79 F. 449 | 8th Cir. | 1897
after stating the case as above, delivered the opinion of the court.
1. The cause was properly removed to the United States circuit court. The right of removal in this case did not depend on the act of March 3,1887, in relation to the removal of causes from the state to the federal courts, which is inapplicable to suits pending in the courts of a territory. Such right of removal rested entirely on the provision made by congress for the special purpose of removing into the federal courts such causes pending in the territorial courts of Utah, when such courts should cease to exist, on the admission of the new state, as might, conformably to the constitution of the United States, he removed to the federal courts for trial. By the act of congress enabling the people of Utah to form a constitution and state government, the convention provided for was empowered to provide by ordinance “for the transfer of actions, cases and proceedings, and such 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 he 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 authority, the convention, in the seventh section of article 24 of the constitution of Utah, ordained:
“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*451 state into the Union, whereof the United States district or circuit courts might toe had jurisdiction, had there been a state government at the commencement thereof respectively, shall be transferred to the proper United Slates circuit and district courts respectively; and all records, indictments and proceedings relating thereto, shall be transferred to the said United States courts. Urovided, 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 o-f the parties thereto, made under and in accordance with the act or acts of congress of the United States; and such motion not being made, till such cases shall be proceeded with in the proper state courts.”
Under these provisions, civil actions pending in the territorial district courts when the state was admitted, of which the United Htates courts had not exclusive jurisdiction, would remain in the state courts, unless a party thereto should move or petition for the removal, and the motion or petition was to he made under and in accordance with the acts of congress. This means that the application and proceedings should, in form, conform to similar proceedings under Hie acts of congress, and show the jurisdictional facts which would warrant the assumption of jurisdiction by the federal court. It does not mean that the application for removal' must he made before pleading by the defendant, or at any specified time before trial. The language used covers all cases so pending in the territorial courts “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.” The provision should be so construed as to give effect both to the intention of congress and the convention. Koenigsberger v. Mining Co., 158 U. S. 41, 15 Sup. Ct. 751. To hold that no case pending in the courts of the territory of Utah could be removed, except such as came entirely under the removal act of 1887, is to hold that the congressional provision in the enabling act, and the provision in the Utah constitution, are alike futile and meaningless, and that nothing but the act of 1887 has any force in respect to the subject. It is argued that congress cannot delegate its legislative power to any other body, and therefore the provision in the Utah constitution is void. It may be admitted that congress may not delegate its general powers of legislation on subjects affecting the whole people. But it has never been doubted that congress may, in respect to any designated district or territory outside of all the states, and therefore within its absolute control, create a local legislative body, and invest it with legislative powers. This has been done in respect to all of the organized territories, although the power of congress remains complete over them, so that it can disorganize them, or abrogate any law passed by the local legislature, or make enactments for a territory as if it had no legislature. The constitutional convention of Utah was a governmental body, which congress could properly provide for, to aid in preparing for the change from territorial existence to statehood, and could properly invest it with authority' to provide for all the details incident to such change. One of those unavoidable details was the proper distribution and placing of the causes depending in the territorial courts, which would go out of existence with the change. The argument, however, has
2. The defendant telegraph company, by its contract with the sender of the telegram, made in consideration of payment for the service, was bound to him to transmit his message correctly, aDd would be liable to Mm for any damage he might sustain as the direct result of failure to perform such contract, except in so far as such liability had been lawfully limited by the terms of the contract. It also owed a duty to the person to whom the telegram was addressed, and to whom it was delivered by the telegraph company to be acted upon, to exercise care that the telegram so delivered should be authentic and accurate. The cases of May v. Telegraph Co., 112 Mass. 90, and Elwood v. Telegraph Co., 45 N. Y. 549, sustain the right of a person to whom a telegram is addressed and to whom it is delivered by the telegraph company, to recover for damage caused by negligence of the character indicated. But a telegraph company cannot be liable to a stranger to the company and to the telegram,—one to whom it has never delivered the message, and to whom it owes no duty whatever,—merely because he has seen the telegram, and acted upon it to his injury. Telegraph Co. v. Wood, 6 C. C. A. 432, 57 Fed. 471; Bank v. Ward, 100 U. S. 195. The direction to the jury was correct, and the judgment is affirmed.