January 17,

1921, affirmed the’ decree and order of said Federal

District Court.

The action was dismissed in the Court of Com-

mon Pleas as to Swift and Company under the pro-

visions of Section 11586 of the General Code of Ohio,

so much of which as is pertinent is as follows:

“An action may be dismissed without preju-

dice to a further action;

1. By the plaintiff before it is finally sub-

mitted to the jury, or to the Court, when the

trial is by the Court:”

SPECIFICATION OF ERRORS

The appellant contends that the United States

_ Circuit Court of Appeals for the Sixth Circuit. erred

in affirming the decree and order of the United States

District Court for the Northern District of Ohio,

Western Division, for the following reasons:

First. That said Federal District Court for the

Northern District of Ohio had no jurisdiction of the

6

parties or the subject matter of the original action

commenced in the Court of Common Pleas of Lucas

County, Ohio, being number 80910, in which said

action The State of Ohio was the plaintiff and one

Swift & Company and The Northern Refrigerating

Company were defendants, in that there was no diver-

sity of citizenship giving said Federal District Court

jurisdiction of said action, in which said original

action number 80910, The State of Ohio was seeking

to enforce, in the Court of Common Pleas of Lucas

County, Ohio, against Swift & Company and The

Northern Refrigerating Company the provisions of

two penal statutes of the State of Ohio, commonly

known as the Valentine Anti-Trust Law and the Smith

Cold Storage Law, and with relation to the enforce-

ment of which said Federal District Court had no

jurisdiction.

SeconD. That the said District Court erred in

refusing to remand said cause number 80910 to the

Court of Common Pleas of Lucas County, Ohio.

ARGUMENT

There is but one question involved in this appeal

and it was so found by the Court below (see Rec. 96-97

“The Laws of the United States”, “Denial of Civil

Rights”, Diverse Citizenship”). It may be stated in

this way: Did the Federal District Court under the

laws of the United States have the right and power to

Spiess eine a a ee

7

assume, entertain and exercise jurisdiction in said cause

number 80910, docketed as equity cause number 222 in

said Federal District Court for the Northern District

of Ohio, Western Division, and attempted to be re-

moved from the Court of Common Pleas of Lucas

County, Ohio, to said Federal District Court?

In the opinion of the Court below the Court, in

its statement of facts, in the very first paragraph there-

of, refers to Sections 6390-6402 of the Ohio General

Code, which that court say authorizes the attorney

general or prosecuting attorney of the proper county

to “institute proper proceedings in quo warranto, in-

junction or otherwise, by way of petition setting forth

the case and praying that such violation shall be en-

joined or otherwise prohibited’. Yet the court below

complains that there is no allegation in the petition

which authorizes Allen J. Seney as Prosecuting Attor-

ney of Lucas County, Ohio, “to cause the State to

we.

This Court will at once observe (which the Court

below obviously overlooked) that this cause was orig-

inally brought in the Court of Common Pleas of Lucas

County under the laws of the State of Ohio by the

“duly elected, qualified and acting Prosecuting Attor-

ney of Lucas County, Ohio”, and that it was not neces-

sary to allege in the petition filed in the State Court

the express authority of the State to bring such an

action, although if that action could have been com-

ae PE AITTAELNST NTS RET AERP Y ARON SERRE

8

menced in the Federal Court such an allegation would

perhaps have been necessary.

Attention is called to the quotation of Section

2916 of the General Code of Ohio as it appears here-

after in this brief, which specifically authorizes the

prosecuting attorney to “prosecute on behalf of the

State all complaints, suits and controversies in which

the State is a party.”

A District Court Has No Jurisdiction of an Action

Brought by « State and Based on the Penal Stat-

utes of a State.

The action filed in the Court of Common Pleas

as Number 80910, entitled “The State of Ohio ex

rel. Allen J. Seney, Prosecuting Attorney of Lucas

County, Ohio, vs. Swift and Company and The North-

ern Refrigerating Company,” is based on the violation

by appellees of the provisions of two penal statutes

of the State of Ohio, to-wit, Section 6393, et seq. of the

General Code of Ohio, known as the Valentine Anti-

Trust Law, and in part as follows:

“Sec, 6400. The several courts of Common

Pleas in the state are hereby invested with juris-

diction to restrain and enjoin violations of this

chapter. For a violation of any provision of

this chapter by a corporation or association

mentioned herein, the attorney general, or the

prosecuting attorney of the proper county, shall

institute proper proceedings in quo warranto,

injunction or otherwise in a court of competent

FLARE Ee a eo TT oe

9

jurisdiction in any county in tne state where

such corporation or association exists, does busi-

ness a a domicile. When such suit is in-

stituted by the attorney general in quo war-

ranto, he may begin the same in the Supreme

Court of the state, or the Circuit Court of

Franklin County. When such suit is instituted

by the attorney general to restrain and enjoin

a violation of any provision of this chapter he

may begin the same in the Court of Common

Pleas of Franklin County. Such proceeding

to restrain and enjoin such violation-or viola.

tions shall be by way of petition setting forth

the case and praying that such violation shall

be enjoined or otherwise prohibited. Upon the

filing of such petition and before final decree the

court may at any time make such temporary

restraining order or prohibition as shall be

deemed just in the premises. In any action or

proceeding in quo warranto by the attorney

general or a prosecuting attorney against a cor-

. poration the court in which such action or pro-

ceeding is pending may, ancillary to such action

or proceelion restrain or enjoin the corpora-

tion and its officers and agents from continuing

or committing during the pendency of the ac-

tion the alleged act or acts by reason of which

the action is brought. When, in a proceeding in

quo warranto by the attorney general or any

prosecuting attorney, any corporation incarpor-

ated under the laws of this state is, on final

hearing found guilty of violating any of the

provisions of this act, the court may declare a

forfeiture of all its rights, privileges and fran-

chises to the state and may order the incorpor-

ation dissolved and appoint a trustee or trus-

tees to wind up its affairs as is provided in

other cases in quo warranto.”

SN aaa cae ae ee Ca Ra On ore et ta Sant Tar at net

10

And Section 1151-1 et seq. of the General Code

of Ohio, known as the Smith Cold Storage law, and

in part as follows:

Se tise

Section 13. No person, firm or corporation

shall sell, or offer, or expose for sale, any of

the following foods which have been held for

a longer period of time than herein specified

in a cold storage warehouse: * *; whole

carcasses of pork, or any parts thereof, six

a sn

“See, 1155-29. ° *

Section 19. Whoever violates any of the

provisions of this act shall be guilty of a mis-

demeanor and upon conviction thereof shall for

the first offense be fined not more than five hun-

dred dollars, and for the second and each subse-

quent offense not more than one thousand dol-

lars, and in addition thereto imprisoned in the

jail of the proper county not less than thirty nor

more than ninety days, or both.”

This action is not “a removable cause’ with-

in the contemplation of the Federal Statutes providing

for the removal of causes from a state to a Federal

court, for the following reasons:

FIRST: The Federal District Court has no jurisdiction

on removal of a cause of action based entirely on

a State statute, for the Federal District Court has

no original jurisdiction of such an action.

In the case of Commonwealth of Kentucky vs. Chi-

11

cago 1. & L. Railway Company, 123 Fed. Rep., page

457, which was an action by the State of Kentucky to

enforce the collection of state tax levied under a state

Statute against the defendant railway company, an

order of removal was denied. The syllabus is as

follows:

‘Removal of causes—Federal Questions—

Action based on State Statutes.

An action by a state to enforce collection of

a tax imposed by a state statute is not one of

which a Circuit Court of the United States

would have original jurisdiction under section

| of the judiciary acts of 1887 and 1888 (Acts

March 3, 1887), c. 373, 24 Stat. 552 and Aug.

13, 1888, c. 866, 25 Stat. 433 (U. S. Comp.

St. 1901, p. 508) either as being between citi-

zens of different states or as arising under the

constitution or laws of the United States, and

is therefore not removable by defendant under

section 2 (24 Stat. 552, 25 Stat. 433) (U. S.

Comp. St. 1901, p. 509) although the petition

may be demurrable for a reason found in the

federal constitution.”

The court on page 458 of the Opinion say in part

as follows:

“The claim that this court has jurisdiction

of the action is based solely upon the provision

of section 2 of the jurisdictional acts of 1887

(24 Stat. 553) and 1888 (25 Stat. 434, c¢.

866) U. S. Comp. St. 1901, p. 509, which au-

thorizes the removal of any suit of a civil na-

ture, at law or in equity, arising under the con-

stitution or laws of the United States, of which

ReteneT IEEE EEE LT ITS ERE ETN FOE

RN OT OE ~ « + S

12

the Circuit Courts of the United States are

given original jurisdiction by section 1. It is

contended by defendant that this action is a suit

arising under the constitution and laws of the

United States, of which the Circuit Courts

thereof are given original jurisdiction by the

said Section 1. Undoubtedly it may be said

that the plaintiff's petition presents a federal

question, to-wit, whether said statutory pro-

vision is a violation of the commerce clause of

the federal constitution, which can be and is

raised by demurrer to the petition; but it does

not follow from this that it can also be said that

suit by reason of that fact is one ‘arising under

the constitution and laws of the United States,"

within the meaning of those words in the acts

of 1887 and 1888. So far as it can be said to

arise at all, it arises under the act of the Legis-

lature of Kentucky, and is based solely on it.

The state of Kentucky is seeking to enforce no

right or benefit conferred upon it or to which

it is entitled by virtue of the constitution or laws

of the United States. It certainly could not

have brought this action in this court in the

first instance, and claimed that it had jurisdic-

tion thereof under section 1 of said acts, because

the defendant could claim in defense of the ac-

tion that the statutory provision in question was

‘n violation of the federal constitution, and

hence the action could not be maintained at

all. If this court could not have had original

jurisdiction of the action, it cannot obtain juris-

diction thereof upon removal. The following

cases support our position: Tennessee v. Union

& Planters’ Bank, 152 U. S. 454, 14 Sup. Ct.

654, 38 L. Ed. 511; Kansas v. Atchison, T. &

S. F. Ry. Co. (CC) 77 Fed. 339; Shields v.

13

Bordman (CC) 98 Fed. 455; Arkansas vs.

Kansas & Texas Coal Co., 183 U. S. 185, 22

Sup. Ct. 47, 46 L. Ed. 144.”

