MAYOR, ETC., OF BALTIMORE v. POSTAL TEL. CABLE CO.

MAYOR, ETC., OF BALTIMORE v. POSTAL TEL. CABLE CO. (Circuit Court, D. Maryland. February 23, 1894.) 1. Removal — Jurisdiction—Amount in Controversy. An action was brought by a city in a state court to recover a tax of $2 for each of 509 telegraph poles maintained in the streets, but tito declaration concluded: “And plaintiff claims $10,000.” Held, that the actual amount in dispute was but the amount of the tax, $1,018, and a circuit court could not take jurisdiction by removal. 2. Same. Defendant could not maintain that the real man»’ in dispute was its right to keep its poles in the streets without paying the tax and without being liable to the fine of $10 per pole for nonpayment, imposed by the city ordinance, and the penalty of having its poles removed; for in an action at law to recover money, ¡lie amount in controversy is determined by the particular demand sued for, and not by any contingent loss through the indirect or probative effect of the judgment, however certain such loss may be. Tills was an action by the mayor, etc., oí Bait!more, against the Postal Telegraph Cable Company to recover a Lax of two dollars on each pole maintained by defendant in the city streets. The action was brought in a court of the state of Maryland, and removed therefrom by defendant. Plaintiff moved to remand. William S. Bryan, Jr., for plaintiff. X. E. Preston and Geo. H. Bates, for defendant. [MAJORITY — MOREIS, District Judge.] MOREIS, District Judge. This case was originally brought in the court of common pleas of Baltimore city, and was removed opon 1 he petition of the nonresident defendant. The plaintiff now moves to remand the case upon the ground that the matter iu dispute does not exceed, exclusive of interest and costs, the sum or value of $2,000, which, by the act of congress of August IB, 1888, is the sum required to give jurisdiction to this court, and to give the right of removal. The declaration contains but one count, and that is for the recovery of the lax of $2 for each of 509 (olograph poles alleged to be maintained by (he defendant in the streets of the city of Baltimore. The declaration concludes as follows: “And the plaintiff claims fen thousand dollars.” The amount alleged to be due and unpaid by the single count of the declaration is the tax of $2 on each of 509 telegraph poles, and there was filed with the declaration an account in which the only item is as follows: Baltimore, Nov. 10, 1803. Tire Postal Telegraph Cable Co., to the Mayor and City Council of Baltimore, Hr. To license fee on 500 poles, at §2 per polo...$1,018 Interest from June 15th, 1803. r To this account the mayor makes oath “that there is justly due and owing by the Postal Telegraph Cable Company, the defendant in said case, to 1he plaintiff, on the annexed account (the cause of action in said cause), (he sum of $1,018, over and above all discounts.” If the defendant bad suffered judgment to go against it by default, the whole amount for which judgment could have been entered would have been $1,018, vvith internst and costs. II is true that, in actions of tort, it is the damages claimed which determine the amount in dispute, but, in an action to recover a specific sum of money, the court examines the body of the declaration, and the cause of action set out, to determine what is the real sum in dispute. Hilton v. Dickinson, 108 U. S. 174, 2 Sup. Ct. 424; Lee v. Watson, 1 Wall. 337. In this case the declaration and the sworn account disclose that, the real matter in dispute is $1,018, and not tlie sum demanded in the formal claim of damages. It is urged, however, that the real matter in dispute, so far as it affects the defendant, is its right to maintain it.s poles, ¡is now erected in the streets of the city, without paying (he annual tax of $2 for each, and without beiug liable to a fine of $10 for each pole, imposed by the ordinance for nonpayment, and without being subject to the penalty of having its poles removed, in default of payment, and because the right to recover in this suit depends upon the validity of the ordinance, and, if its validity is sustained in this suit, the consequence to the defendant will be that it will have to pay a large annual tax, or submit to have its poles and its business destroyed. It is true that where a bill in equity is filed to abate a nuisance, or to set aside a deed, or for a decree giving other mandatory or preventive relief, it is the value of the property of which the defendant may be deprived by the decree sought which is the test of jurisdiction, and not the claim of the complainant. Railroad Co. v. Ward, 2 Black, 485; Market Co. v. Hoffman, 101 U. S. 112; Estes v. Gunter, 121 U. S. 183, 7 Sup. Ct. 854. But it has been uniformly held in actions at law, where the plaintiff's claim is for money, that the amount in controversy is determined by that particfilar demand which the plaintiff sues for, and not by any contingent loss which either party may sustain through the indirect or probative effect of the judgment, however certain it may be that such loss will occur. Security Co. v. Gay, 145 U. S. 123, 12 Sup. Ct. 815; Elgin v. Marshall, 106 U. S. 578, 1 Sup. Ct. 484; Gibson v. Shufeldt, 122 U. S. 27, 7 Sup. Ct. 1066; Clay Center v. Farmers’ Loan & Trust Co., 145 U. S. 225, 12 Sup. Ct. 817; Washington & G. R. Co. v. District of Columbia, 146 U. S. 227, 13 Sup. Ct. 64. It seems to me clear, upon authority, that this suit must be remanded.