J,l'VERM.OTT 'II. CHICAGO
N. W. RY. CO.
& N. W. Ry.
(Circuit (Jourt, No D. [(}'lJ)a, E. D. May 8, 1889.)
REMOVAL OJ!' CAUSES-LocAL PREJUDICE.
The right to a removal of a cause under the local prejudice clause of the act of August 13, 1888, § 2, is not dependent on the amount involved, there being no provision in relation thereto in Buch clauBe.
At LaW. On petition for removal because of prejudice and local influence. Action by John McDermott against the Chicago & Northwestern Railway Company. Hubbard & Dawley and Henderson, Hurd, Daniels & Kie8el, for petitioner.
SumAS, J.The above-entitled cause is now pending in the district .oo'Qrt of Clinton county , Iowa; the damages claimed'therein being the
sum of $499, the plaintiff being a citizen and resident of the state of Iowa, and the defendant a corporation created and .organized under the taws of the state of lllinois.A petition asking the removal of the action into this courton the ground of prejudice and local influence has been filed on behalfofthe'defendant, and the showing made in support thereof is sufficient to justify the granting the order of removal if the court -can thus take jurisd,iction of a cause involving no more than $499. The case, therefore, presents the question whether, under the provisions of the act of August 13, 1888, the right of removal on ground of prejudice and local influence is dependent upon the amount involved in the controversy. '. In case of Fales v. Ra1lwayOo., 32 Fed. Rep. 673, t had occasion to construethepro\-jsions of the act of March 3, 1887. and in so doing held that there was no limitation by way of amount upon the right of removal upon the ground of local influence and prejudice. Since the hearing in that case the act of March 3, 1887, has been supplanted by that of August 13, 1888, passed for the purpose of freeing the act from the errors and mistakes that had been incorporated in the enrolled bill, and I have raexamined the question as presented by the phraseology found in the amended act', and in the light thrown thereon by the cases since reported. The decisions in the circuits are not in harmony. The leading decision holding adversely to the right of removal unless the amount involved ceeds$2,OOO, is that rendered by Mr. Justice HARLAN in Malone v. Rail'foad Co.; 35 Fed. Rep. 625, a case pending in the circuit court for North Carolina. It will be borne in mind that in section 2, art. 3, Const. U. ,S., which defines the extent of the judicial power that may be exercised by the courts of the United States, there is not found any limitation by way of amount. When congress, thflrefore, provides by act 'for the e.xercise by the circuit courts of jurisdiction over controversies coming 'within the constitutional grant of power! such jurisdiction will exist as to all such controvt:rsies, regardless of the amount involved therein, unleSli the act providing for the exercise of the jurisdiction provides a v.38F.no.7-34
as to the sum in controversy. From time to time congress has affixed suc:ha limitation, though varying thenmoluU, to some of the controversies of which jurisdiction was conferred upon the circuit courts, but it is a factthat,beginning with thejudiciary1IOOto1' il:789, and coming down to and including the act of August 13, 1,888, there has never beep a time .when States courts have not had' jl!ristliiction olf ':tnap,y classes of cases, ir.respective of the amouD..t involved therein. The fixing a limitation of amount as an element in the right to entertain jurisdiction of a cause has been and is merely a matter of expediency. 'Incertain ·cl!l.sses of cases' a litnitlition has betm·liied, in othl:lTS (it/has ,not, liS 'it has from time to'time bEl'en deemed wise. Whenevel'it deems best, congress can increase the limiting amount, or may decreaseW,or - ' J " , '." ' ,,', , '\ .entirelyWrogate ft',' ' , ; The first section of the act of 1888 defines the original jurisdiction of theclircuit colntai -and" S0 (artis,civil suits. are concerned, the c;:auS6S&>g,nir.a-blein these by proceedings' are grouped under·five . classifications, ,to-wit:' (l},Controversies (tosing .under; .· the 'constitution, laws, or treaties ,of the United .inexoeas oL$2,OOO; (2) controversies in ,whieh theUnitedS.tates.is;:a party plaintiff, 'and involving conttot.ersies betweencitizens.of different states, involving a!sutnexcMdibg 88,ooQ; (4:). controv.ersies between citizens of the, same state, based 1tP01) ,cla.irns ito land .arisingunder grants from.differentstates;·.(5) contrQvellSies 'tween. citizens'of:'astate and foreign, states, citizens,rolJsqbjectsjinoolving ,a sum in excess ,of $2,000. In theseifiye cIWlsitlclttions are found. twc> .general 'grounds'of,jilrisdictiou,ti. e.,: anddiv:etae::cititen.. ship. Jurisdiction of cases arising u'nder the first and fourth djvisiolllS as bMedupdnthe and ,courts' dftbe'rUliited' ,statel! rbave rega-rdlells oftll'e citizenship.Qf. the adv£lrsal1y ·!p)aTties. .cognizance lOases in.. which tn.a States..is the .pa11y· plaintiff lUay be: said. :t() aall, under category, "as! it is difficult "to,conceh:e of a' case, ito .which the would be pla1nHff,.,bilt·,which would not, arise .lllllderthe qotnlt;.tution, IaWSj;or treaties of the United ,States. ,.'Jurisdicthe third and fifth divisions is Jbased-upon have defined the classes of cases .M which origiooLju:dsdiption is coWerr.ed:upon the circuit courts by the lfirat section: of:;the a.ct ofl888. The,provlsions, thereof lUUst be borne in mind in constr,uing the second section, 'providing for the remo'Val' of .¢auses j because is made thereto. The first of the .:second when,theright of removal exists in casesansibg un.der thecoU$tjtutiqn, la;wst,o,rtreatlesQf the United States ,1 ttnd in :effe'ct or;4efendants, regardless of theirtesideqce, .u:la.y; nature provided: it might halve. circuitcaurt under th.e terms of the firstsec,tion k that is .4:osay,itnlustYarise nndertbe constitution, laws. oftl;1eUnited iState81.:a:nliin-\lolve"over<,$2.;,OOO, exclusive ofinteoost'ao.dcosts. : The ,aoocmd; c1o.useof tthe section defines when the right of ;removal exists .in under'theprov,isions of the first sect:i:on,orjg1<:;,1,..