In the case of The State of Arkansas vs. Kansas

and Texas Coal Company and San Francisco Railroad,

found in 183 U. S. 185, which was a bill filed in the

County Court of Arkansas by the state of Arkansas

on the relation of Joe Johnson, prosecuting attorney,

seeking to restrain the Kansas and Texas Coal Com-

pany from importing a number of armed men in a

community where a strike was in progress, the Supreme

Court in holding that the action was one brought

by the State of Arkansas to enforce the police powers

inherent in the state government, and therefore not a

removable action, say in the. first paragraph of the syl-

labus as follows:

“The test of the right to remove a case

from a state court into the Circuit Court of the

United States under section two of the act of

March 3, 1887, as corrected by the act of Au-

gust 13, 1888, is that it must be a case over

which the Circuit Court might have exercised

original jurisdiction under section one of that

act.’

We contend that the District Court could not

have entertained original jurisdiction of this cause,

the State of Ohio being the real party plaintiff, as the

only Federal court having original jurisdiction of such

PROPRIA EEE TE LD OBE BH EEE NEIL NRE

14

a cause would be the Supreme Court of the United

States, under the Federal constitution.

(See Constitution of United States, Art.

III, Sec. 2, Par 2.)

In the case of Re Winn, 213 U. S. 458, the first

paragraph of the syllabus is as follows:

“No cause can be removed from the state

court to the Circuit Court of the United States

unless it could have originally been brought in

the latter court. Boston Mining Co. v. Mon-

tana Ore Co., 188 U. S. 632, and Ex parte

Wisner, 203 U. S. 449.”.

NOT A “CIVIL ACTION” WITHIN THE MEANING

OF REMOVAL ACT

Second. The action filed by the State of Ohio

against Swift and Company and The Northern Re-

frigerating Company is not “a civil action at law or

in equity” within the meaning of the statutes of re-

moval, for the reason that it is an action based on,

the violation of two penal statutes of the State of

Ohio, wherein the State of Ohio is seeking to enforce

the provisions of said criminal statutes by writ of in-

junction and the appointment of a receiver to dispose

of the property held in storage in violation of the

Anti-Trust Law and the Smith Cold Storage Law;

and the mere fact that the remedy of injunction is

resorted to by the State of Ohio to enforce the pro-

visions of its penal statutes and prevent a continued

violation of their provisions, does not change the na-

ture or character of ‘the action.

In the case of the City of Montgomery, Ala., v.

ae SOLIDE AOE

15

Postal Telegraph-Cable Co,, faund in 218 Federal Re-

porter, page 471, which was an action by the City of

Montgomery against The Postal Telegraph Company,

wherein the City of Montgomery alleged in its bill

that the Telegraph Company was doing an interstate

business in the City of Montgomery; that it had not

paid and refused to pay a license tax as required by

an ordinance of the City of Montgomery making it an

offense or misdemeanor to carry on such telegraph busi-

ness without having paid the required tax; the bill pray-

ed for an injunction restraining the defendant company

from doing business in violation of the ordinance and

for a decree against the Teelgraph Company for the

amount of the license tax together with the penalty.

This action was sought to be removed to the District

Court, and on motion made to remand the case to the

State Court, Judge Clayton, in granting the motion

and remanding the case to the State Court, says in part

as follows:

(3) If this is not a ‘suit of a civil nature,’

it is not removable, and therefore cannot be

subjected to the jurisdiction of the federal

court; and, in determining the nature of the

suit, the court must look to the subject-matter

of the litigation, and not to its form. In Ma-

loney vy. American Tobaceo Co. (CC) 72 Fed.

801, it was said:

‘A question here is whether or not the

present proceeding is a suit of a civil na-

ture. This court does not adjudicate upon

r

. the penalty was recovera

16

penal or criminal statutes of a state. The

purpose of this information is to enforce

against the American Tobacco Company the

prohibition from doing business in Illinois,

and the cause of action alleged is conduct

which, within the meaning of the statute, if

it have any meaning, is an offense or mis-

demeanor. The information does not show,

as the ground of the action, any contract

right in the state or any property right or

easement vested in the state, as trustee, rep-

resenting the public or otherwise. The ac-

tion is basd on a statute or rule of conduct

which the state, as a government agent, has

prescribed, and the violation of which on

the theory of the information is an offense or

misdemeanor. This is not, in its nature, a

suit to recover for, or stop the continuance

of an injury. It is the prosecution of an

offender against a criminal statute. * 7

So, here, the circumstance that an injuction

is the instrument, and apparently the only

instrument, of the state’s displeasure, does

not change the essential nature of the con-

duct complained of, or of the legal sanction

to which said conduct must be referred.’

In Arkansas v. St. Louis & S. F. Ry. Co.

(CC) 173 Fed. 572, the state law provided

that any operator of a railroad who committed

any violation of the law, for which no other

penalty was prescribed, should be fined not less

than $500 nor more than $3,000, and that

ble in the name of the

state. It was also provided that, where there

was a failure on the part of the shipper to give

routing instructions, it was the duty of the rail-

road receiving the shipment to forward it by

JINR EBON EN AEA POMBE YI DE TATA BRAT I HOON ANSON A TE

17

such route as would make the lowest freight

rate. The railroad company received a ship-

ment of lime at one point in the state, consigned

to another point in the state. No instruction

as to routing was given. The railroad made

the shipment over its own road to a point in

Oklahoma, and then by another railroad to the

poet of consignment in Arkansas. Suit was

led in the name of the state against the initial

railroad, alleging that the route over which the

shipment was made charged a freight rate of

23 cents per hundredweight, and that the ship-

ment should have been made over the line of

the initial carrier and a shorter connecting line

to the point of consignment; the original and

connecting lines being wholly in Arkansas. It

was alleged that this latter route was a reason-

able one, and that the cost of the shipment over

it would have been only 12 cents per hundred-

weight. The penalty was claimed, etc. On

the application of the railroad the case was re-

moved to the Federal Court. The state moved

to remand on the ground that the case was not

a ‘suit of a civil nature’ but was for the re-

covery of a penalty. The court, in granting

the motion, said:

‘The question presented and urged at the

hearing was that the suit is not of a civil

nature. The question therefore is: What

is the nature of the action provided by Sec-

tion 6813, Kirby’s Dig. Ark. After a most

careful and patient investigation of a wide

range of authorities, I have reached the con-

clusion that the action, while civil in form,

is in its nature criminal. The case, therefore,

must be remanded to the state court, solely

upon the principle decided in the case of

a ECAP RRM NE TUE AEE PMA ALY YD NOE, He TR RTS BOP WT RVR aD

18

Iowa v. Chicago, B. & Q. R. Co. (CC) 37

Fed. 497, 3 L. P. A. 554, and which case

seems to have been acquiesced in and is in

harmony with various cases, among others,

Maloney v. American Tob. Co. (CC) 72

Fed. 807; State of Indiana v. Allegheny Oil

Co. (CC) 85 Fed. 870; Ferguson v. Poss

(CC) 38 Fed. 161, 3 L. R. A. 322; State v.

Day Land & C. Co. (CC) 41 Fed. 228.’

‘Suit of a civil nature’ means a suit for the

remedy of a private wrong. Words and

Phrases, Vol. A p. 6779; Koch v. Vander-

hof, 49 N. J. Law, 619, 9 Atl. 771.

In Ferguson v. Ross (CC), 38 Fed. 161,

L. R. A. 322, the defendant sued in his offi-

cial capacity to recover certain penalties, and

the court held that the proceeding was of a

‘penal and not civil nature,’ within the mean-

ing of the removal act.

In the case of State of Texas vs. Day Land

& C. Co. (CC), 41 Fed. 228, 230, it was said:

‘The test whether a suit at law or in equity

is a suit of a civil nature, or of a criminal

nature, is the nature of the right asserted and

at issue. Ames vs. Kansas, 111 U. S. 460,

4 Sup. Ct. 437 (28 L. Ed. 482). See also

Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524

(29 L. Ed. 746) ; Coffey v. U. S., 116 U. S.

436, 6 Sup. Ct. 437 (29 L. Ed. 684). It is

not the form, but the nature, of the action

that determines the question of removal.’

And in Huntington v. Attrill, 146 U. S. 657,

13 Sup. Ct. 224, 36 L. Ed., 1123, the court

said:

‘The test whether a law is penal, in the

strict and primary sense, ts whether the

wrong sought to be redressed is a wrong to

MN Eg ala ih nf fal ib een al ar i a ae a iat a RA Oh AGREE INEM TAY:

19

the public or a wrong to the individual, ac-

cording to the familiar classification of Black-

stone: “Wrongs are divisible into two sorts

of species: Private wrongs and public wrongs.

The former are an infringement or privation

of the private or civil rights belonging to in-

dividuids considered as individuals, and are

thereupon frequently termed civil injuries ;

the latter are a breach and violation of pub-

lic rights and duties, which affect the ahas

repre f considered as a community.’ ”’

A Federal court will not treat as removable,

and therefore will not take jurisdiction of a

suit brought in state court to enforce a crimi-

nal or quasi criminal state statute, or of a suit

brought to recover a penalty under such state

statute.

In Iowa v. Chicago, B. & Q. R. Co. (CC)

37 Fed. 497, 503, 3 L. R. A. 554, the court

said:

‘* * * An action to enforce a penalty,

whatever may be its form, is one of a crim-

inal nature. As such, within the Removal

Act, it is not a removal case.’

And again in Iowa v. Chicago B. & Q. Ry.

Co., supra, the court said:

‘And now it becomes necessary to notice

the last utterance of the Supreme Court, in

the case of Wisconsin v. Insurance Co., 127

U. S. 265, 8 Sup. Ct. 1370 (32 L. Ed. 239).

That case was this: The State of Wisconsin

brought an action in one of her own courts

against the defendant to recover a penalty

prescribed by the statutes for a transaction

of insurance business in the state without a

license. The action was a civil action in form,

to-wit: an action of debt. The statutes pro-

20

vided that one-half of the penalty should go

to the state, and one-half to the insurance de-

partment, to cover expenses, etc. Judgment

was recovered in that action for the amount

of the penalty. The defendant was a citizen

of the state of Louisiana. Thereupon the

state of Wisconsin brought an original action

in the Supreme Court of the United States

against the defendant, a citizen of another

state, on that judgment. It will be seen that

that action is somewhat removed from this,

in that, not being an original action to recover

a penalty, it was to recover on a judgment in

a civil action for a penalty. By the constitu-

tion of the United States the Supreme Court

has original jurisdiction of controversies be-

tween a state and a citizen of another state.

