COUNTY OF COLF!L
FULLER and others v. COUNTY
(Circuit Court, D. Nebraska.
RE}fOVAL OF CAUSE-COURTS-SUITS REMOVABLE.
November Term, 1882.)
A board of county commissioners of a county created by the laws of the state of Nebraska, is in no just or proper sense a court within the meaning of thu removal acts of congress; and a. mere claim against a county for right of way for a. public road, while the same is pending before the county board, does not constitute a suit within the meaning of the said removal acts.
Motion to Remand Cause to State Court. Mr. Wakeley, for plaintiff. Mr. Munger, for defendant. DUNDY, D. J. This cause was rem(jved into thiA court from a state court held within and for Colfax county. The defendant moves to remand the same, for the reason that the suit was removed from an appellate court and not from the one in which the suit was brought. If this be true it must, of necessity, be decisive of the motion. In considering the motion two questions arise-First, is a board of county commissioners a court within the meaning of the removal acts of congress; and, second, is a mere claim for damages for right of way for a public road, presented to the county board, a suit within the meaning of the said removal acts, so long as the claim there remains for consideration. The state law provides for paying for the right of way necessary in locating all public roads. If damages are sustained by the Owners of land through which a road is located, the county is primarily liable therefor, and the manner of making the claim as well as the mode of making the payment is here perfectly well understood. After the location of the road all that seems to be necessary for the injured party to do is to make known to the county board the fact that dam. ages are claimed for the right of way. If the claim is thought to be just and reasonable the county board allows it, and draws warrants on the county treasury for the amount of damages awarded. If the claimant should be dissatisfied with the amount of damages so awarded him, he can appeal to the district court of the proper county, where the case is to be tried de novo. Thus it will be seen that the remedy provided by law in cases like the present one is alike speedy, efficacious, inexpensive. The plaintiffs were damaged,· as they claim, in consequence of a public road being located through their lands; and they presented v.14,noA-12
to the county board a claim in the sum of $5,000 therefor. The board reduced the claim, or sum allowed, to $250, and the claimants appealed to the district court, all of which was done in strict accord· ance with the law. In presenting a claim to the county board for allowance, no formal proceedings are at all necessary, no pleadings of any sort are required to be filed, no process issued for any purpose whatever connected with the matter, and no formal judgment follows either the rejection or allowance of a. claim by the board. The claim, when so made, is simply audited, allowed, or rejected, as justice and reason seem to require. In case of an appeal to the district court, the appeal is docketed, and pleadings are filed, and the cause then in all respects proceeds in the uaual and ordinary way. The cause is then, in every sense of the term, in a court, and is also, then, in every sense of the term, a 8'uit. Now, what is usually understood by the words "court" and "suit," where we find them in legislative enactments or in legal proceedings? Blackstone says a "court is a place wherein justice is judicially administered." To administer justice judicially, there must be ajudge, and usually, though not always, there are also other officers, such as clerk and sheriff or marshal. That also implies the right to issue compulsory process to bring parties before the court, so that 'jurisdiction may be acquired over the person or property which forms the SUbject-matter of the controversy. To administer justice judicially, two parties to a controversy must exist; there must be a wrong done or threatened, or a right withheld, before the court can act. Then a hearing or trial follows, and the "justice to be jndicially administered" results in a formal judgment for one of the parties to the controversy. The judgment to be pronounced usually has full binding force, unless modified or reversed. The courts can issue the proper process to carry their judgments into effect, and in that way subserve the great ends of their creation. But this is not so with the connty boards in this state. They are not clothed with the necespower t.o issue compulsory process to bring parties litigant before them. They cannot, in cases like the one under consideration, issue process to compel the attendance' of witnesses. They cannot and do not enter formal judgments in cases presented to them for their consideration. They have no authority to execute any judgments if they should thoughtlessly undertake to enter them. They have but one party before them on' whom their orders can operate. In short, the county board is so totally unlike a court, and so differ·
ent in its constitution and its objects, that I am unable to see any similarity between them. If the county board cannot be regarded as a court, it will follow as a necessary consequence that no suit was pending in this case until the appeal from the order of the board was filed and docketed in the district court. Two parties to a suit seem to be almost indispensable: one who seeks redress, and the other who commits a wrong or with.· holds what is justly due another. The parties must stand in such relation to each other that the machinery of the court will Gperate on them when their powers and their aid are invoked. No such a condition of things existed so long as this claim remained before the county board. But when the appeal was taken, and docketed in the district cou.rt, we then for the first time find a suit pending in the oourt where none of the elements of either are wanting. It is such a Buit that can be removed from such a court, as the removal acts of congress contemplate. I conclude, then, that the board ot county commissioners of Colfax Munty is not a "oourt," and that this" 8uit" was never pending in any other court than the district court of Colfax county, from which it was removed to this court, and that it was, therefore, properly re-. moved herein. The motion to remand is overruled. MoCRARy, C. J., concurs.
A cause may be removed from any state court, whether of limited or general jurisdiction, if citizenship and amount are within the statute requirements, «(}alnes v. Fuente8, 92 U. S.10; S.C.8 Chi. Leg. News, 225;) but a justice's court is not a state court, (Rathbone Oil 00. v. Rausch, 5 W. Va. 79.) The right is confined to parties litigant in state courts. The act does not apply to territorial courts, although on the admission of such territory as a state the suit passed into the jurisdiction of the state court. Ames v. Oolomdo Oent. R. 00. 4 Dill. 251; S. C. 4 Cent. Law J. 190. See Watson v. Brooks, 13 FED. REP. 540. So, actions brought by the District of Columbia against an alien cannot be removed. Oessel v. McDonald, 57 How. Pro 175. S. C. 16 Blatchf.150.[ED.
CITY OF NEW ORLEANS.-
(Oircuit Oourt, E. D. Louilfiana.
REMOVAL OF CAUSES UNDER
REv. ST. p. 639, § 3-AFFIDAVIT. The affidavit required by the act of 1867 (14 St. 558; Rev. St. p. 639, § 3) to he made by the petitioner for the removal of a case from a state court to the federal court, on acco1Jllt of "prejudice and local influence," may. in the absence of the petitioner, be made by his attorney of record, if the affiant swears that both himself and his client "have reason to believe, and do believe, that from prejudice and local influence he will not be able to obtain justice."