Cashman v. Amador Sacramento Canal Company/Opinion of the Court

This is an appeal under section 5 of the act of March 3, 1875, (18 St. 470, c. 137), from an order of the circuit court dismissing a suit on the ground that it did not really and substantially involve a dispute or controversy properly within the jurisdiction of that court. The facts are these: Cashman, the plaintiff, was an alien, and he owned a tract of 700 acres of land in Sacramento county, California, situated on the Cosumnes river, which it is claimed was injured by the mining debris thrown on it in the working of certain mines by hydraulic process. On the ninth of September, 1885, a bill in chancery was filed in the circuit court of the United States, in the name of Cashman against the Amador & Sacramento Canal Company, a California corporation, and certain other defendants, all citizens of California, to restrain them from operating their mines so as to allow the debris to be deposited on his premises. Subpoenas were issued and served on some or all of the defendants, returnable on the second of November. On the return-day a motion was made by some of the defendants, and among others the Amador & Sacramento Canal Company, to dismiss the suit for want of jurisdiction, and because it was commenced and prosecuted in violation of the provisions of section 5 of the act of March 3, 1875. At the hearing of this motion it appeared, by the admission of both parties, that the county of Sacramento and Cashman had, on or before the sixth of October, 1885, entered into a contract in writing, of which the following is a copy:

'Whereas, the county of Sacramento desires to restrain the     miners working by hydraulic process on the Cosumnes river,      and using the bed thereof as a place for the deposits and      wastage of the tailings and debris from their mines; and      whereas, it is desired to bring such suit in the circuit      court of the United States for the district of California,      and in the Ninth circuit; and whereas, George Cashman has      brought, or is about to bring, such suit in said circuit      court against the miners working on the Cosumnes river by      hydraulic process; and whereas, the county of Sacramento is      directly interested in the said suit, and in the      subject-matter of litigation, and the same is brought for its      benefit, the county being unable to sue in such court; and      whereas, the county of Sacramento, by a resolution duly      passed by its board of supervisors on the twenty-second day      of September, 1885 has agreed to pay the costs and expenses of such suit, and to      keep the said George Cashman safe and harmless from all      counsel fees, costs, and charges to be paid or incurred      therein: now, therefore, this contract and indenture, made in      pursuance of said resolution between the county of      Sacramento, the party of the first part, and George Cashman      aforesaid, party of the second part, witnesseth that the      party of the first part, the said county of Sacramento, does      hereby stipulate, covenant, and agree to supply the said      George Cashman with the services of competent attorneys,      to-wit, A. L. Rhodes, S.C.. Denson, and Robert T. Devlin, to     institute, conduct, and manage such suit, and does further      covenant and agree to pay all the charges, costs, and      expenses thereof or connected therewith, and to hold and keep      him, the said George Cashman, safe and harmless from any      costs, counsel fees, charges, or expenses to be paid or      incurred in the institution, conduct, and prosecution of the      said suit. The said George Cashman, the party of the second     part, does hereby stipulate, covenant, and agree not to      compromise, dismiss, or settle the said suit without the      consent of the county of Sacramento, and to allow the said      county and the attorneys aforesaid, in its behalf, to manage      and conduct the said suit to the same extent and in the same      manner as if such suit had been commenced by and was      prosecuted in the name of the said county of Sacramento.

'In witness whereof the parties hereto, the party of the     first _____, by the chairman of its board of supervisors, he      being by a resolution of said board passed September 22,      1885, duly thereunto authorized, have hereunto set their      hands and seals this twenty-sixth day of September, 1885;      this contract being executed in duplicate, each party      retaining one.

[Seal of the Board of Supervisors of the County of     Sacramento.]

'COUNTY OF SACRAMENTO,

'BY L. H. FASSET,

'Chairman Board of Supervisors.

'GEO. CASHMAN.' [Seal.]

Upon this showing, there being nothing against it, the court granted the motion. To reverse an order to that effect this appeal was taken.

It is very apparent from the face of the agreement on which the right to the dismissal depends that the suit was originally brought by the county of Sacramento for its own benefit, and that the name of Cashman was used with his consent, because the county could not sue in its own name in the circuit court of the United States. The recital shows, in express terms, that the suit was brought for the benefit of the county because it desired to restrain the miners from depositing the debris from their mines in the bed of the river, and it could not sue therefor in its own name in the courts of the United States. For this reason the county provided the attorneys who were to 'institute, conduct, and manage such suit,' and it agreed 'to pay all the charges, costs, and expenses thereof, or connected therewith, and to hold and keep * *  * Cashman safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct, and prosecution of the suit;' and Cashman, on his part, agreed 'not to compromise, dismiss, or settle the *  *  * suit without the consent of the county, *  *  * and to allow the *  *  * county and the attorneys, *  *  * in its behalf, to manage and conduct the *  *  * suit to the same extent and in the same manner as if such suit had been commenced and prosecuted in the name of the county.' From the very beginning the suit was and is in reality the suit of the county, with a party plaintiff 'collusively made,' 'for the purpose of creating a case cognizable' by the circuit court of the United States under the act of March 3, 1875. While, therefore, the 'dispute or controversy' 'involved' is nominally between Cashman, an alien, and the defendants, citizens of California, it is really and substantially between one of the counties of California and citizens of that state, and thus not 'properly within the jurisdiction' of the circuit court.

The order dismissing the suit is affirmed.