Yet, notwithstanding this general jurisdic-

tion of the Supreme Court it held that it

had no jurisdiction of this action. Several

lines of argument were followed by the

court in reaching its conclusion. It held that

that grant of jurisdiction was of judicial

power, and was not intended to confer upon

the courts of the United States jurisdiction of

a suit on prosecution by the one state of

such a nature that it could not, on the settled

principle of public and international law, be

entertained by the judiciary of another state

at all; that the enforcement of the criminal

laws of a state was by such principles limited

exclusively to the courts of the state whose

laws were charged to have been violated; and

that the form of the action prescribed was

immaterial—courts looking ever to the sub-

stance, nature and purpose of the action; and

that is the case at bar, although the form of

action was civil, being an action of debt *

SALT RAE ENS FES TRAE LEAMA AMOR LPS NE :

Oe SEER

RESET aa ee ad

21

* * fora penalty, it was in substance of a

criminal nature, and an effort upon the part

of the state to enforce its criminal laws.’

In Barron vy. City of Anniston, 157 Ala. 399,

402, 48 South, 58, 59, it was held that a pro-

ceeding for the recovery of fines and penalties,

imposed by a city orlinance are quasi criminal

and are governed by the same rules of proce-

dure and evidence which control in criminal

cases. And there the court said:

* * * Proceedings for the recovery

of fines and penalties are quasi criminal,

and should be conducted with greater regard

to strictness than attaches to pleadings in

civil cases.’"” * * * Again, this court has

said that proceedings for the violation of

city ordinances are in no sense “civil causes,”

but are “punitive regulations,” and the ob-

ject of a proceeding for the violation of them

is not the redress for a civil injury, but the

punishment of an offender against the peace

and good order of society. Hence they are

termed “quasi criminal proceedings.”

In the present case the city ordinance is to be

treated as a state statute, and the rule stated

in Iowa v. Chicago, B. & Q. R. Co., supra, is

to govern in the consideration of the motion

to remand. In Davis & F. Mnfg. Co. v. Los

Angeles, 189 U. S. 207, 23 Cup. Ct. 489, 47 L.

Ed. 778, municipal ordinances were assailed

on the ground that they were unconstitutional

and the court held that:

The state having delegated certain powers

to the city, the ordinances of the municipal

authorities in this particular are the acts of

the state through one of its properly consti-

tuted instrumentalities, and their unconstitu-

tionality is the unconstitutionality of a state

22

law within the meaning of Section 5 of the

Circuit Court of Appeals Act (Act March

3rd, 1891, c. 517, 26 Stat. 827) Comp. St.,

1913, 1215. City Railway v. Citizens’ R. R.

Co., 166 U. S. $57 (17 Sup. Ct. 653, 41 L.

Ed. 1114); Penn Mutual Lite Ins. Co., v.

Austin, 168 U. S. 685, 694 (18 Sup. Ct.,

223, 42 L. Ed. 626) ; St. Paul Gaslight Co.

v. St. Paul, 181 U.S. 142, 148 (21 Sup. Ct.

575, 45 L. Ed. 788).”

Therefore the city ordinance must be treated

as the criminal statute of the state. The doing

of intra-state business by the defendant com-

pany, without having first taken out the li-

cense required by the ordinance is an offense

or mis-demeanor, and the continued violation

of the ordinance, according to the theory of

the bill is a public nuisance, which is sought to

be abated by permanent injunction. The bill

is a means adopted by the city for the enforce-

ment of its penal ordinance. The state court

is a court of competent jurisdiction, and doubt-

less will properly adjudicate this controversy.

However that may be, a removable cause is not

presented to this court.

It was suggested, during the argument, that

the bill filed in the city court is without equity,

because there is an adequate remedy at law—

an action for the amount of the license tax—

and, again, that the prayer of the bill to re-

strain the Telegraph Company from further

carrying on its intrastate business is inconsis-

tent with the prayer for the recovery of the

amount of the license tax, the payment of

wihch, it is insisted, would authorize the doing

of intrastate business by the Telegraph Com-

pany. But these suggestions go to the equity

of the bill, and, if sound, can be made ayail-

Bork Ren i daa ea ee Aaa CY SS ally RCA Oia DN —

23

able as defense in the city court. On motion to

remand, the federal court will not inquire into

the sufficiency of the plaintiff's pleadings. Smith

: Camas Prairie Ry. Co. (D. C.) 216 Fed.

99.

From what has been said, it follows that

this suit must be remanded to the city court of

Montgomery, and, inasmuch as the original

case has been remanded, the application for the

injunction, prayed for in the ancillary bill, must

be denied.

Order and decree will be entered accordingly.”

NO “DIVERSITY OF CITIZENSHIP”

Third: (a) There is no “diversity of citizen-

ship” within the meaning of the removal statutes,

inasmuch as the original action in the Court of Com-

mon Pleas was brought by the “State of Ohio” as

plaintiff and a state is not a “citizen” within the mean-

ing of the removal act.

In the case of Upshur County v. Rich, 135 U. S.

467, which was an action to recover an assessment on a

tract of land situated in Upshur County, in the state of

West Virginia, owned by the defendants who were

non-residents, which action was sought to be removed

to the District Court by the defendants, and the ob-

jection to the remova! was based on two grounds: first,

that the case was not a suit within the meaning of the

removal act; and second, that if it were such a suit

within the meaning of the removal act, that the state

re TERE ENB EINER EEN SERRA ERO AREAL LV RN a

24

of West Virginia was a necessary party to the suit, and

that therefore there was no diversity of citizenship

because of the fact that a state could not be construed

as “‘a citizen” within the meaning of the removal act;

Mr. Justice Bradley, in the course of the opinion on

page 470, says in respect to diversity of citizenship, as

folows:

“Tt must be ‘a suit’ between citizens of dif-

ferent states. Is this such a suit? We do not see

how it can be called such. The original peti-

tion made the State of West Virginia and the

county of Upshur parties defendant; and the

petition of removal alleged that the state and

county were necessary parties to the contro-

versy. If, therefore, the proceeding could be

called a suit at all, it was a suit against the state

as well as the county, and such a suit is not

within the category of removal cases. A state

is not a citizen, if a county is.”

In the case of Postal Telegraph Cable Co. v.

Alabama, 155 U. S., page 482, which was an action

brought in the Circuit Court of Montgomery County,

Alabama, by the State of Alabama against the Postal

Telegraph Cable Company organized under the laws

of New York, to recover taxes and penalties claimed

due the State of Alabama under a state statute, the first

paragraph of the syllabus is as follows :

“Under the Judiciary Acts of the United

States, a suit taken between a state and a citizen

or corporation of another state is not a suit be-

tween citizens of different states; and the Cir-

prey ta rea meena

Sey ee Cee eee

25

cuit Court of the United States has no juris-

diction of it, unless it arises under the consti-

tution, laws or treaties of the United States.”

Mr. Justice Gray, in supporting the syllabus, in

the course of his opinion, on page 487, says as fol-

lows:

“A state is not a citizen. And, under the

Judiciary Acts of the United States, it is well

settled that a suit between a state and a citizen

or a corporation of another state is not between

citizens of different states; and that the Circuit

Court of the United States has no jurisdiction

of it, unless it arises under the constitution,

laws or treaties of the United States. Ames v.

Kansas, 111 U. S., 449; Stone v. South Car-

olina, 117 U. S., 430; Germania Ins. Co. v.

Wisconsin, 119 U. S., 473.”

In the case of Arkansas v. Kansas and Texas

Coal Co., supra, Chief Justice Fuller, on page 188 of

the opinion, says with respect to diversity of citizenship

where a state is a party, as follows:

“We need not spend any time on the con-

tention that this was a controversy between

citizens of different states. The Circuit Court

correctly held otherwise. The state of Arkan-

sas was the party complainant, and a state is

not a citizen. Postal Telegraph Cable Co.., v.

Alabama, 155 U. S., 482.”

SRE SELINA SIE BRE EE AE EE

26

THE STATE THE REAL PARTY PLAINTIFF

(b) The fact that the action was styled, “The

State of Ohio on the relation of Allen J. Seney, Prose-

cuting Attorney of Lucas County, Ohio,” did not

change the nature of the action, and the further fact

that the petition for removal ignored the State of

Ohio as plaintiff and alleged that Allen J. Seney as

such Prosecuting Attorney was a citizen of the State

of Ohio, and that Swift and Company was a citizen

of the State of Illinois, and therefore that the con-

troversy was between citizens of different states,—

does not change the fact that the action was brought

by “The State of Ohio,” who was the real party in.

interest, seeking to enforce on behalf of its people

the police powers of the state by prohibiting and pre-

venting an infraction of the criminal laws ‘of the

State of Ohio. If the State of Ohio was not the real

party in interest and the plaintiff then this action fails

for want of parties.

This action if it can be maintained at all is by

authority of Section 6400 hereinbefore quoted and

Section 2916 of the General Code of Ohio, which is

as folows:

“Sec. 2916. The prosecuting attorney shall

have power to inquire into the commission of

crimes within the county and except when oth-

erwise provided by law shall prosecute on be-

half of the state all complaints, suits, and con-

Prrsranesencre ngeesceiss EPFL SLE ILE EI ET AE REIS IN OS SRR IT

Ree Pree: : oF ae

27

troversies in which the.state is a party, and such

other suits, matters and controversies as he is

directed by law to prosecute within or without

the county, in the Probate Court, Common

Pleas Court and Court of Appeals. In con-

junction with the attorney general, he shall also

prosecute cases in the Supreme Court arising

in his county. * * *.”

