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the Union elders, have a common interest with the complainants, since they are the pastor, members, and officers of the Presbyterian Church in the United States of America, and have a common interest in holding and having the use of the church property and the manse described in the bill. Upon the other hand the interest of the defendants, the Cumberland pastor, Rev. P. F. Johnson, and the elders of that church, is antagonistic to their codefendants, the Rev. Mr. Gardner and his elders, in that the former are alleged by the bill to be claiming the right to the possession and use of the church and manse in controversy, while the latter are in possession. So that we find that the interests of these two classes of defendants are antagonistic, and that the interest of one class of defendants and the complainants are identical, while the interest of the other class of defendants is antagonistic to the complainants.

Does that interest of these two classes of defendants, such as it is, make them necessary parties to this suit? Learned counsel for the complainants evidently so understood it, else why should they have made the Union pastor and elders parties at all? If this court is to grant the prayer of the bill and decree which pastor and which set of elders are entitled to hold, use, and control the church property, it would seem that all of them are necessary parties, and I am so inclined to hold. It appears from the bill that the Union elders and their pastor are in possession of the church and manse at present, and all that is asked in their behalf in the bill is that the court decree that they continue to hold the title to said property in trust. There is nothing in the bill showing or tending to show that they have at any time shown any inclination to discontinue to hold the title to said property in trust for the use and benefit of the congregation of the Greenfield Presbyterian Church. Neither is there anything in the bill tending to show that the Rev. O. E. Gardner, the pastor of the United Church in question, has shown any inclination to decline to occupy the pulpit or conduct its services. Why these defendants, the Unionists, should be made parties defendant to this suit, when there is no prayer for relief as against them in any form, is difficult to understand, except upon the ground that they were deemed to be necessary parties and were made codefendants with Rev. P. F. Johnson, pastor of the Cumberland Church, and the elders thereof, for the purpose of conferring jurisdiction upon this court, which would not exist had they been joined with complainants.

The real and only relief that is sought is to restrain the Cumberland pastor and his elders from interfering with their codefendants, Rev. Mr. Gardner and his elders; from attempting to or taking possession of the house of worship and the manse; or from interfering with the pastor, Rev. O. E. Gardner, or his successors, in the conduct of religious exercises or functions as pastor; and from in any manner, by suit or otherwise, disturbing or interfering with complainants, said congregation, its pastor, officers, or members in the possession, use or enjoyment of said property.

From what has been said, it follows that the parties to the suit must be rearranged. Since the interests of O. E. Gardner, pastor of the Unnion Church, and the elders of said Union Church, are identical with

complainants, they must be considered as complainants for the purpose of the disposition of this question of jurisdiction. To my mind it is clear that they were made defendants for the purpose of presenting a case of diversity of citizenship and thus conferring jurisdiction, and reopening in the United States court a controversy which had been decided in the courts of the state. Steele v. Culver, 211 U. S. 26, 29 Sup. Ct. 9, 53 L. Ed. 74; Venner v. Great Northern Railway, 209 U. S. 25, 28 Sup. Ct. 328, 52 L. Ed. 666; Dawson v. Columbia Trust Co., 197 U. S. 178, 25 Sup. Ct. 420, 49 L. Ed. 713.

Complainants rely upon the case of Watson v. Jones, 13 Wall. 723, 20 L. Ed. 666. The question of want of jurisdiction upon grounds of diverse citizenship was not raised in that case, and therefore it cannot be taken as authority in determining that question before this court in this case. It appears that prior to the judiciary act (Act March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508]), in determining the question of jurisdiction, based on a diversity of citizenship, the rights of the parties with respect to jurisdiction based upon a diversity of citizenship were determined solely according to the position they occupied as complainants or defendants on the face of the pleadings. Under the new law, the mere form of the pleadings may be put aside, and the parties placed upon different sides of the matter in dispute, according to the facts. Removal Cases, 100 U. S. 469, 25 L. Ed. 593; Coal Co. v. Blatchford, 11 Wall. 174, 20 L. Ed. 179. The case of Watson v. Jones, supra, was decided prior to the act of 1875, at a time when the arrangement of the parties to the suit as they appeared on the face of the pleadings alone were considered in determining the rights of the parties touching the jurisdiction of the court, when based on diversity of citizenship. The cases relied upon by the complainants to sustain their contention on this question of jurisdiction, based on diverse citizenship, have no application, in my judgment, to the case at bar.

Without discussing or determining the other questions raised by the plea in abatement, I hold that, on a proper rearrangement of the parties to the suit, the diversity of citizenship required by the statute to confer jurisdiction upon this court does not exist. The plea is therefore held to be sufficient in law. Act March 3, 1875, c. 137, § 5, 18 Stat. 472 (U. S. Comp. St. 1901, p. 511).