inal jurisdiction'is confan-ad:upon the circuil courts by reason of diverse citizenship, including cases between a citiZen' of a state and foreign states; or the citizens or: subjects thereof, the right, of removal being conferred only upon non-resident defendants in cases, involving over $2,000. ,The third clause deals with causes im'olving a separable controversy, and, like the two preceding clauses, express reference is therein: made to the other provil;ions oftha act in defining the classes of suits in which a removal may be had. It is clea-rly evident that congress intended that the first section and the first three clauses of the second section of the act should be read together, and by the terms thereof provision is made for the exercise of jurisdiction over the cases enumerated, either ,by suit originally in the United State courts, or by removal thereto from the state courts. In all cases coming within the provisions of the first section the plaintiff had the option, when about, to .bring suit, to begin originally in the United States court.,Should he, however, choose to enter the suit -in a sta,te court, then the defendant or defendants may under certain circumstances, invoke the jurisdiction of the United States court by removing the case thereto. ,If jurisdiction exists in the federal court by reason of arises under the constitution, laws, or treaties of the' United States"and involves over $2,000, the defendant or defendantl!l,regardless of their citizenship or residence, rna)' remove the case into the United States court. If, however, jurisdiction of a given cause in' the, federal court exists only by reason of the diverse ci of the adversary Pltrties, then, under the second clause, the right of removal is conferred only upon non-resident defendants. The liulitations on thejurisdiction()ftheUnited States court found in thefrrst section are, .by reference thereto, incorporated into the named clauses ofJheBeeond section, and for an obvious reason. The cases covered thereby ar.e of the same nature, no !;lew element entering into the same, and therefore the limitations placed \by congress upon the exercise of orig;inal jurisdiction are repeated when providing for the exercise;of jurisdiction by removal.. If ordinarilyitiBbest to limit the original jurisdiction to cases involvinp; over $2,000, the same limitation should apply in like cases to acquiring jurisdiction by a removal of the case after its commencement in a sta,tecourt.When we reach the fonrth clause of the section. how,ever, we find that it deals with a class of cases involving a new element, to-wit, the existence of prejudice and local influence, and when dealihg with thiaelement we should naturally expect a difference in the limita,tiona placed upon the right to invoke the jurisdiction of the United States courts. We find in· the clause no reference to the first section or precedingport1oils of the act. AlleBuch are carefully omitted. The declaration is that" where a suit is now pending, 'or may be' hereafter. brought, in any stAte court, in which there is a controversy a citizen of the which the suit is brought and a citizen of another state, any :defendant bl:ingsuchciti2:en of another state may suit,," etc.:Tne definition of the clasBof cases' intended to be embraced within given in the clau'8eitself, without reference ftoj Ot limit&this tionth" ,iliac provisiollS'ofqthe'fir$Lsection.l The one,clasBof ca8es'ro
which the clause is applicable is that of suits wherein is involved a controversy between a citizen of the state wherein suit is brought, and a defendant who is a citizen of another state. In such cases, if it is made to appear that, owingto prejudice or local influence, the defendant, who is sued out of the state of which he is a citizen, cannot obtain justice in the state courts, then such defendant may for this l'eaS(ln remove the suit at any time before final trial. If, in a given case, it is made to appear that a citizen of a state has been sued in a state of which he is not a citizen, and that, owing to prejudice and local influence, he cannot obtain justice in the state court, upon what grounds can the right of removal be refused to such a defendant, if he applies for such removal before the final trial in the cause? If all the requirements in the fourth clause contained are fully met, upon what theory can the court impose other conditions as prerequisites to granting the order of removal? It will not do to assume that congress intended to restrict the right of removal to such cases only as might have been brought originally in the .,United States circuit court under the provisions of the first section of the act, for since the adoption .of the act of 1789, down to the date of the present statute, it has been and is the fact that jurisdiction by removal could· be acquired by the circuit courts in cases which could not be originally brought in such courts. Green v.Custard, 23 How. 484; City oJ Lexington v. Butler, 14 Wall. 282; Olaflin v. Immrance 00., 110U. S. 81, .3 