In the case‘of Arkansas v. Kansas and Texas Coal

Company, supra, which, as we have already called at-

tention, was an action in equity, brought by the State

of Arkansas on the relation of Joe Johnson, Prosecu-

ting Attorney for the 12th Judicial District, against

The Kansas & Texas Coal Company and the St. Louis

and San Francisco Ry. Co., seeking to restrain the de-

fendants from importing a large number of armed men

into a community where there was a high state of ex-

citement owing to a strike by some miners; a prelimin-

ary injunction was granted the State of Arkansas

against said defendants; defendants filed their peti-

tion and bond for removal and made application there-

for, which was denied by the court of Sebastion

County, whereupon the defendants filed in the United

States Circuit Court for the Western District of Ar-

kansas a certified transcript of the record and plead-

ings and papers in the case. The petition for removal

averred (as does the petition for removal in this case )

that Joe Johnson, the prosecuting attorney, was a citi-

zen of Arkansas, that the defendants were citizens of

28

Missouri, and that the controversy in the suit was

wholly between citizens of different states, and one

arising under the Constitution and laws of the United

States, because defendants were engaged in interstate

commerce, and the action was an unlawful interference

therewith, by reason of the commerce clause of the

Federal Constitution and the laws passed pursuant

thereto. A motion to remand the case was overruled

and the bill was dismissed and appeal prosecuted to

the Supreme Court of the United States. Chief Jus-

tice Fuller, in delivering the opinion of the court, says

as follows:

“The gravamen of the bill was the injury to

the health, morals, peace and good order of

the people of the town and county, the infliction

of which was alleged to be threatened by the

bringing within their precincts of certain per-

sons by defendants. Ko statute of the state

was referred to as applicable, but the enforce-

ment of the police power was sought through

the interposition of a court of equity by way of

prevention of an impending public nuisance.

The Circuit Court was of opinion that the bill

could not be maintained, but, without intimat-

ing any conclusion to the contrary, or criticising

its formal sufficiency, the question that meets us

on the threshold is whether the case ought to

have been remanded to the state court.

We need not spend any time on the conten-

tion that this was a controversy between citi-

zens of different states. The Circuit Court

correctly held otherwise. The State of Arkan-

sas was the party complainant, and a State is

ee ee

SRL ELIE NE RELL BEET EYL EEL EE PENA LOL OTE

= SMES BEES

PREFS LE PLE BRT STEINER tI PE SO A ER mare a

29

not a citizen. Postal Telegraph-Cable Co.

v. Alabama, 155 U. S., 482.

We inquire, then, if the cause was remov-

able because arising under the constitution or

laws of the United States.

The general policy of the act of March 3,

1887, as corrected by the act of August 13,

1888, (24 Stat. 552, c. 373; 25 Stat. 433, c¢.

866), as is apparent on its face, and as has

been repeatedly recognized by this court, was to

contract the jurisdiction of the Circuit Courts.

Those cases, and those only, were made remov-

able under Section two, in respect of which orig-

inal jurisdiction was given to the Circuit Courts

by Section one. Hence it has been settled that

a case cannot be removed from a state court

into the Circuit Court of the United States on

the sole ground that it is one arising under the

constitution, laws or treaties.of the United

States, unless that appears by plaintiff’s state-

ment of his own claim; and if it does not so

appear, the want of it cannot be supplied by

any statement of the petition for removal or

in the subsequent pleadings. And moreover

that jurisdiction is not conferred by allegations

that defendant intends to assert a defense based

on the constitution or a law or treaty of the

United States or under statutes of the United

States or of a state, in conflict with the con-

stitution. Tennessee v. Union and Planters’

Bank, 152 U. S., 454; Chappell v. Water-

worth, 155 U.S., 102; Walter v. Collins, 167

U. S., 57; Sawyer v. Kockersperger, 170 U. S.,

303; Florida Central & Peninsuia Railroad v.

Bell, 176 U. S. 321.

In this case the state asserted no right under

the constitution or laws of the United States,

30

and put forward no ground of relief derived

from either. There were no averments on

which the state could have invoked the original

jurisdiction of the Circuit Court under section

one of the act, and that is the test of the right

of removal under section two.

The police power was appealed to, the pow-

er to protect life, liberty and property, to con-

serve the public health and good order, which

always belonged to the states, and was not

surrendered to the general government, or

directly restrained by the constitution. The

fourteenth amendment, in forbidding a state to

make or enforce any law abridging the privil-

eges or immunities of citizens of the United

States, or to deprive any person of life, liberty

or property without due process of law, or to

deny to any person within its jurisdiction the

equal protection of the laws, did not invest Con-

gress with power to legislate upon subjects

which are within the domain of state legisla-

tion. In re Rahrer, 140 U. S., 545, 554. It is

true that when the police power and the com-

mercial power come into collision, that which

is not supreme must give way to that which is

supreme. But how is such collision made to

appear?

efendants argue that the Circuit Court

might have properly taken judicial notice, or

did so, of the fact that the persons whose ad-

vent was objected to as perilous to the commun-

ity could only be brought to Huntington by way

of the Indian Territory, and also that the word

‘import’ as used in the bill meant to bring into

from another state or foreign country; that,

therefore, ‘the question is fairly presented by

the complaint whether the State of Arkansas

ESI LEED LE LIE PE OE oN a NOE argue

31

has the authority to prevent the coal company

and the railroad company from bringing into

the state over the line of this railroad, laborers

from other states or foreign countries;’ and

hence that the Circuit Court had jurisdiction.

We do not agree with either premise or con-

clusion.

The word ‘import’ necessarily meant bring-

ing into the county and town from outside their

boundaries, but we do not think, taking the

whole bill together, that as here used its neces-

sarily signification was the bringing in from

outside of the state.

And as to judicial knowledge, the principle

applies ‘that the right of a court to act upon

what is in point of fact known to it must be

sub-ordinate to those requirements of form and

orderly communication which regulate the mode

of bringing controversies inté court, and of

stating and conducting them.’ Thayer Ev. Ch.

VII, 281.

In Mountain View Mining & Milling Co., v.

McFadden, 180 U. S., 533, which was a peti-

tion for removal, the suit was one brought in

support of an adverse claim under the Revised

Statutes, Sections 2325, 2326, and it had been

previously decided that such a suit was not one

arising under the laws of the United States in

such a sense as to confer jurisdiction on the

Federal courts regardless of the citizenship of

the parties. And we said: ‘It is conceded by

counsel on both sides that those decisions, are

controlling, unless the Circuit Court was en-

titled to maintain jurisdiction by taking judicial

notice of the fact that the Mountain View lode

claim was located upon what had been or was

an Indian reservation,’ and ‘of the act of Con-

sy

32

gress declaring the north half of the reser-

vation, upon which the claim was located, to

have been restored to the public domain;’ not-

withstanding no claim based on these facts was

stated in the complaint. But the Circuit Court

could not make plaintiffs’ case other than they

made it by taking judicial notice of facts which

they did not choose to rely on in their pleading.

The averments brought no controversy in this

regard into court, in respect of which resort

might be had to judicial knowledge.’ Oregon

Short Line, etc. Railwe v. Skottowe, 162 U.

S. 490; Chappell v. Waterworth, 155 U.S.,

102; Commonwealth v. Wheeler, 162 Mass.,

429; Partridge v. Strange, Plowden, 77.

But even assuming that the bill showed upon

its fac. that the relief sought would be incon-

sistent with the power to regulate commerce, or

with regulations established by Congress or

with the Fourteenth Amendment, as contended,

it would only demonstrate that the bill could

not be maintained at all, arid not that the

cause of action arose under the constitution or

laws of the United States.

When Federal questions arise in cases pend-

ing in the state courts, those courts are com-

petent, and it is their duty, to decide them. If

errors supervene, the remedy by writ of error

is open to the party aggreived. Robb v. Con-

nolly, 111 U. S., 624, 637.”

On the question of The State of Ohio being the

real party in interest, we call the Court's attention to

the allegations of the petition in the State Court charge-

ing a violation of the Valentine Anti-Trust Law and

the Smith Cold Storage Law, the prayer for injunction

33

against removing the pork, the prayer for injunction

restraining further violations of these laws, and ask,

Was Allen J. Seney, Prosecuting Attorney, reaping

any benefit for himself or was The State of Ohio seek-

ing to enforce the police powers of the State, as was

held by the Supreme Court of the United States in the

case of Arkansas v. Kansas & Texas Coal Co., supra?

An examination of the cases cited by Judge Killits on

this question in his opinion will disclose that the State,

who it was claimed was the real party in interest, was

not even a nominal party to the action and that the re-

lief sought in none of these cases was the enforcement

of the police powers or criminal laws of the state;

whereas in the case of Arkansas v. Kansas & Texas

Coal Co., as in the case at bar, the State on relation

of the Prosecuting Attorney was seeking to enforce in

a court of equity the police powers of the State, and

this Court held that the State was the real party in

interest.

The Supreme Court of Ohio in the case of Ohio

ex rel Schlessinger Prosecuting Attorney vs. Columbus

Packing Company, advised of the fact that the pork

involved in that case was held in storage more than

six months longer than allowed by the Smith Cold

Storage Law of Ohio, held that fact alone to be con-

vincing proof in and of itself of the violation of the

Valentine Act in the following language used by

EI ELI RAE ELTA ENE LOY IAT

34

Judge Nichols, in the course of the Opinion, 100

O. S. 285, at page 286:

By the terms of the Cold Storage Act it is

made unlawful to sell or offer for sale certain

food products therein named held in storage

for a period of longer than six months. By

the terms of the Valentine Anti-Trust Act it is

made unlawful to create or carry out restric-

tions in trade or commerce. It is further made

unlawful to prevent competition in the sale or

purchase of a commodity * * * *. Itis claimed

that the storage of a food commodity for so

long a period as to render it unsalable in Ohio

by the owner is per se an act in restraint of

trade, and that such storage acts as a preven-

tative of competition.

“The vital and controlling issues of fact in

the case centers around the duration of time

the pork in question had remained in cold stor-

age prior to the institution of the suit.

“The defendant storage company expressly

admits that the goods had been stored in its

warehouse for the period of time set forth in

the petition. * * * *. Further along in the

answer the packing company did, however, ad-

mit in substance the allegations in respect to

the alleged unlawful storage. * * * *

“The fact of storage in excess of six months

having been established, the question remains,

does the admitted conduct of the parties defen-

dant constitute a violation of the Cold Stor-

age Act and the Anti-Trust Act, either or both.

x * * *

“While there is no express provision in the

act making it unlawful to store food for a pe-

riod longer than six months there is an unmis-

takable declaration of public ‘policy that in

SL CHARA BRE TTA END WAAR OOS ENE ANNE cae

Wives wre RAIL EOI A TY RING NOIRE SE eae eat Re Nae amie nea

35

Ohio pork products ought not ve stored for a

period greater than six months, and it, there-

fore, becomes the manifest duty of the courts

to prevent such practices if in their power so

to do. * she

“The acts of the parties defendant in re-

pect to the food in question constitute conduct

in restriction of trade and have a patent ten-

dency to increase the price of the commodity.