An order will be entered, denying the injunction applied for, and dismissing the bill for want of jurisdiction, with costs.

A similar order will be entered in No. 243, C. M. Ross et al. v. Robert Hurst et al.

UNITED STATES v. SOUTHERN PAC. CO.

(Circuit Court, D. Oregon. September 13, 1909.)

1. PENALTIES (§ 41*)-Costs-NATURE OF SUBJECT-MATTER-ACTION FOR PENALTY FOR VIOLATION OF TWENTY-EIGHT HOUR Law.

An action by the United States to recover from a carrier the penalty imposed by Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), for confining live stock more than 28 consecutive hours, is a For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

civil action, with all the ordinary incidents of such an action, including lia. bility of the defeated party for costs; but, if regarded as penal, on a recovery by the government, the defendant is subject to the payment of costs by the terms of Rev. St. § 974 (U. S. Comp. St. 1901, p. 703).

[Ed. Note.-For other cases, see Penalties, Dec. Dig. § 41.*]

2. COSTS (§ 173*)—ITEMS-ATTORNEY'S FEES-ACTION FOR VIOLATION OF TWENTY-EIGHT HOUR LAW.

On a recovery by the government in an action for violation of Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), known as the "Twenty-Eight Hour Law," in the district of Oregon, a docket or attorney's fee of $40 is taxable against the defendant, under the provisions of Rev. St. §§ 824, 837 (U. S. Comp. St. 1901, pp. 632, 644).

[Ed. Note.-For other cases, see Costs, Cent. Dig. § 688; Dec. Dig. § 173.*]

3. COURTS (§ 357*)-FEDERAL COURTS-COSTS-MILEAGE OF WITNESSES.

The prevailing party in a civil action in a federal court is entitled to tax as a part of his costs mileage for his witnesses for the distance necessarily traveled by them from any point to which a subpoena would run, viz.: From any point within the district, and for not exceeding 100 miles for witnesses coming from without the district.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*]

4. COURTS (§ 357*)-FEDEral Courts-Costs-MARSHAL'S FEES.

The prevailing party in a suit in a federal court is not entitled to tax against his opponent as a part of his costs the fees of the marshal for serving subpoenas on witnesses residing without the district and more than 100 miles from the place of trial.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*]

5. COURTS (§ 357*)—FEDERAL Courts-CoSTS-ACTION BY UNITED STATES-WITNESS FEES.

Under Rev. St. § 850 (U. S. Comp. St. 1901, p. 655), the United States, when the prevailing party in a suit in a federal court, is entitled to tax as · costs the necessary expenses of a salaried employé taken away from his place of business to attend as a witness for the government, regardless of the distance traveled by him.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*]

On Taxation of Costs.

Walter H. Evans, Asst. U. S. Dist. Atty.
J. E. Fenton, for defendant.

BEAN, District Judge. The plaintiff, having recovered judgment in two civil actions against the defendant for violation of Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. .Supp. 1907, p. 918), prohibiting any railroad company from confining animals, while in transit from one state to another, for more than 28 hours, and which is commonly known as the "Twenty-Eight Hour Law," filed its bill of costs in each of such actions. The defendant objects to the allowance of any costs, on the ground that the proceeding to recover the penalty provided in the act referred to is neither an action at law nor a suit in equity, but is a special proceeding, and since the act itself does not authorize or warrant the imposition of costs, in addition to the penalty therein provided for a violation of its provisions, no costs can be *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

taxed. The defendant also objects to certain items in the complainant's bill of costs: First, a docket or attorney's fee of $40; second, for the mileage of certain witnesses on behalf of the plaintiff, who reside in this state and more than 100 miles from the place of trial; third, for the mileage of certain witnesses residing in the state of California; fourth, for the fees of the marshal of the Northern district of California for serving subpoenas on witnesses in that district, and a similaritem for the fees of the marshal of the district of Washington for serving a subpoena in that district; fifth, the expenses of one Hanson, an employé of the Reclamation Service, who was sent from Toppenish, in Washington, to testify as a witness in the case.

1. An action to recover the penalty provided in the act of Congress referred to is a civil action with the ordinary incidents of such an action. Montana Central Railway Co. v. United States, 164 Fed. 400, 90 C. C. A. 388; United States v. Southern Pacific Co. (D. C.) 157 Fed. 459; United States v. Baltimore Ry. Co., 159 Fed. 33, 86 C. C. A. 223; United States v. Southern Pacific Co. (D. C.) 162 Fed. 412; New York Central Railroad Co. v. United States (C. C. A.) 165 Fed. 833. And therefore the plaintiff, as the prevailing party, is entitled to its costs. Western Coal & Mining Co. v. Petty, 132 Fed. 603, 65 C. C. A. 667 Moreover, section 974 of the Revised Statutes (U. S. Comp. St. 1901, p. 703) provides that when judgment is rendered. against the defendant in a prosecution, for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs. This section would seem to authorize the taxation of costs in actions of this kind.

