D. Miohigan,8. D. November 28,1887.)
repealed the act of 1875. under which this case was, at that time, removable, and provided that petitions for removal must be filed at the time of pleading. Held.· that the case must be remanded.
2. SAME-JURISDICTION-POWER OF CONGRESS.
1887, in reference to the jurisdiction of the circuit courts of the United States,
petition for removal into a federal court. The act of congress of March 3,
The jurisdiCtion of the federal courts in cases between citizens of different states arises primarily under the constitution of the United States, but this jurisdiction is conferred by grant from congress, which may grant or withhold jurisdiction over removal cases.
The right of a citizen to remove a case into a federal court is not a vested right of property. The rules of statutory construction when vested rights are concerned do not apply when the jurisdiction of a federal court to entertain a removal case has been cut off by act of congress.
On Motion to Remand to state court. George M. Buck, (Oharles S. May, of counsel,) for plaintiff. Spafford Tryon, (George S. Olapp, of counsel,) for defendant.
SEVERENS, J. This is a motion to remand a case which has been brought here by removal from the circuit court for Van Buren county. The suit was commenced by summons, which was served on the defend!lnt on the twenty-eighth day of December, 1886. He appeared in that court January 7, 1887. Declaration was filed January 22, 1887, and the defendant pleaded thereto on the nineteenth day of February, 1887. The petition for removal was filed May 2, 1887. The motion involves the construction of the act of March 3, 1887, in reference to the jurisdiction of the circuit courts of the United States, and the application of that act to cases then pending and in which plea had been already filed, but which were at that time removable under the previous a,ct of 1875. The substantial ground taken by the plaintiff in support of the present motion is that the law of 1887 repealed the law of 1875 in regard to the right of removal, and altogether supplanted it, and inasmuch as the law of 1887 did not give the right of removal, because the plea was already in, such right was gone; and that the result was to cut oft' the right of removal as to all cases in that situation, when that right rested on the sole ground of diverse citizenship. And anomalous as such a consequence is, I cannot see any escape from it. Section 6 of the act of 1887, in plain terms, repeals the act of 1875, and then goes on by proviso to make a saving of all cases then pendinK in the United States courts, whether brought there by removal or originally instituted in those courts. This express repeal, iaken in connection with the saving clause, seems to me to exclude the right to remove into this court any case upon the footing of the act of 1875, after the passage of the act of 1887, and that thereafter removals could only be had upon
the conditions of the later act, the third section of which ptovides that the petition must be filed at the time of pleading. It is the settled rule that if a law conferring jurisdiction is repealed without any saving of pending cases, jurisdiction over such cases is gone. !nmJ,mnce 00. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 514; U. S. v. Tynen, 11 Wall. 88; Railroad 00. v. Grant, 98 U. S. 398. And this rule applies with increased force where there is an express saving of some cases which would otherwise be swept away by the repeal. It is contended that the act of 1887 should not be construed retrospectively so as to cut off rights which had already accrued; and the familiar rule of statutory construction in that regard is cited and relied upon. Murray v. Gibson, 15 How. 421; Dash v. Van Kleeck, 7 Johns. 499. The rule is a good one when there is opportunity for its application. Under the act of 1875 it was held that pending cases were saved where the first term at which the trial could be had meant the first term after the passage of the act at which trial could be had, and it could apply to pending cases without departing from the litnguage of the act, or importing anything into it. There the fulfillment of the condition for removal would happen after the passage of the act. Remo'val Cases, 100 U. S. 457; and especially the Circuit Casell, cited at p. 473. Here the case is different. The condition, namely, the filing petition for removal at the time of pleading, does not and could not happen while the law of 1887 is in effect. This law can only be applied to cases coming within its provisions. It is argued for the defendant that the jurisdiction of the federal courts in cases between citizens of different states arises under the constitution of the United States, and the inference is drawn that the right of a non-resident to have his (lase tried by a federal court is a constitutional one, and that congress, while it might regulate, could not altogether take it away. If the premises were sound, the conclusion would very likely follow; but they are involved in a mistake. It is true that the primary source of jurisdiction in these courts is found in the constitution, but it is directly conferred through the ptedium of congress by grant thereof, and is conferred with such limitations and excepticns as the congress shall prescribe, when creating the courts and defining their authority. Many cases in the supreme court reports have explained this, and the doctrine was restated at the circuit in Harrison v. Hadley, 2 Dill. 229., Congress may, therefore, grant or withhold altogether jurisdiction over removal cases. The jurisdiction which it has power to grant it has power to withdraw. If the right of removal was a vested right of property, quite different considerations would apply. But it is not so. It is simply a privilege of having the case tried in some other than the state tribunals. There is no property in it. It is certainly true that this conclusion leaves a chasm in the law into which such cases as the present must fall; but that is a matter which was for the consideration of congress, and I do not see how the courts can remedy the difficulty without judicial legislation. , An order must be entered, remanding the case to the state court.
BOU!BKE, :Treasurer, etc." "'.
President, etc., and others.
(Circuit Court. S. D. N(fJl' .York. Dece.mber1, 1887.)
COURTS-FlnDEML ,OF MARCH 8, 1887. : The 'act ot. 'congress of March 8, 1887, concerning United States circuit courts. provIdes that no civil suit shall be brought by original process or prowhereof defendallt.is an inhabitant, but ceeding in any district except. that, where jurisdiction is foundel'l only on the fact that the actionls between citizens of different states, suit' shall be brought only in the district of the residenoe of either plaintiff or defendant. Held that.' under these provisions, the process of such courts will throughout tlle United States, except in the partioular cases, and to the extent provided by Rev. St. U. S. § 738·
.Hess for Bourke·. Roger .Ji''ostef, for Amison.
LACOMBE, J. This is an action brought against three defendants, residing I , in illinois, Tennessee, and Washington, D.C. Service has been., made npon ellch of them at his place of residence, and motionis now made to set aside service of process' on the ground that it is made without the circuit in which the action was commenced. In theaet of March, 1815, it was provided that no civil suit shall be brought before the circuit court against any person by original process or proceeding in any other district than that whereof he is an inhabitant, or in which. he shall be found at the time of serving such process or commencingsllch proceeding, except as thereinafter provided. In the act of March, 1887, the words "in which he shall be found at the time of serving such process or commencing such proceeding" are omitted. In the same section, however, there is inserted the following clause: "But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff 01' defendant." The plaintiff contends that the language of this clause not only confers jurisdiction upon the circuit court of either district over a suit wherein the plaintiff and defendant reside in different districts, but that it also allows process of such court to be served outside of the district. Whether the first oftbese propositions is or is not sound need not be now determined; whatever may have been the intention of congress as to the conferring ofjurisdiction, there is not sufficient warrant in the inserted words .for the claim. that the process of the circuit courts should henceforth run throughout .the United States, except in the particular cases, and to the extent already provided for in section 738. So extensive and extraordinarya grant of power is not to be spelled out from words which are susceptible of. reasonable interpretation without being held to effect 80 radical a. change in existing law·.