It also removes competition in the sale and pur-

chase of merchandise.

“The certain effect of the conduct of the

parties in the case at bar was to create an arti-

ficial shortage in pork products. To retain food

in storage, and to withhold it from the chan-

nels of trade for so long a time that the food,

so far as the markets of Ohio are concerned,

was, if left in the hands of the owner as effec-

tually destroyed, as if it had been annihilated in

a conflagration, is unexplainable, except on the

theory of a form of conspiracy to cause simi-

lar food products to realize a higher scale of

value. * * *

“No legitimate purpose can be ascribed to

the owners of the property in knowingly con-

tributing to the destruction of the commercial

value of their own product The necessary

conclusion is that the object of the parties was

to maintain as to similar products a very satis-

factory if not over-profitable market or what

is more probable to cause a still further in-

crease in the selling value thereof.

“The case was presented to the court that

the defendant companies had dealt with the

pork in a manner prohibited by taw. Their ad-

mitted conduct was such as to justify a court of

equity in finding that their purpose was to hold

36

it beyond the period allowed by law and for the

purposes which the law prohibits.

“The state statute fixes the maximum stor-

age period at six months. But it must be noted

that the question under consideration is, wheth-

er the conduct of the parties in this case is such

as to demonstrate that the purpose of the par-

ties in withholding the commodity from the

market was to accomplish the purposes or any

of them which are prohibited by the Anti-

Trust law of Ohio. As has been heretofore

said in the course of this opinion the cold stor-

age act merely prescribes a ce:tain course of

conduct to be complied with, and the violation

of its provisions furnishes the convincing evi-

dence of the illegal purpose to which refer-

ence has been made.”

Columbus Packing Co. v. Ohio ex rel Sless-

inger Pros. Atty., 100 O. S., 285.

This Court on October 20, 1919, refused to re-

view the case last cited.

The Smith law only prohibits the sale by those

who have stored the meat in violation of this law, and

as the Supreme Court of Ohio well said: it neither pre-

vents nor prohibits the Court or a Receiver in an ac-

tion by the State under the direction of the Court from

selling for food the property seized. The statute does

not declare the meat unfit for food. It is a statute

directed against hoarding foods, under the police pow-

ers of the State, and in an action wherein these police

powers are sought to be invoked to prevent such hoard-

ing, certainly it cannot be claimed, as the Supreme

ARES NY Ree EE OS eR

37

Court of Ohio well said, that the court, or a receiver

under the direction of the Court in an action by the

State could not sell the food for the benefit of the

public.

(c) Under the removal statute other actions:

which can be removed to a Federal Court are those

arising and founded on the Constitution, laws or

treaties of the United States. In determining the

question of whether or not the action arises under the

Constitution, laws or treaties of the United States,

reference must be had solely and alone to the peti-

tion filed by the plaintiff in the action sought to be

removed. We submit a reference to the petition filed

by the State of Ohio in the Court of Common Pleas

against Swift and Company and The Northern Re-

frigerating Company, discloses that the action arises

and is based solely upon the violation of the statutes

of the State of Ohio, and it does not in any way, shape

or form arise or depend upon any law, treaty or the

Constitution of the United States.

In the case of Postal Telegraph Cable Co. v.

Alabama, supra, the Court on page 487, say in part as

follows:

“It is equally well settled that under the pro-

visions above referred to, of the existing act

of Congress, no suit can be removed by a de-

fendant from a state court into the Circuit

38

Court of the United States, as one arising un-

der the Constitution, laws or treaties oF the

United States, unless the fact that it so arises

appears by the plaintiff's statement of his own

claim; and that a deficiency in his statement, in

this respect, can not be supplied by allegations

in the petition for removal, or in subsequent

pleadings in the case. Tennessee v. Bank of

Commerce, 152 U. S. 454; Chappell v. Water-

worth, ante. 102.”

In the case of Re Winn, supra, the second and

third paragraphs of the syllabus, are as follows:

“A suit only arises under the Constitution

and laws of the United States within the mean-

ing of par. 1 of the act of August 13, 1888, c.

866, 25 Stat. 433, conferring jurisdiction on the

Circuit Court when the plaintiff's statement of

his own cause of action shows that it is based

on those laws or that Constitution, and

it is not enough that defendant may base his

defense thereon. Louisville & Nashville Rail-

road v. Mottley, 211 U.S. 149.”

“Although a defendant in the state court

may set up a defense based on Federal rights

which will, if denied, entitle him ultimately

to have the decision reviewed by this court, if

the Federal question does not appear in the

plaintiff's statement the case is not removable

to the Circuit Court of the United States.”

See also

State of Arkansas v. Kansas and Texas

Coal Co. and San Francisco Rail-

road, 182 U.S. 185.

PERT E LTE POETS CD FEAT EPL BOT

39

NO DENIAL OF EQUAL PROTECTION OF LAW

Fourth. On the face of the record, including

the petition for removal, it does not appear as a fact

that Swift & Company have been or will be denied

the “equal protection of the laws of the United States.”

All that appears in the record is the averment of the

petition for removal,—that said statutes have been con-

strued and held “by certain courts of the State of Ohio”

to relate to and cover property whether in or the sub-

ject matter of interstate commerce; and that “certain

courts” of Ohio have construed said statutes and other

laws of Ohio so as to authorize and permit the seizure

of property without due process of law.

We submit the statutes providing for removal on

the ground that a defendant is being denied “the equal

- protection of the law”’ has reference to a constitutional

or legislative denial of equal rights, or an inability to

enforce them resulting therefrom, and not to any de-

nial or inability to enforce resulting from the action

of the judiciary.

The provisions of the removal statutes are not as

broad as the guarantees of the Fourteenth Amendment

of the United States Constitution, and, where equal

rights are denied a defendant by the judiciary, and that

can only be asserted when the rights are actually de-

“nied, and can only be determined on and during the

trial of the cause, must be remedied by error proceed-

Bitane en emeie BERLE ENE ENE LES BEE OG LE OIO RES LOOSING GA eI a

40

ings to the United States Courts and not by removal in

anticipation that because “certain courts” have denied

such rights in another case defendant “will be denied”

its rights upon the trial of its case.

In the case of Virginia v. Rives, 100 U. S., page

313, the fourth paragraph of the syllabus is as follows:

“But the Fourteenth Amendment is broader

than Section 641, as the latter does not apply

to all cases in which the equal protection of the

laws may be denied to a defendant. The re-

moval thereby authorized is before trial or

final hearing. But the violation of the consti-

tutional prohibitions, when committed bv the

judici:.1 action of a State, may be, and generally

will be, after the trial or final hearing has com-

menced. It is during the trial or final hearing

the defendant is denied equality of legal pro-

tection, and not until then. Nor can he know

until then that the equal protection of the laws

will not be extended to him. Certainly not un-

til then can he affirm that it is denied. To such

a case—that is, to judicial infractions of the

constitutional amendment after the trial has

commenced—Section 641 has no applicability.

It was not intended to reach such cases. They

were left to the revisory power of this court.”

The syllabus is borne out on pages 318 and 319

of the Opinion, where a careful analysis of the rights

of removal in this class of cases is made.

In the case of Scott v. Kinney, 137 Fed. Rep., page

1009, where the petitioner asks for removal of the

case because of her inability to secure an attorney, or

41

because the plaintiff had been able to secure postpone-

ment of the trial against defendant's protests, the

prayer for removal was denied. A discussion of the

right to remove cases under this heading is found in

the opinion on page 1011, as follows:

“There is no allegation that there is any law

of the State of Pennsylvania, or rule of court

of the city of Philadelphia, which discriminates

against the defendants. If the defendants have

been unable to bring their case to trial in the

state court, it is because of their failure to se-

cure an attorney for that purpose, or on ac-

count of the action or non-action of the courts,

and not from any command or authority of the

state, or any provision of the laws of the state.

For such wrongs, in the language of the Su-

reme Court, section 641 has no application.

t was not intended to reach such cases. It left

them to the revisory power of the higher courts

of the state, and ultimately to the review by

the supreme judicial tribunal of the land. Vir-

ginia v. Rives, 100 U. S. 319, 25 L. Ed. 667.

The denial or inability to enforce in the judi-

cial tribunals of the states rights secured by any

law providing for the equal civil rights of citi-

zens of the United States, to which section 641

refers and on acount of which a civil suit or

state court, is primarily, if not exclusively, a

criminal prosecution may be removed from a

denial of such rights, or an inability to enforce

them, resulting from the Constitution or laws

of the state, rather than a denial first made

manifest at or during the trial of the case. Gib-

son v. Mississippi, 162 U. S. 565, 16 Sup. Ct.

; 904, 40 L. Ed. 1075.

42

It is only when some state law, ordinance,

regulation, or custom hostile to these rights is

alleged to exist that a removal can be had un-

der the first clause of this section. In re Wells,

Fed. Cas. No. 17,386. It was intended to pro-

tect against state action, and against that alone.

In other words, the statute has reference to a

constitutional or legislative denial of equal

rights, or an inability to enforce them resulting

therefrom, and not to any denial or inability to

enforce resulting from the action of the judi-

ciary. Virginia v. Rives, 100 U. S. 339, 25 L.

Ed. 676. And it refers to legal disabilities and

legal impediments, and not to private infringe-

ments by prejudice or otherwise, when the laws

themselves are impartial and sufficient. Strau-

der v. West Virginia, 100 U. S. 303, 25 L. Ed.

664; LeGrand v. U. S. (CC) 12 Fed. 577,

note 583.

Thus it will be seen that the Supreme Court

has held that removals under section 641 can

only be had when the party complaining cannot

enforce rights secured to him by the law pro-

viding for equal civil rights of the citizens of

the United States in a judicial tribunal of the

state by reason of some enactment or constitu-

tional provision of the state, and the allega-

tions in this petition fail to show or even sug-

gest such a case.”

In the case of Commonwealth of Kentucky v.

Powers, 201 U.S., page 1, the Supreme Court of the

United States reviews all of the prior cases of remov-

al under Section 641 of the Revised Statutes of the

United States, and affirms the cases above cited.

