Mahone v. Manchester & Lawrence Railroad

111 Mass. 72 | Mass. | 1872

Gray, J.

The act of Congress of 1867, c. 196, authorizing suits pending in any court of a state, between a citizen of that state and a citizen of another state, to be removed, upon the petition and affidavit of the latter, at any time before the final hearing or trial, into the Circuit Court of the United States, has been held by the Supreme Court of the United States to be constitutional, and to include corporations as well as individuals. Railway Co. v. Whitton, 13 Wall. 270.

But, in order to transfer the case from the state to the federal court, the requirements of the act of Congress must be strictly and fully complied with. It is only upon such compliance, that the act declares it shall be “ the duty of the state court to accept the surety and proceed no further in the suit.” If they are not complied with, the jurisdiction of the federal court does not attach, the jurisdiction of the state court is not affected, and it is its duty to proceed with the trial or other judicial disposition of the case as if no attempt had been made to remove it.

The state court must therefore examine the papers so far as to be satisfied that the petitioner brings his case within the terms of the act of Congress, before declining the further exercise of jurisdiction over it. And a ruling of the Superior Court upon this, as upon other matters of law, may be revised by this court upon exceptions. Gen. Sts. c. 115, § 7. Such is the well settled practice of the courts of this Commonwealth in cases sought to be removed under this and similar acts of the national Legislature. Commonwealth v. Casey, 12 Allen, 214. Morton v. Mutual Ins. Co. 105 Mass. 141. Bryant v. Rich, 106 Mass. 180. So in Railway Co. v. Whitton, already cited, the Supreme Court of Wisconsin, upon appeal from an inferior court of that state, considered the question whether the case was within the act of Congress, and decided that it was not; and the Supreme Court of the United States, in overruling that decision, intimated no doubt of the propriety of the action of the state courts in entertaining that question. 18 Wall. 270 • S. C. 25 Wis. 424. See also Bigelow v. Forrest, 9 Wall. 339.

Among the conditions, which the act of Congress imposes upon the removal of the case, are that “ such citizen of another state ” shall file a petition for the purpose, and that “ he will make and file ” in the state court “ an affidavit that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court.” The act of Congress does hot, like our statute for the removal of actions from the Superior Court upon application of the defendant to this court for trial, authorize the affidavit to be made by the party or by any person in his behalf. See Gen. Sts. e. 114, § 8. Congress may well have thought it not too great a security against abuse of the power of removal, to require the party’s own affidavit to a fact of such a nature, and of which no further proof is to be made at any stage of the proceedings. Whatever may be the reasons, the words of the statute are explicit, and require the affidavit, as well as the petition, to be the act of the party. Anon. 1 Dillon, 298 note. Herschfeld v. Clarke, 11 Exch. 712.

When, as in this case, the petitioner for removal is a corporation, the petition may doubtless be signed and the affidavit made by some person authorized to represent the corporation. But the authority of any person assuming to represent it must appear. No officer of a corporation, unless specially authorized, has power to bind the corporation, except in the discharge of his ordinary duties. This doctrine has been applied by the Supreme Court of the United States and by the Court of Appeals of New York to officers of such large and general authority as presidents and cashiers of banks. Bank of United States v. Dunn, 6 Pet. 51. United States v. City Bank of Columbus, 21 How. 356. Hoyt v. Thompson, 1 Seld. 320. And this court has accordingly held that the president of a manufacturing corporation had no authority as such to begin an action in behalf of the corporation, or to bind it by his appearance in court. Ashuelot Manuf. Co. v. Marsh, 1 Cush. 507. Globe Works v. Wright, 106 Mass. 207, 216. See also White v. Westport Cotton Manuf. Co. 1 Pick. 215; E. Carver Co. v. Manufacturers' Ins. Co. 6 Gray, 214; Markey v. Mutual Benefit Ins. Co. 103 Mass. 78.

There can be no doubt that it is no part of the ordinary duties of the superintendent of a railroad to represent the corporation in any judicial proceeding ; and the bill of exceptions in this case expressly finds that Hildreth, by whom the petition for removal was signed, and the affidavit in support thereof made, had no authority except what was incident to his office as assistant and acting superintendent of the defendants. It is clear therefore that the petition and affidavit were not the acts of the corporation, and showed no compliance on its part with the requirements of the act of Congress.

As these considerations conclusively support the ruling of the Superior Court, it is unnecessary to examine the other objections of the plaintiff to the granting of the petition for removal.

Exceptions overruled.