Sup. Ct. Rep. 507. It never, therefore, has been the policy of the .legislation on this subject to make the boundaries of jurisdiction original and jurisdiction by removal absolutely coincident, and no support can be found in past legislation for the assumption that congress intended to restrict the rip;ht of removal in all cases to such controversies as might have been originally brought in the federal courts. In the case of Malone v. Railroad Co., fJUpra, it is said that, constru·ing all the clauses of the act of 1887 together, it is clear that the limitation of amount applies to removals on the ground of prejudice or local ·influence. What is meant by this is that, if we import into the fOU,fth ,clause provisions not found therein, we can sllstain the conclusion that, to justify a removal on the ground of prejudice, the cause must involve an amount exceeding $2,000. Certainly, if we construe the fourth clause by its own terms 'only, no such restriction can be found therein .stated. Can we rightfully assume that it must have been the intent of congress not to permit a removal of a cause j()r .any reason unless it involved .over $2,000, arid then attempt to fit the language of the fourth clause to .this assumed intent,by interpolating therein the provisions of other sec·tions -of the act which are not referred to in the clause itself? When ·the clause is susceptible of ,a reasonable construction as it stands, and ':full force can be: given to all its provisions as written,resulting ina .con.clusion in harmony with the previous legislation upon the general sub;'ject, why resort to arule Of construction which requires the addition to ;aspecific clause of the statute. ofprovisions carefully repeated.in other ·clauses; but'omitted in. the fourth clause? We have no ground.fodnderring that such _ omission, was .or. not. intentional, .nndcer-
M'DEll.MOTT fl. CHICAGO & N. W. RY. CO.
tainly, if congress intentionally omitted in the fourth clause all reference to the preceding section of the act, courts are not justified in holding that such reference was n.evertheless and that the clause ofthe act must be construed as though it wntained that which c.()ngress had carefully excluded therefrom. As is said by the supreme court in Lake County v. Rollins, 9 Sup. Ct. Rep. 651: "To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers 'of the instrument have plac.pd them. If the words convey a definit4;l meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that; meaning, apparent on the fac!' of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. * * So, also, where a law is expressed, in plain and unambiguous terms,. whether those terms are general or limited, the legisllj,ture be. inte.Qdedto mean what they have, plainlyexpressed,and room is left for construction." . ' , Comparing the structural·form of the act of 1875 with that Qftheact of 1888, there will be found a radical difference therein. In, the fooner act we,.findin both the firstand second sections thereof'S gether iIi'()ne sentence in each section of the several classes.oLdases of which jurisdicti<:>n, can be had,either originally or by removal, in. the Unitedl:3tates circuit courts under ,the terms ofthat:act. Iuthe act of 1888; on the contrary, the seyeri\l clauses of the second section. are disand the form thereof clearly indicates that eachJsto be tinct clause is intended to indic$.te by·its own so rea(l terms,whether it is to be read in connection with any other section or elauseofthe actor not. The right of removal on the ground of prej'Jdice was first conferred by the act of 1867. In the case of Johnsan v. Monell, Woolw. 890, Mr. Justice MILLER, in construing this act, held that the act worked important changes in the law on this subject, and that in determining when a removal under it could be had, its proyisi.ona Were not limited by the previous statutes. In Gaine8 v. Puentes, 92 U. S. 10, it was held that the act of 1867 ",cov,ered every possible 98se involving controversies between citizens of the state .where the suit Wl,Ill brQQgbt and citizens of other states, if the matter in dispute, exclusive of costs, e;l\<;eeded the sum of $500. ,. * * Th.eonly test was, did it involve a controversy between citizens of the state and citizens of other states, and did the matter in dispute exceed a specified amount?" There is nothing in the subsequent legislation on this subject that changes the rule of construction thus applied to the act of 1867. 'l'he act of 1875 did not deal with this particular class of cases. When, therefore, the act of 1888 was adopted, we are not justified in holding that the rule previously recognized was intended to be changed, unless such is the fair, and natural import of the language used in the act. So far from the terms of that act indicating any such purpose it would seem .as though congress had carefully framed the act so as to conform to the recognized construction of the previous statutes, and the only test now prescribed for determining whether the case belongs to the class that are