In this case the defendant contended that the

Rg RRS SET eT EY ORT Ont

43

Court of Appeals of Kentucky had refused to recog-

nize a pardon granted him as having any legal effect,

and they had thereby denied him the equal civil rights

and protection of the laws secured him by the pro-

visions of the Constitution and laws of the United

States, and that he was denied and could not enforce

in any judicial tribunal of Kentucky the rights which the

pardon gave him.

The Supreme Court, on page 40 of the opinion,

say as follows:

“Manifestly, in view of what has already

been said this question as to the pardon of the

accused, does not make a case of removal on

the ground of the denial or inability to enforce

in the judicial tribunals of Kentucky of a right

secured to the accused ‘by any law providing

for the equal civil rights of citizens of the Uni-

ted States’ or of all persons within the juris-

diction of the United States. Whether the

non-recognition by the courts of the state ot

the validity of the alleged pardon involved a

denial of any right secured to the accused by

any other law or by the Constitution of the

United States, we need not now consider. As

the Circuit Court could not, in virtue of Sec-

tion 641, take cognizance of this prosecution

on removal, we cannot properly pass upon the

merits of any question of Federal right which

might arise in the case It is sufficient to say

that if the accused, by reason of the Taylor

pardon, acquired any right under the Constitu-

tion or laws of the United States, and if at the

next trial of his case that right, having been

specially set up and claimed, should be denied

44

by the highest court of the State in which a de-

cision of that question could be had, such action

of that Court, in respect of that pardon, can be

reviewed here upon writ of error. We do not

perceive that any question arising out of the

pardon could make a case under Section 641

for the removal of the prosecution from the

state court.”

We in this same connection call your Honors’ at-

tention to the fact that this same claim was asserted in

another action of the same nature. We refer to the

case of State of Ohio vs. Columbus Packing Company

in which case this Court on October 20th, 1919, de-

nied the right to file a petition in error.

DEFENSE CLAIMED THAT PROPERTY IS SUB-

JECT OF INTERSTATE COMMERCE. DOES

NOT CONFER JURISDICTION ON FEDERAL

COURT.

Fifth. We have disposed of all the questions up-

on which the appellees sought to remove said cause to

the Federal District Court, with the exception of the

alleged interference with property, the subject of inter-

state commerce.

We submit the question of the interstate character

of this property has no bearing on the removability of

this cause, nor does the fact that the property involved

in litigation in the State Court may have an inter-

state character, affect the jurisdiction of the state court

a .

SPIRE UO OES et ee eee —

45

to hear and determine the rights of the parties with re-

spect thereto, so long as the relief sought is not based

on the interstate character of the property or any

federal statute relating to or governing property, the

subject to interstate commerce.

In the case of Arkansas v. Kansas & Texas Coal

Co., supra, the Court says on page 190 of the opinion

as follows:

“But even assuming that the bill showed up-

on its face that the relief sought would be in-

consistent with the power to regulate com-

merce, or with regulations established by Con-

gress, or with the Fourteenth Amendment, as

contended, it would only demonstrate that the

bill could not be maintained at all and not that

the cause of action arose under the Constitu-

tion or laws of the United States.”

- In the case of Re Winn, supra, the third para-

graph of the syllabus is as follows:

“Although a defendant in the state court

may set up a defense based on Federal rights

which will, if denied, entitle him ultimately to

have the decision reviewed by this court, if the

Federal. question does not appear in the plain-

tiff’s statement the case is not removable to the

Circuit Court of the United States.”

and on page 465 the Court say, in part, as follows:

“Tested by these principles, the record, in

cluding the petition for removal, shows afirma-

tively that the case was not one arising under

the laws of the United States. In substance,

46

the allegations of the petition for removal are,

that the defendant was subject to the Federal

laws to regulate commerce, and that under

those laws the defendant had a defense in

whole or in part to the cause of action stated in

the declaration. But the cause of action itself

is not based upon the interstate commerce law

or upon any other law of the United States.

The case could not have been brought origin-

ally in the Circuit Court of the United States,

and was therefore not removable thereto. In

holding otherwise we think the learned Judge

of the Circuit Court erred.”

From an inspection of the petition filed in the

Common Pleas Court, it will be seen no reference is

made to the interstate character of the property, and

it is not disputed that the State of Ohio is basing its

action on the statutes of the State of Ohio, and not

attempting to invoke any Federal law relating to inter-

state commerce. Nor can jurisdiction of such a cause

be conferred on the Federal Court by allegations that

defendant intends to assert a defense based on the

Constitution or a law or a treaty of the United

States or under statutes of the United States.

In the filed opinion of the Court below, at the

top of page 9, the learned Judge says:

“So far as we see (the point has not been

argued), the jurisdiction of the Court below to

decide in that case (the suit brought by Swift

& Company to enjoin Allen J. Seney from pros-

ecuting the case at bar) this vital question of

PENIS TRS LEY AGA PI END seamen eee

47

constitutionality is unassailable and it would be

a matter of little importance to anyone to or-

der remand of this case to the State Court and

yet to leave the jurisdiction of the Court below

over the same controversy in the companion

equity case unimpaired.”

We respectfully submit that the injunction case re-

ferred to is simply ancillary to the case at bar and if

the Federal District Court had no jurisdiction to enter-

tain this action it then had no jurisdiction to entertain

the injunction suit referred to, and that the questions

of the constitutionality of the so-called Valentine Act

and the Smith Cold Storage Act and the existance “of

a federal question through a claim of unconstitution-

ality” are not properly before this court and do not

require adjudication in passing upon the errors com-

~ plained of in the petition presented in this Court. So

far as we know, the Valentine Law and the Smith Cold

Storage Law are valid enactments and until these laws

are challenged in a proper proceeding in a proper tri-

bunal their constitutionality cannot be questioned and

it is our opinion that the Federal Court should not in-

terfere by attempting to entertain jurisdiction as upon

removal. Swift & Company had no right to challenge

in the Federal Courts, by invoking the Fourteenth

Amendment, the laws upon which this action was predi-

cated and to all intents and purposes the laws of Ohio

(meaning the statutes and decisions of the Supreme

ELIOT LNT OLS I OO EGR PE NE AIA TD HORTON PHASE RN ee geet

48

Court of Ohio) designating the party plaintiff must

prevail as the law of the land. ;

The Court below seems to have been confused by

the decision of the Supreme Court of Ohio in the Col-

umbus case. The Supreme Court of Ohio in that case

said that the action was well brought and the relief

asked for was granted. The instant case is “on all

fours” with that case. “The constitutionality of the

state law is (not) at stake in this case, although the

Court below in its confusion seems not to recognize the

difference between a constitutional or legislative denial

of equal rights and a judicial interpretation thereof.

The real question presented here is, Who is the party

plaintiff? The Court below seems to point out that

the Supreme Court of Ohio has said that the State of

Ohio is that plaintiff, “but its conclusion rests on the

premises that the law is valid.” That is quite true and

the validity of that law or laws cannot be challenged

in the Federal Court in this action.

The opinion of the Circuit Court of Appeals is

sophistical and, it must be confessed, most difficult to

digest—let alone understand or answer, yet we firmly

believe that The State of Ohio can enforce its own

laws without the aid of the Federal judiciary except in

those cases in which the Constitution of the United

States is involved.

We submit the District Court never at any time

49

had jurisdiction of this case, and never had a right to

assume jurisdiction thereof; that the motion to remand

should have been granted, as the authorities already

cited demonstrate, and any further assumed or at-

tempted jurisdiction of said District Court was un-

warranted, and any and all orders made by said Court

after overruling said motion to remand, are null, void

and of no effect whatsoever.

It is disclosed by the record that, by the order of

the Court below, a bond in the sum of $100,000.00 has

been voluntarily given by Swift & Company to secure

The State of Ohio in liquidated damages if it is finally

determined there has been a violation of its penal

statutes. Said Court recognizes that its “decision

is subject to review” and although the relief sought at

the time of the commencement of this action is beyond

recall at this time, nevertheless that the peace and

dignity of the State of Ohio may be preserved, and its

penal laws enforced, seems to make it incumbent upon

this Court to reverse the decision of the lower court

and remand this cause to the State Court.

We respectfully submit in conclusion that the de-

cree and order of the Circuit Court of Appeals in

affirming the decree and order of said District Court

should be reversed, set aside and held for naught, and

that the order of said District Court refusing to re-

mand this cause should be set aside, as well as all

50

orders made by said District Court after refus-

ing to remand this case, and that said District Court

be directed to remand this cause to the State Court—

the Court of Common Pleas of Lucas County, Ohio,

for further proceedings therein, and such other relief

as appellant may be entitled to in the premises.

Roy R. STuart,

Prosecuting Attorney,

Lucas County, Ohio,

ALLEN J. SENEY,

Special Counsel,

Solicitors for Appellant.

PPR REE SHAAN Semamanece

Supreme Court of the United States

No. 300.

Octroser Term—1921.

Tne State or Onto ex REL. ALLEN J. SENEY,

ProsecutTinc ATTORNEY oF Lwcas

County, On10,

Appellant,

vs.

Swirr & Company anp Tue NorTHern

REFRIGERATING CoMPANY,

Appellees.

On Appeal from the United States Circuit Court of

Appeals, Sixth Circuit.

BRIEF ON BEHALF OF SWIFT & COMPANY

APPELLEE, ON MOTION TO DISMISS APPEAL.

MarsHALL & FRasgr,

Solicitors for Swift & Company

H. W. Fraser.

Of Counsel.

INDEX.

wreoe. oc RRA Cee ERE RASS ES

Statement of Facts

Argument . ..........-ce sce e cece eser eee eeceeees

Judgment of the Circuit Court of Appeals was

Final, as it Determined That Diversity of

Citizenship Was the Only Ground Existing

for Removal of the Case..............+55:

The Appeal Should Have Been Directly to This

ee clad Sua Rwd Nee e dS ce ke vee ates

CASES CITED.

Boise Artesian Hot & Cold Water Co., Ltd., vs. Boise

City, 230 U. S., 98.0.6... cee eee eee ee eee eens

Brown vs. Alton Water Co., 222 U. S., 325...........