2. Sections 824 and 837 of the Revised Statutes (U. S. Comp. St. 1901, pp. 632, 644) authorize the taxation and allowance, on a trial before a jury in a civil or criminal action prosecuted by the government, of a docket or attorney's fee of $10. These provisions, so far as they may relate to the district attorney, are not repealed or modified by Act May 28, 1896, c. 252, 29 Stat. 179 (U. S. Comp. St. 1901, p. 611), placing district attorneys on salaries, except as to the disposition of such fees. Section 6 of the latter act provides that all fees and emoluments allowed by law to be paid United States attorneys and United States marshals shall be charged as heretofore, and shall be collected, as far as possible, and paid to the clerk of the court having jurisdiction, and by him covered into the treasury; and section 17 declares that sections 6 to 16, inclusive, shall not be construed to prevent or affect the assessment or taxation of costs against the unsuccessful party in a civil proceeding, or against defendants convicted of crimes or misdemeanors.

3. The extent to which the prevailing party in a civil action may charge against his adversary mileage fees of witnesses who attended the trial on his behalf is a subject of much conflict in the federal decisions. The question has not been authoritatively decided by the Supreme Court or the Court of Appeals, so far as I am advised. In some jurisdictions it is held that the successful party is entitled to the mileage of his witnesses, regardless of the place of their residence, or whether they came from or out of the district, and whether they attended in obedience to a subpoena or at the request of the party.

United States v. Sanborn (C. C.) 28 Fed. 299. In others it is held that since section 863, Rev. St. (U. S. Comp. St. 1901, p. 661), provides for taking the deposition of a witness residing more than 100 miles from the place of trial, the clerk has no authority to allow mileage for a witness residing at a greater distance, whether within or without the district. Smith v. Chicago & Northwestern Ry. Co. (C. C.) 38 Fed. 321. The rule, however, supported by the great weight of authority is that the prevailing party in a civil action is entitled to charge, as part of his costs, mileage for the distance necessarily traveled by a witness to attend the trial on his behalf from any place to which a subpoena will run; that is, from any point within the district, or from any point out of the district and not exceeding 100 miles from the place of holding court. The Syracuse (C. C.) 36 Fed. 830; Eastman v. Sherry (C. C.) 37 Fed. 845; Burrow v. Kansas City R. R. Co. (C. C.) 54 Fed. 278; The Vernon (C. C.) 36 Fed. 113; Śloss Iron & Steel Co. v. South Carolina Ry. Co. (C. C.) 75 Fed. 106; Griggsby Construction Co. v. Louisiana Ry. Co. (C. C.) 123 Fed. 751; Buffalo Ins. Co. v. Steamship Co. (C. C.) 29 Fed. 237. And this seems to be the rule prevailing in this district and circuit. Spaulding v. Tucker, 2 Sawy. 50, Fed. Cas. No. 13,221; Haines v. McLaughlin (C. C.) 29 Fed. 70; Hunter v. Russell (C. C.) 59 Fed. 964; Hanchett v. Humphrey (C. C.) 93 Fed. 895. The costs in this case will be taxed in accordance with this rule, and plaintiff will be allowed to include in its judgment the mileage of its witnesses residing in the state, and not to exceed 100 miles for those residing out of the state.

4. A witness residing out of the district and more than 100 miles. from a place of trial cannot be compelled to attend in obedience to á subpoena. The service of a subpoena upon him by the marshal amounts to nothing more than a request to attend, and the prevailing party is therefore not entitled to charge against his opponent as a part of the cost the marshal's fees for serving such a subpoena. This is the interpretation given Parker v. Bamker, 6 McLean, 631, Fed. Cas. No. 10,725, by Judge Sawyer, in Spaulding v. Tucker, supra, and is a reasonable rule.

5. The witness Hanson was a salaried employé of the government in the Reclamation Service, and was sent from his place of business at Toppenish, Wash., as a witness; and therefore the plaintiff is entitled, under section 850, Rev. St. (U. S. Comp. St. 1901, p. 655), to have included in the judgment against the defendant his necessary expenses in going and returning and attendance on the court, regardless of the distance traveled by him. United States v. Sanborn, 135 U. S. 271, 10 Sup. Ct. 812, 34 L. Ed. 112; United States v. National Security Co. (D. C.) 168 Fed. 314.

The costs in the two cases referred to will be taxed in accordance with the rules above stated.

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