5 F.2d 684 | E.D. Mich. | 1925
A petition has been filed herein in the name of the United States, on the relation of the above-named defendants, praying for a removal of the above-entitled cause from a state court to this court under section 33 of the Judicial Code, as amended (section 1015, West’s United States Compiled Statutes), on the ground •that said defendants have been sued in said state court on account of acts done by them in the performance of their duties as federal officers within the meaning of said section.
The petition states in substance.that for the past year the defendants have occupied
Section 33 of the Judicial Code, as above cited, provides in full as follows:
“When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court next to be holden in the district where the same is pending upon the petition of such defendant to said District Court and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit and, together with a certificate signed by an attorney or counselor at law of some court of record of the state where such suit or prosecution is commenced or of the United States stating that, as counsel for the petitioner, he has' examined the proceedings against him and earefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office and shall be filed in said office. The cause shall thereupon be entered on the docket of the District Court and shall proceed as a cause originally commenced in that' court; hut all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. When the suit is commenced in the state court by a summons, subpoena, petition, or any other process except capias, the clerk of the District Court shall issue a writ of certiorari to the state court requiring it to send to the District Court the record and the proceedings in the cause. When it is commenced by capias or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of ha-beas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court or left at his office by the marshal of the district or his deputy or by some other person duly authorized thereto; and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judgment therein in the state court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the state court can be obtained, the District Court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said District Court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant.”
Section 28 of title 2 of the National Pro
It will be noted that the above-quoted statute does not in terms require nor provide for the entry of any order of removal by the District Court in the cases to which such statute is applicable. It was apparently the intention of Congress to make it the duty of the clerk of the District Court, upon the filing of the petition there referred to, to “thereupon” enter the cause on the docket of the District Court, which cause should thereafter “proceed as a cause originally commenced in that court.” The clerk has already performed this duty, as appears from the files and records of this cause and from the title thereof as endorsed upon the petition filed. It seems clear that this cause is, by operation of this statute, now automatically and without the entry of any specific order to that effect, pending in this court, under the provisions of this statute. The petition itself (all of the allegations of which have been above stated substantially in the exact language of the petition) does not pray for an order of the court, but merely for a removal of the cause. There appears, therefore, to be no necessity for the court to make any order at the present stage in the proceedings under the statute.
Section 37 of the Judicial Code (section 1019, West’s United States Compiled Statutes), provides as follows:
“If in any suit commenced in a District Court, or removed from a state court to a District Court of the United States, it shall appear to the satisfaction of said District Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said District Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said District Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.”
It was evidently the intent and design of Congress to provide, by section 33, a summary proceeding for the protection of federal officers by the automatic removal to the federal court of suits brought against them in the state courts, without the delay which might be incident to a regular judicial hearing and decision on the right of removal, and then to provide, by section 37, an opportunity for such a hearing and decision in the manner specified in said section. State v. Sullivan (C. C.) 50 F. 593; Mutual Life Insurance Co. v. Langley (C. C.) 145 F. 415; Atlantic Coast Line Railroad Co. v. Bailey (C. C.) 151 F. 891; McAlister v. Chesapeake & Ohio Railway Co., 157 F. 740, 85 C. C. A. 316, 13 Ann. Cas. 1068 (C. C. A. 6).
Applying these statutory provisions to the present case, I reach the conclusion that this is not the proper time or stage of the proceedings for a consideration or disposition of the questions involving the right of the defendants to have this cause tried in this court. Any such questions, therefore, are reserved for consideration if and when a motion to remand is made under the statute.
The clerk of this court will perform his duty under the applicable statutes.