134 F. 134 | U.S. Circuit Court for the District of Western Texas | 1904
It is conceded by counsel representing the respective parties, and the motion to remand is based upon the theory, that the purpose of the suit is to establish a joint liability against the two defendants, the one being a Texas corporation, and the other a corporation deriving its charter, and hence its corporate powers, from acts of Congress. It is therefore apparent that the cause is not removable under either clause 2 of section 2, or clause 3 of section 2, of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 433 [U..S. Comp. St. 1901, p. 508]. It then becomes necessary to determine the question of removability under clause 1 of the section mentioned. That clause provides as follows:
“That 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”
Touching the right of removal under clause 1, in cases involving the proper jurisdictional amount, the following propositions may be regarded as settled law, since the Supreme Court has definitely determined them: (1) Where a corporation, deriving .its powers from an act of Congress, is sued alone in a state court, it is entitled to have the cause removed to the Circuit Court on the ground that the suit is one arising under the laws of the United States. Texas & Pacific Railway Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; Same v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319. (2) Where there is no separable controversy, as between the plaintiff and the removing defendant, but the ground of removal is that the cause of action arises under-the Constitution or laws of the United States, the . suit can be removed only on the petition of all the defendants. Chicago, Rock Island, etc., Ry. Co. v. Martin, 178 U. S. 245, 20 Sup. Ct. 854, 44 L. Ed. 1055.
Prior to the case last cited the ruling of several of the Circuit Courts seemed to authorize the removal of a cause under clause 1, § 2, although there was not a joinder of all the defendants in the petition. See Southern Pacific R. R. Co. v. Townsend (C. C.) 62 Fed. 161; Seattle & M. Ry. Co. v. State (C. C.) 52 Fed. 594; Hunter v. Conrad (C. C.) 85 Fed. 803; Lund v. Chicago, R. I., etc., Ry. Co. (C. C.) 78 Fed. 385; Landers v. Felton (C. C.) 73 Fed. 311. The ruling thus made found justification in Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442; but Martin’s Case,
In the present case both defendants have joined in the petition to remove. But it is objected by counsel for the plaintiff that the federal question affects only the Texas & Pacific Railway Company, and hence, notwithstanding the two defendants have united in the petition, the cause is not removable. The answer to the objection will be found in the fact that the cause of action as declared on by the plaintiff is joint, the purpose of the suit being, as before stated, to establish a joint liability against both defendants. Any suit, whatever its nature, brought against the Texas & Pacific Railway Company alone, would be one arising under the laws of the United States, and the same result would follow where the object of the suit was to establish a joint liability against that company and other parties defendant. In such case the federal question necessarily affects both parties and permeates the entire suit, entitling it to be removed where all the parties unite in the petition. Upon this point it was said by Judge Taft in Landers v. Felton (C. C.) 73 Fed. 314:
“The question here arises whether an action brought against the receiver of a United States court and others who are citizens of the same state as that of the plaintiff, to establish a joint liability of all the defendants, is a suit arising under the laws and Constitution of the United States. I do not see how it can be otherwise. No separate liability could be asserted against the receiver, as receiver, except under the laws of the United States. If no separate liability could be asserted against him except by virtue of those laws, certainly no joint liability with another can be asserted against him except by virtue of the same laws. Therefore the joint liability of the defendants with the receiver arises under the laws and Constitution of the United States. If the plaintiff wished to sue the other defendants without joining the receiver, he had his election to do so, because the liability of joint tort feasors is also several. He might, therefore, have maintained his' action against the resident defendants in a state court, without any possibility of removal to a federal court. He elected, however, to join the resident defendants with a person against whom he could establish no liability, in the capacity in which he sues him, except by virtue of the laws of the United States. Therefore the joint cause of action which he asserts against all the defendants must find its sanction in the federal statutes. Hence the cause of action is removable.”
See, also, Lund v. Chicago, R. I., etc., Ry. Co., supra.
This question has been otherwise decided by the Court of Civil Appeals of Texas for the Fifth District in Texas & Pacific Railway Co. v. Huber (Tex. Civ. App.) 75 S. W. 547. With due deference to the learned judges composing that court, the writer is compelled to dissent from the views expressed in the Huber Case upon the subject of removal of causes.
For the reasons stated the motion to remand should be overruled, and it is so ordered.