City and County of Denver vs. New York Trust Co.,

OO Ey, Ws Fs bce ss esc sanscancceessenneceees

G. & C. Merriam Co. vs. Syndicate Publishing Co.,

8 Se See oon

Keatley vs. Furey, 226 U. S., 399.......-.---+++55>

McLish vs. Roff, 141 U. S., 661.........-.---- 0005:

Roman Catholic Church of St. Anthony of Padua of

Jersey City vs. The Pennsylvania Railroad Co.,

8

a... nnn orto

Sage vs. Central Railroad Co. of Iowa, 93 U.S., 412.. 11

U. S. vse. Jahn, 155 U. S., 109... 2... . cee ee eee eee 14

REET LATENT ELLE EE PS ELLE

Supreme Court of the United States

No. 300.

Ocroser Term—1921.

Tue State or Onto ex REL. ALLEN J. Seney,

PRosecuTING ATTORNEY oF Lucas

County, Ono,

Appellant,

vs.

Swirt & Company anp THE NortTHERN

REFRIGERATING Company,

Appellees.

BRIEF ON BEHALF OF SWIFT & COMPANY,

APPELLEE, ON MOTION TO DISMISS APPEAL.

STATEMENT OF FACTS.

This action was brought in the Common Pleas Court

of Lucas County, Ohio, by Allen J. Seney, Prosecuting

Attorney of Lucas County, Ohio, as appears by his peti-

tion in which the opening paragraph reads:

“*Plaintiff for his cause of action herein says

that he is the duly elected, qualified and act-

ing Prosecuting Attorney of Lucas County, Ohio,

and that he brings this action in his official capa-

city in behalf of the State of Ohio.”’

The petition alleged that Swift & Company had

stored a large quantity of whole pork carcasses and parts

thereof with The Northern Refrigerating Company in

Toledo for a longer time than the period of six months

fixed by the Smith Cold Storage Act of Ohio, and that

such storage was in pursuance of an agreement between

the two defendants, Swift and Company and the storage

company, to create and carry out certain restrictions of

trade and commerce contrary to the provisions of the

Valentine Anti-Trust Law. That by such agreement the

defendant companies had created and were carrying out

restrictions in trade and commerce and had caused said

pork to be withdrawn from the usual and proper chan-

nels of trade and commerce and as a result had caused

the price of similar pork products to be unlawfuly in-

creased. That. unless restrained the defendants would

create and carry out similar restrictions in trade and

commerce, and unless restrained the storage company

would deliver the pork to Swift & Company, and unless

restrained Swift & Company would take the pork and sell

or expose the same for sale within Lucas County, or else-

where, contrary to law, and that unless restrained Swift

& Company would continue to use the cold storage ware-

house for the purpose of holding said pork for a longer

period than that within which said products could be so

held.

The petition further charged that in the event a re-

straining order was issued as prayed for, the defendants,

Swift & Company and The Northern Refrigerating Com-

pany would defeat the purposes of the restraining order

unless a receiver was appointed to take custody of the

‘pork. .

The prayer of the petition was for a restraining

order enjoning The Northern Refrigerating Company

from delivering the pork to Swift & Company and re-

eee SC EGE PHO tow

‘

straining the defendants from moving, changing or dis-

posing of the pork in any manner, and for the appoint-

ment of a receiver to take custody of the pork until final

decree'and that the defendants be enjoined from further

carrying out or carrying into effect any and all crimes

or acts in restriction of trade and commerce, and for

other relief.

Upon the filing of this petition on August 27, 1919,

without notice to the defendants or either of them and

notwithstanding both defendants for many years had

maintained offices and places of business in Toledo, an

injunction was granted as prayed for.

On the next day, without notice to either defendant,

a receiver was appointed to seize the property and to

take charge of and keep the pork until the further order

of the court; and then for the first time the defendants

were notified that they had been sued and enjoined and

that a receiver had been appointed, and this notice came

in the form of a seizure of the property by the receiver.

On August 30, 1919, the Prosecuting Attorney filed

his written motion for an order authorizing the receiver

to sell and dispose of the property of Swift & Company

at the earliest possible date and in such manner as may

be just and as the court may prescribe.

This motion for the sale of pork was set for Sep-

tember 3, 1919; in other words, the defendants were

given three days’ notice of a hearing to be held on Sep-

tember 3rd, although the summons issued against them

notified them in accordance with the laws of Ohio that

they had been sued in the Court of Common Pleas and

unless they answered by September 27, 1919, the petition

against them would be taken to be true and judgment

would be rendered accordingly.

On September 2, 1919, Swift & Company filed its

petition for removal to the Federal Court with proper

.

bond and served upon the Prosecuting Attorney the cus-

tomary notice that the petition would be heard upon the

day following.

The petition for removal was based upon three

grounds:

1. Diversity of citizenship.

2. That the laws of the United States were involved,

in that the pork referred to in the petition was in transit

in interstate commerce, pursuant to and under author-

ity of the methods sanctioned by the Interstate Com-

merce Commission, and hence, not subject to seizure in

the Ohio courts, and further, the procedure adopted was

a step in the taking of plaintiff’s property without due

process of law.

3. That the petitioner, Swift & Company, was de-

nied or could not enforce in the judicial tribunals of the

State of Ohio or of Lucas County rights secured to it

and all persons within the jurisdiction of the United

States, because certain courts of the State of Ohio have

construed the Smith Act (Section 1155-1, General Code

of Ohio) and the Valentine Anti-Trust Law (Sections

6400 et seq., General Code of Ohio) of the State of Ohio,

so as to authorize and permit the seizure of property

without due process of law, and, further, to authorize

the summary seizure and sale of property without hear-

ing on the merits. (Transcript of Record, pages 12-16,

inclusive. )

On September 3, 1919, Swift & Company appeared

in court by its attorneys and upon the application of the

Prosecuting Attorney the hearing on the petition for re-

moval and the Prosecutor’s motion to sell the pork were

continued until September 5th.

On September 5th the parties again appeared and

the Prosecutor stated to the Common Pleas Court that

before any order was made on the petition for removal

REALE EL IPN aL et

5

he desired to dismiss the case without prejudice as to

Swift & Company, and that notwithstanding such dis-

missal the receiver should continue in the custody of the

property of Swift & Company.

Over the objection of Swift & Company the Common

Pleas Court entered the order of dismissal and thereupon

refused to act upon the petition for removal and immedi-

ately commenced what was claimed to be a hearing upon

the Prosecutor’s motion to sell the property of Swift &

Company.

Swift & Company thereupon filed its bill in the

United States District Court to enjoin the Prosecuting

Attorney from proceeding further, and in due course on

September 11, 1919, filed its transcript of proceedings in

the United States District Court and had the same en-

tered on the docket of said court.

Thereafter on September 12 the Prosecuting Attor-

ney filed his motion to remand, and upon hearing held

October 1, 1919, that motion was overruled, whereupon

the Prosecutor attempted to appeal directly to the Su-

" preme Court of the United States. This appeal was al-

lowed by the district judge, but he very properly refused

to sign a certificate, under Section 238 of the Judicial

Code, as no final judgment had been rendered.

Swift & Company filed its answer and cross petition

on September 12, 1919. (Record, pages 21-24.)

Swift & Company then filed in the District Court a

motion to release the pork from custody, and during the

hearing this motion was supplemented by a motion for

judgment.

The testimony on behalf of Swift & Company in the

District Court showed that no whole carcasses of pork

had been stored at all, but only such parts of carcasses

as are known as ‘‘green sow hellies’’ and that these were

the subject matter of interstate commerce in that they

were stored in transit at Toledo under the through tran-

sit rate from Cleveland to Chicago and other points west

thereof, until such time, not exceeding nine months from

the date of storage, as it was possible to find room for

them in the pickling plants of Swift & Company.

Original bills of lading covering this pork were of-

fered in evidence and showed on their face the storage in

transit.

The testimony further showed that in its then

‘‘ereen’’ state the pork was unfit for human consumption

and was useful for no other purpose than to be made into

bacon by the appropriate curing and smoking process,

and that this large quantity of “‘green sow bellies’’ had

accumulated by reason of contracts between Swift & Com-

pany and the United States Government for certain parts

of pork, which compelled the accumulation and storage

of these ‘‘green sow bellies’’ which the government did

not acquire or contract for.

The testimony showed further without the slightest

contradiction that no agreement or arrangement had ever

been entered into between Swift & Company and The

Northern Refrigerating Company to store this pork for

the purpose of increasing the price thereof or for the

purpose of causing any restrictions in trade or commerce

whatsoever, or for the purpose of violating the Valentine

Act in any respect or for the purpose of violating the

Smith Cold Storage Act. The contract of storage was

the usual one which entitles the bailor to return the prop-

erty at any time upon the production of the storage re-

ceipts.

After testimony to the above effect had been taken

the Prosecuting Attorney stated to the District Court that

he desired to introduce evidence to controvert the testi-

mony of witnesses in behalf of Swift & Company and he

RAPTOR LIL ELLIE

7

was granted a continuance until October 6, 1919, for that

purpose.

On October 6th the Prosecuting Attorney in open

court declined to offer any evidence and announced that

he intended to stand upon the removal question alone.

Upon the hearing before the District Court the peti-

tioner admitted the fact to be that none of the pork held

hy the Receiver was ever offered, exposed or intended for

sale within the State of Ohio, and he hence admitted that

no offense against the Smith Cold Storage Act was ever

contemplated or committed. (Record, p. 73.)

Upon the conclusion of the hearing in the District

Court, judgment was entered for Swift & Company, and

thereupon the Prosecuting Attorney took the case on ap-

peal to the United States Circuit Court of Appeals for

the Sixth Circuit, the assignment of errors in that court

relating solely to jurisdictional questions. (Record,

pages 51-53, inclusive.)

On January 17, 1921, the United States Cirenit Court

of Appeals for the Sixth Circuit affirmed the judgment of

the District Court, and on that day handed down an opin-

ion in the ease, in which the court found that the jurisdic-

tion of the District Court could be and was sustained only

upon the ground of diversity of citizenship, and that the

other grounds assigned and invoked by Swift & Com-

pany in the petition for removal were without merit and

created no jurisdiction. (Record, pages 96-104, in-

clusive. )

Thereafter the appellant made application to this

court for a writ of certiorari in this eause, which was

denied by this court on October 10, 1921.

ARGUMENT.

The Judgment of. the Circuit Court of Appeals Was

Final, as it Determined That Diversity of Citizen-

ship was the Only Ground Existing for the Removal

of the Case.

