74 F. 419 | U.S. Circuit Court for the District of Utah | 1896
This suit was instituted in the Third judicial district court of Utah territory, county of Salt Lake, on the 4th day of December, 1895. The territory of Utah became a state by virtue of the proclamation of the president of the United States made on the 4th day of January, 1896. By an act of congress entitled “An act to enable the people of Utah to form a constitution and state government and to be admitted into the Union on an equal footing with the original states,” the convention therein provided for was empowered to provide by ordinance “for the transfer of actions, cases, proceedings, and matters pending in the supreme or district courts of the territory of Utah, at the time of the admission of the said state into the Union, to such courts as shall be established under the constitution to be thus formed, or to the circuit or district court of the United States for the district of Utah, and no indictment, action, or proceeding shall abate by reason of any change in the courts but shall be proceeded with in the state or United States courts according to the laws thereof respectively.” Pursuant to this delegation of power, the people of Utah held their convention, and adopted a constitution. The seventh section of article 24 of this constitution ordained as follows:
“Sec. 7. All actions, eases, proceedings and matters pending in the supreme and district courts of the territory of Utah, at the time the state shall be admitted into the Union, and all files, records and indictments relating thereto, except as otherwise provided herein, shall be appropriately transferred to the supreme and district courts of the state respectively; and thereafter all such actions, matters and cases shall be proceeded with in the proper state courts. All actions, cases, proceedings and matters which shall be pending in the district courts of the territory of Utah at the time of the admission of the state into the Union, whereof the United States circuit or district courts might have had jurisdiction had there been a state government at the time of the commencement thereof" respectively, shall be transferred to the proper United States circuit and district eourt^ respectively; and all records, indictments and proceedings relating thereto shall be transferred to said United States courts. Provided, that no civil action, other than causes and proceedings of which the -said United States courts shall have exclusive jurisdiction, shall be transferred to either of said United States courts except upon motion or petition by one of the parties thereto, made under and in accordance with the act or acts of the congress of the United States, and such motion and petition not being made, all such cases shall be proceeded with in the proper state courts.”
It is conceded by defendant's counsel that it did not file its petition for removal to this court within the time required by said section; but the defendant contends that, notwithstanding such concession, the suit was properly transferred to this court, under the provisions of the enabling act and constitution already quoted. It is clear to my mind that the act of March 3,1887, concerning removal of causes to this court, has no controlling application to the matter of transfers under the enabling act and constitution. The manifest intention of congress and the people of Utah was to make provision by which parties to actions pending at the time of the change to statehood might avail themselves of either jurisdiction, state or federal, to which they would have been entitled had there been a state government (and necessarily state and federal courts) at the time their suits w'ere instituted. The constitution refers to any actions ••pending,” and provides for their transfer. The removal act of March 3, 1887, refers to cases which have1 been pending only up to the day an answer or plea is required. The constitution confers the right to transfer upon either party to a suit. The removal act confers the right of removal upon (1) defendants only; and (2) upon such defendants as are residents of a state other than where the suit is brought. Again, the situation of parties to a suit instituted in a territory before its admission, as a state, to the Union, is unique, — - entirely different from ttie situation of parties to suits instituted in a state. By the provisions of the act concerning removal of causes, reference is made to the laws of the state at the time suit was brought; a defendant, must he a citizen of a state different from
“The courts of the United States, inferior to this court, having no jurisdiction except as conferred by congress, congressional legislation is necessary to enable those courts, after the admission of the state into the Union, to take jurisdiction of the cases previously commenced in the courts of the territory, and not yet finally adjudged. And such legislation has been so construed and expounded by this court as to give effect, as far as possible, consistently with its terms and with the constitution of the United States, to the apparent intention of congress to vest in the courts of the United States the jurisdiction of such cases, so far as they are of a federal character, either because of their arising under the constitution and laws of the United States, or because of their being between citizens of different states.’’
According to tbis authority, effect should be given to the apparent intention of congress, so far as possible. Aow, what is it? Manifestly, that all cases over which the federal courts have exclusive jurisdiction shall pass by transfer at once to the proper United States court, and that all cases over which the federal courts have concurrent jurisdiction with the state courts shall, at the option of either party, be so transferred to the proper United States court. As evidence of the exercise of such option, a motion or petition is required to be filed in the state court exercising the other concurrent juris