91 F. 1 | U.S. Circuit Court for the District of Northern California | 1899
This is an action to recover damages in the sum of $50 for the alleged neglect of the defendant, as a, common carrier, to receive and transport a certain package of photographs cf. fered and tendered by plaintiff for conveyance and transportation. The action was originally commenced in the justice’s court of the city and county of San Francisco, and was transferred to this court on the petition of the defendant, alleging that it is a corporation organized and existing under the laws of the former territory and present state of Colorado; that the cause is of a civil nature at law, arising under a law of the United States providing internal revenue, to wit, under the act
It will be observed that it does not appear from the plaintiff’s statement of his cause of action that it is one arising under the constitution, laws, or statutes of the United States, and that more than §2,000, exclusive of interest and costs, is involved. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34; Walker v. Collins, 167 U. S. 57, 17 Sup. Ct. 738. Nor does it appear from the petition for removal that the suit is between citizens of different states, and more than §2,000, exclusive of interest and costs, is involved. Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518; Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. 692. The court has suggested to counsel that the circuit court has no jurisdiction of this case, for the reason that no federal question is stated in the complaint, diverse citizenship is not alleged, and the amount involved is not sufficient to give the court jurisdiction. But the defendant contends that the court has original jurisdiction of the case, under section 629 of the Bevised Statutes, which provides, among other things, as follows:
“See. 629. The circuit courts shall have original .-jurisdiction as follows: * * * Fourth. Of all suits at law or in equity arising under any act providing for revenue. * * *”
It was held in Ames v. Hager, 36 Fed. 129, that this clause of section 629 of the Revised Statutes was not repealed by the act of March 3, 1875, or by the act of March 3, 1887; and, being in force as to the original jurisdiction of the circuit court, it is claimed that the court has the like jurisdiction by removal over cases arising under the internal revenue laws, without regard to the amount in dispute. The case of Craw'ford v. Hubbell, 89 Fed. 1, is cited in support of this claim; but I do not understand that the court in that case held that section 629 of the Revised Statutes conferred jurisdiction by removal of a case arising under the internal revenue laws, where the amount in dispute was less than §2,000. From an examination of the record of the case furnished to the court, it appears that the action was in equity to restrain the defendant, not only from exacting increased charges for stamp duties on specified shipments, but from continued exactions on that account which would, unless prohibited by the court, result in a multiplicity of suits; that the amount involved, exclusive of interest and costs, exceeded the sum and value of §2,000; and, from plaintiff’s own statement of his cause of action in the complaint, it arose under the constitution and laws of the United States, to wit, under the internal revenue laws of the United States. This was sufficient to justify the court in sustaining the removal. The act of March 3, 1887 (24 Stat. 552), as corrected by act of August 13,1888 (25 Stat. 433), is the general law on the subject of the removal of cases from the state courts to the United States circuit courts, and must be looked to as furnishing sub
“Any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made -'under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. * * *”
In the preceding section (section 1) the circuit courts of the United States are given original jurisdiction—
“Of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, * * * or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * *”
The original jurisdiction of the circuit court, on the facts in the present case, cannot be found in the provisions of this first section; and, if the original jurisdiction of the court cannot be maintained under that section, it is clear that the right of removal does not exist under section 2 of the act. The fact that the court might have original jurisdiction of the case under clause 4 of section 629 of the Revised Statutes does not aid the claim of a right of removal under this act, and my attention has not been called to any other act that gives the right of removal in a case of this character. The suggestion of the court in Vinal v. Improvement Co., 34 Fed. 228, that “it would seem to be the reasonable meaning of the second section in the amending act [March 3, 1887], like the second section of the original act [March 3, 1875], to permit a defendant to litigate in the circuit court, by a removal, any suit which he could litigate there if it was originally commenced in a circuit court,” has reference to the question of jurisdiction over the person of the defendant; the court holding that the word “jurisdiction,” as used in the second section of the act of March 8, 1887, “refers to jurisdiction over the subject-matter, to the general jurisdiction of circuit courts, and means a jurisdiction which would enable any circuit court to entertain and determine the controversy, if the parties were before it.” It is certain that the jurisdiction of the circuit court on removal is not clear in this case, and it is only when the jurisdiction of the court is clear that it is justified in assuming cognizance of the cause on removal. Fitzgerald v. Railway Co., 45 Fed. 812; Hutcheson v. Bigbee, 56 Fed. 329; In re Foley, 76 Fed. 390; Coal Co. v. Haley, Id. 882. The fact that the circuit court may have original jurisdiction of a case is not sufficient to justify the court in retaining jurisdiction on removal. The right of removal is wholly statutory, and, unless some provision of law can be found for the removal of a particular case, the state court is not ousted of its jurisdiction by unauthorized proceedings taken on that behalf. Insurance Co. v. Pechner, 95 U. S. 185; Fidelity Trust Co. v. Grill Car Co., 25 Fed. 737. Let an order be entered remanding this case to the court from whence it was removed.