Upon the foregoing state of facts, as shown by the

record, it is most respectfully submitted that this court

has no jurisdiction to entertain or consider this appeal,

in that, by the provisions of Section 128 of the Judicial

Code,

“The judgments and decrees of the Circuit

Court of Appeals shall be final in all cases in

which the jurisdiction is dependent entirely upon

the opposite parties to the suit or controversy be-

ing aliens and citizens of the United States or citi-

zens of different states.’’

The assignment of errors by the appellant is based

solely upon questions of jurisdiction. (Record, pages

105, 106.)

His brief on the appeal makes no other contention.

So that the case stands thus: Did the petition for

removal from the State Court to the United States Dis-

trict Court in this case properly invoke any ground of

federal jurisdiction other than that of diversity of citi-

zenship?

If it did not, even though it attempted to do so, then

the judgment or decree of the United States Circuit Court

of Appeals was final.

This court said in Roman Catholic Church of St.

Anthony of Padua of Jersey City vs. The Pennsylvania

Railroad Company, 237 U. S., 575, that:

‘“This court cannot review the judgment of the

Cirenit Court of Appeals when the complaint al-

leged diversity of citizenship, unless there remain

in the complaint, if the averments of such diversity

were disregarded, such averments as to existence

of rights under the Constitution and laws of the

SEDER OE NARI IS Sy Seema SSSR PRON AREY

Jnited States as are adequate to sustain jurisdic-

tion.

“‘Inadequacy of averments in the bill to sus-

tain jurisdiction under the Constitution and laws

of the United States cannot be cured by showing

that the nature and character of the act relied up-

on are sufficient to justify the implication that such

constitution and laws were relied upon.’’

And in the case of G. € C. Merriam Company vs.

Syndicate Publishing Company, 237 U. S., 618:

**In a ease where diverse citizenship exists, the

decree of the Circuit Court of Appeals is final

unless in addition to the allegations of diverse citi-

zenship, the bill contains averments of a cause of

action, and consequent basis of jurisdiction, aris-

ing under the Constitution or laws of the United

States.

“If the jurisdiction of the District Court was

invoked on the ground of diversity of citizenship,

and averments as to a federal right are unsustain.

able and frivolous, or foreclosed by former ad-

judication of this court, the appeal from the judg-

ment of the Circuit Court of Appeals must be dis-

missed. ’’

Also in City and County of Denver vs. New York

Trust Company, 229 U. S., 123:

“While the jurisdiction of the Circuit Court in

a case where diverse citizenship exists may also

rest upon the fact that the case is one arising

under the Constitution of the United States, in

which case there is an appeal from the judgment of

the Cireuit Court of Appeals, that is not the ease

where the alleged infractions of the Constitution

are without color of merit, or are anticipatory of

defendant’s defense.”’

So that the question resolves itself into a simple

consideration of the allegations of the original petition

for removal and the adjudication of the Cireuit Court of

Appeals with respect to the same.

10

As to these the Circuit Court of Appeals found that

jurisdiction existed on the ground of diversity of citi-

zenship. (Record, page 102.)

As to the other grounds of removal, it held that they

were not well taken; the court saying as follows (Record,

pages 96, 97) :

‘*Removal is sought to be upheld because: 1.

The controversy is controlled by, and necessarily

involves, the constitution or laws of the United

States; 2. Defendant can not enforce, in the

judicial tribunals of Ohio, its equal, civil rights as

a citizen of the United States; 3. The parties

are citizens of different states,

‘1. The Laws of the United States.—It is said

that these are involved in three ways: (a) the

property was in transit in interstate commerce,

pursuant to and under the authority of the methods

sanctioned by the Interstate Commerce Commis-

sion, and, hence, was not subject to seizure in the

Ohio courts; (b) the procedure initiated by peti-

tion was a step in the taking of plaintiff’s prop-

erty without due process of law, in violation of the

Fourteenth Amendment; (c) the Lever Act, so-

ealled, had, for the time of the war, superseded

the Smith Cold Storage Act, and the case, there-

fore, called for application and construction of the

Lever Act.

‘*Tt is enough to say of all these contentions that

they present matters of defense, and that the suit

or proceeding commenced by the petition plainly

did not arise under the Interstate Commerce Act,

or the Fourteenth Amendment, or the Lever Act. It

is well settled that the entry of a federal question

into a case by way of defense, although it may

present the controlling or the only disputed ques-

tion, does not justify removal under Section 28

of the Judicial Code (In re Winn, 213 U. S., 458).

‘9 Denial of Civil Rights—Whether the

situation, which defendant, by argument, under-

takes to present on this subject, could in anv event

justify removal under Section 31 of the Judicial

Code, we need not consider. The effort to sup-

port removal under this section is an afterthought.

ERTL ENTEN TS ER SA EE

11

The removal petition has only one allegation which

is now claimed to be pertinent on this point. It is

to the effect that ‘‘certain courts’’ of the State of

Ohio have construed the statutes and laws of Ohio

so as to permit the seizure and taking of plaintiff’s

property without due process of law, whereby

“petitioner will be unable to enforce its rights under

the laws of the United States.’ This comes very

far short of the full and exact statement of de-

privation of civil rights which would be necessary,

if it could be thought that Section 31 has any refer-

ence to such a controversy as this (see Iron Moun-

tain Co. vs. Memnhis, 96 Fed., 113, 122: K entucky

vs. Powers, 201 U. §S., 1).

So the appellant was sustained by the United States

Cireuit Court of Appeals on all of his objections to the

jurisdiction of the District Court, except the one as to

the existence of diversity of citizenship.

His appeal, therefore, must be upon the sole ground

that diversity of citizenship does not exist, for he cannot

be permitted to assert here that the Cireuit Court of

Appeals was wrong in holding in his favor that federal

-jurisdiction did not attach on the other grounds alleged

in the petition for removal—and thereby give this court

jurisdiction; and then turn around and say that the Cir-

cuit Court of Appeals rightly decided those other ques-

tions and was wrong only as to the existence of diversity

of citizenship.

His appeal can be here only upon matters decided

adversely to him.

Sage vs. Central Railroad Co. of Towa, 93

U.S., 412.

It follows that the judgment of the Cireuit Court of

Appeals was final as to him, and he cannot seek to review

it in this court.

True, the Cireuit Court of Appeals itself might have

certified the question, had it seen fit, under Section 239

of the Judicial Code, but that was a matter within the

diseretion of that court, which it did not exercise.

Another method of review was open, under Section

240 of the Judicial Code, by petition of the appellant to

this court for a writ of certiorari, but, as we have already

shown, such petition was filed and this court declined to

issue the writ.

As was pointed out in Brown vs. Alton Water Com-

pany, 222 U. S., 325:

“The Judiciary Act of 1891 affords, by one

method or the other, an opportunity for review by

this court of every judgment or decree of a lower

court which the Judiciary Act contemplated should

be reviewed by this court.’’

So that the appellant is in no position to say that he

has been or is denied a right of review.

His situation is simply that both this court and the

Circuit Court of Appeals have already declined to further

review this case in the ways provided by the appropriate

statutes, and he now seeks such a review by a method

expressly forbidden by Section 128 of the Judicial Code.

One test is this: What judgment could this court

render in favor of the appellant, on the appeal if al-

lowed?

It could only be, that the Circuit Court of Appeals

was wrong in holding that diversity of citizenship existed.

But that is exactly what, as we understand the law,

this court has no jurisdiction to pass upon or determine.

It matters not whether the grounds for the conclusion

reached by. the Circuit Court of Appeals in this behalf

were correct or incorrect. We respectfully submit that

this court has no jurisdiction to inquire into them. The

substantive fact is that that court found no other ground

of jurisdiction than diversity of citizenship, and its de-

termination of that one question is final, whether right

or wrong.

The Appeal Should Have Been Directly to This Court.

A further reason why this court has not jurisdiction

of this appeal is disclosed by the record, as follows:

On September 2, 1919, Swift & Company filed its

petition for removal to the Federal Court, with proper

bond and notice. On September 11, 1919, it filed its tran-

script of proceedings in the United States District Court,

and had the same entered on the docket of said court.

On September 12, 191 9, it filed its answer and cross peti-

tion in the District Court. (Record, pages 12-19, 21-25.)

On September 17, 1919, the appellant filed his mo-

tion to remand the cause to the State Court, which was

overruled on October 1, 1919. (Record, pages 26, 27.)

At that stage of the proceedings the appellant under-

took to appeal the cause to this court on the ground of

lack of jurisdiction. (Record, pages 28-33.)

The United States District Court, however, refused

to grant a certificate respecting jurisdiction, under Sec-

‘tion 238 of the Judicial Code, for the reasons set forth in

a memorandum of opinion filed that day, October 18, 1919

(Record, pages 34-36), namely, that such certificate can

only be had and the case so appealed direct to this court

after final judgment, as a case cannot be brought to this

court by piecemeal.

McLish vs. Roff, 141 U. S., 661.

Keatley vs. Furey, 226 U. S., 399.

Thereafter the case was heard upon the merits and

final judgment rendered.

At that point the appellant had an election between

two remedies: He might either cause the case then to be

certified on appeal, under Section 238 of the Judicial

a

a

Code, direct to ‘this court, or appeal it ‘to the Cireuit

Court of Appeals on the merits.

U. S..vs. Jahn, 155 U. S., 109. -

Boise Artesian Hot & Cold Water Com-

pany, Ltd., vs. Boise City, 230 U. S., 98.

But he could not do both.

_. Having chosen to go to the Circuit Court of Ap-

peals, that court might have certified the question of

jurisdiction to this court, had it desired, or it could—as

it did—decide the jurisdiction along with the other ques-

tions in the case.

' But where, as here, the jurisdiction of the District

Court is founded solely upon diversity of citizenship—

being so determined by the Circuit Court of Appeals—

no’ appeal will lie to this court.

The assignment of errors in this court shows that the

appellant has attempted to bring the case up now solely

on the question of jurisdiction. (Record, pages 105, 106.)

We earnestly submit that this cannot be done.

’ For the foregoing reasons it is respectfully urged

' that this motion should be allowed and the appeal dis-

missed.

Most respectfully submitted,

H. W. Fraser,

MarsHautt & Fraser,

Solicitors for Swift & Company.

H. W. Fraser.

Of Counsel.

REE OLELREN BRIELLE IP IER HID