removable on the ground of pllejudiceis, does the suit involve a colltroversy between a citizen of the state wherein it'is pei?-ding and a ant who is a citizenofahother state? It is urged that this construction opens the door to a removal, under the given circumstances, of a case from any state court regardless of the amount involved, and that such could not have been the intent of congress. In Gaine8 v. Fuentes, 8upra, the supreme cpurtexpresi:lly holds that under the act of 1867 "it mattered ,not whether the suit was brought ina state court of limited or gen-' eral jurisdiction." The abrogation' of the previously existing limitation of $500 as the amquptinvolved was' a matter solely for congress to tennine. There can be no question that'thislimitation of $500 is abrogated, and none other can be claimed to exist except that of $2,000. Can it be said that it was unwise for congress to enact that where a citizen of a state is sued in a state other than that ofwhich he is a citizen, and he can make it appear that by reason of prejudice or loca.l influence he cannot obtain justice in the state courts, he should have the right to remove the suit into the federal courts? The realp'urposeof such legislation is to afford parties an impartial tribunal, and the ground for the removal is not the amount in controversy, but the existence of local prejudice affecting the rights of a. non-resident defendant. Whether a defendant; under such circumstances,;shol1ld be compelled to remain in the state courts simply because thtl amount involved did not exceed a given sum was for congress todeternline, and the construction of the act ofcongress cannot be controlled by what the court or counsel might deem to be wisdomorull\visdom iDsuch legislative action. If,however, this line of argument is resorted to, certainly much can be advanced in support of the propriety of the rule that,"where udice or local influence is shown to exist,adefendatlt who issued in a state other than that whereof he is a oitizen, should have the right .to remove the cause, regardless of the amount invol\Ted. The conclusion reached is that the statute, of 1888 repeals the third clause of section of.the Revised Statutes, and enacts in lieu thereof the fourth clau8e ofthe second section of the act o(t888, 'and that uuder its provisions the amountinvolved is not an eJ'Jment itl determining the removability of a suit. It follows that the petition for removal of this cause is granted, and the proper order will be entered. '
. DENNISON tI. BROWN.
DENNISON V. BROWN·
. (Oircuit (JO'/lrl,}:r.
:po NfIIJJ York.
April 18, 1889.)
'L REMOVAL OF C.iUSES-LobAL PREJUDICE.
Uriderthe)act of March 8.1887, providing for a removal when it shall be to the circuiteonrt that from prejudice or local influence defendant wjn not be able to obtain justice state court. thll questi()n '. whether tliereis prejudice, etc., is open tohiqUlry, and may be det.ermined from the evidence produced by both parties 011 motion: to remand. " 2, SAME. An affidavit that defendant has no acquaintance in the county in which the trial in the state court will be had; that plaintiff is well known there as a lawyer and politician, having lived and practiced law at the county-seat many years, and having been a candidate for the office of attorney general of the state,-does not make a case for removaL
On Motion to Remand. James A. Denri.i8on; forplaintifl'. Charles A. 'l'alcott, for defendant.
'J .This suit was removed from the UpOOl the "petition ofthedefendant, door the cause was at issue,'accompanied by an defendant setting forth his belief .tpat f:rom andJocaUnfluence he would not be able to obtain justice such ':State 'OOur,t.>The·affidavit I;\tatesas the 'reasons forsuch belieftQlttthe Qefendabt, whB Ii state. has nO 'in: in which the case will be tried, if tried in the state court, and that the plaintiff is well known there as a lawyer l1nq.,as.l'Io poFtician, having ; tP.fl ;poqnty-seat. D;lany. years, .practiced law and been a fpr the, oflice of attorney general of the state. The presen,t thel>uit proceeds upon the ground ,ef. the does. not,staW· facts it appear that· froJD, . ptejudice influence he will not be able to. obtain justiCe .. the state court, and is. supported by affidavits in .rebuttal of the defendapt's ". ' .. . . · . .The of}4lilJch ,3, 1887 ,relating to. jurisdiction of th.e cirquit a,judicious in the p.rpvisionof the third PAracoprt. gi:aIlh 6.39, Rev.· St. U. S., by whi.ch in a ,zen ofthes1;a.te and a citizen of another state the defendant remove ,and: 'Qondition of .removal is .110 longer the filing an.l1ffi!lavit ,"4as reason to and d()es believe" o:r,from Ipc.a1 influence he will not be able. t()obtain .Jl1StiCP. but ,he must now make, it" to "to, a c:u;e exists! Tl}e phraileology of . WAS to render it at lea,st doubtful whether the adverse party could ,controvertJhetruth or wl},ether it was 'necessary forth the facts sufficignt grounds is '!P1a,inly! C!r9ijjt fllctSa:ppear th!'lexYs,oollce :gf ... ' . . '. .. . '.' .