7 Nev. 143 | Nev. | 1871
By the Court,
The plaintiff applied for a removal of this action into the circuit court of the United States, under the act of congress of March 2d, 1867, which provides: “ That where a suit is now pending or may hereafter be brought in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he will make and file in such state court an affidavit stating that he has reason to, and does, believe that from prejudice or local in
Article III of the federal constitution declares that the judicial power of the United States shall extend inter alia to all cases between citizens of different states; and subdivision 17, Sec. 8, Art. II, confers the power upon congress to make all laws which shall be necessary and proper for carrying into effect all the powers vested by the constitution in the government of the United States, or in any department or officer thereof. Here is full control and jurisdiction vested in the federal government over all suits “ between citizens of different states.” The language is broad and comprehensive, extending the jurisdiction to all controversies between citizens of different states. It is given in general terms. No limitation is imposed, no exception mentioned. There being nothing in the constitution itself which restrains or limits this power, it must be maintained in the utmost latitude to which in its own nature it is susceptible.
Nor is the time when, nor the manner in which jurisdiction of
The power, as conferred, authorizes the assumption of jurisdiction of dll cases between citizens of different states; and as the greater includes the less, it justifies the assumption of jurisdiction of such controversies, although the parties may have submitted to the jurisdiction of a state court; for notwithstanding that fact, it is still a controversy between citizens of different states, and continues so at least until the matter is determined by a judgment. -We are aware that a different view was taken by a majority of the court in the case of Whiton v. The Chicago and Northwestern Railroad Company, 25 Wis. 424; but the reasoning by which the conclusion is attained, if none better can be adduced, is convincing evidence that the decision is erroneous. It is argued that the plaintiff, by instituting his action in the state court, waived his right to appeal to the federal courts for a decision of the matter in controversy. The process of reasoning is, first, that as he had the right to appeal either to the state or federal courts and selected the former, therefore he waived the right afterwards to have it transferred to the latter. Indeed, the whole opinion is condensed in these concluding sentences. “ It seems to me, that on principle and reason it should be held that the plaintiff, by bringing his suit in the state court whe'n he might have brought it in the federal court, has clearly waived his right to appeal to the- latter tribunal, and that this waiver binds him through the litigation. As plaintiff, he has volunta
This' decision is eertainly a curiosity in the field of logic. A more bold and palpable non sequitur than the conclusion drawn from the reasoning could not be imagined. It is perfectly manifest, if the act is unconstitútional, there was nothing which the plaintiff could waive ;„for withopt the act it is admitted he could not remove his action to the federal courts, and it must also be admitted that if the act be constitutional, his motion to remove should have been sustained, because the court concedes that he complied strictly with its requirements. Now then, what has the question of waiver by first bringing his action in the state court to do with the question ? It is just such a case that the law of congress is intended to meet. If, therefore, the party making the application to remove, in all respects comes within the provisions and complies with the requirements of the statute, there is but one question left to be determined, and that is: Did congress have the power to pass the act? But surely, if the federal constitution confers the power on congress, the fact that a person has waived a right conferred by it in the legitimate exercise of that power cannot be claimed to be a proof that the power does not exist. That the learned judges who rendered the decision in Whiton v. The Chicago and Northwestern Railroad Company fell into error, seems to us too clear to admit of doubt.
Upon the second question in this ease but little need be said. It is admitted the affidavit is sufficient in all respects, except that it does not set out the facts upon which the appellant bases his belief that such local prejudice existed that he could not obtain justice. It will be observed that the statute only requires the person moving to have the case transferred to make and file an affidavit stating 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 statute specifies what the affidavit shall contain. . It does not
The court below erred in denying the motion. Its judgment must therefore be reversed.