45 F. 804 | U.S. Circuit Court for the District of South Carolina | 1891
The summons and complaint in this case were filed in the office of the clerk of Beaufort county in South Carolina on 23d March, 1891. The complaint sets forth the ownership by the state of the beds of Goosaw river, including that part of it which “lies opposite to and south of Chisolm’s island,” and in the phosphate and phosphalic deposits therein. That the Coosaw Mining Company, a joint-stock company, claims a perpetual grant to all such deposits in that part of Coosaw river, and the exclusive right to mine the same, which claim relators deny. That, notwithstanding such denial, the Goosaw Company continues to assert its claim, and hinders and obstructs the relators, who are the duly qualified and appointed board of phosphate commissioners, and all persons authorized by them, from mining in said territory. That it is neeessary to dispose of this claim, which is based on a certain act of the general assembly of Kouth Carolina, approved 20th March, 1876, (setting out the title of the act,) which act relators charge to be in conflict with the state constitution. That the deposits are of great value, variable, however, in price, and liable in this respect to be affected by the discovery and the production of phosphate rock elsewhere. Charges that the Coosaw Company has brought and threatens suits against persons licensed by plaintiifs to mine in this territory, and that this cloud on the state’s title should be removed. The prayer is for a perpetual injunction against the Coosaw Company, and in the mean time a restraining order, and also for the appointment of a receiver. After the filing of the complaint an order was made by his honor, Judge Aldricii, sitting in chambers at Aiken, containing a rule against the Coosaw' Company to show cause before him, on 7th April next thereafter, why the injunction as prayed for be not granted, and why the receiver be not appointed. In the mean time a restraining order w'as issued, and a temporary receiver appointed without bond. The defendant was served with summons and complaint on 23d March, 1891. On 30th March, 1891, a petition was filed with the clerk of the court of common pleas for Beaufort county for the removal of the cause into this court, accompanied by a bond with good surety in the sum of §5,000. The court of common pleas for that county was then and is now in vacation. The ■ next regular term will be held on 4th of May next. The defendant exhibited a copy of the petition and bond to Judge Aldrich at Aiken on 31st March. What action he took does not appear. A copy of the summons and complaint, petition and bond, with exhibits certified by the clerk of the court of common pleas for Beaufort county, was filed in this court on 1st April. On the 6th day of April the regular term of this court began. On the 7th of April the Coosaw Company came into open court, and asked leave to file a return to the rule issued by Judge Aldrich. Thereupon the Honorable Y. J. Pope, who is the attorney general of the state of South Carolina, and who appears on the record as plaintiffs’ attorney, entered a qualified appearance for the plaintiffs, simply to test the jurisdiction of the court. At the same time he filed
At the threshold of this case plaintiffs submit two questions to the court: First. Has it jurisdiction of this case? Second. If it has jurisdiction, are there not considerations of courtesy and comity towards the state court which will induce it to withhold action?
Has this court jurisdiction of this case? This will depend upon two questions: Is the case removable from the state court to this court? Has it been removed? The case cannot be removed unless it comes within the class of cases arising under the constitution of the United States, of which circuit courts of the United States are given jurisdiction by the first section of the act of congress of 1888. 25 St. at Large, 434. Section 1 of that act gives to the circuit courts of the United States original cognizance concurrent with the courts of the several states 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 $2,000, and arising under the constitution of the United States. The value of the matter in dispute here is beyond the sum stated. The act makes no exception because of the character of the parties. The sole question, therefore, is, does this case arise under the constitution of the United States?
The complaint does not anywhere state the authority upon which it is brought by these relators in the name of the state, nor how they be-» came and are the duly appointed and qualified board of phosphate commissioners, nor how or when they were authorized to do the acts which it is charged the Coosaw Mining Company obstructs. Nor does it mention or refer to any legislative action of the state of South Carolina with respect to the claim of the Coosaw Company to hold her grant. It does allege that the state is the sole owner of the disputed territory; that the Coosaw. Mining Company claims a perpetual grant of the exclusive right to mine therein, based upon an act of the general assembly of that state, whose title and the date of whose approval are stated in the complaint, which the complaint says is invalid. The petition for removal states that the relators are acting under and by the authority of an act of the assembly of this state, approved--December, 1890, giving its title at length; that the grant which they have, and which they charge is a contract between them and the said state, is impaired by said act of 1890. That the said act is a violation of the constitution of the United States in sundry particulars, especially in that it impairs the obligation of a contract.
There can be no doubt that if the question, whether the act of 1890 impairs the obligation of a contract, can be made to appear on that part of this record, which this court is at liberty to examine at this stage of the proceedings, the case is removable. It is a federal question, arising under the constitution of the United States. In the case of Dartmouth College v. Woodward, 4 Wheat. 518, the legislature of New Hampshire had passed an act materially amending the charter granted by the crown
We will inquire, first, confining ourselves to the complaint without any reference to the allegations of the petition for removal, does it appear that a federal question is involved in the case made by it? That is to say, suppose the parties are heard here on the complaint alone, without any answer or plea setting forth facts not in the complaint, would the federal question arise? Could the court entertain the question, was there a contract between the state and the Coosaw Company? Has the state by legislation sought to impair its obligation? There are certain matters in all causes of which courts will of themselves take notice, and which, therefore, need not be pleaded or proved. Wharton on Evidence (section 277) thus expresses it:
“Certain facts or conclusions from facts, however, may be noticed, which may be styied ‘ non-evidential,’ from the fact that they are not proper objects of evidence, and that consequently they may be judicially noticed by the courts. ”
Story, in his Equity Pleading, (section 24,) says:
*808 “On the other hand, the plaintiffs need not, and indeed should not, state in the bill any matters of which the court is bound, judicially, to take notice, or is supposed to possess lull knowledge. Hence it need not state matters of law, * * * or recite public acts or laws, or aver facts, which the courts are bound, judicially, to know. * * * A strong illustration of this general rule may be found in the right and duty of the courts of the United States to take judicial notice * * * in an especial manner of all the laws and jurisprudence of the several states in which they exercise an original or an appellate jurisdiction.”
1 Chit. Pl. 215, says:
“Public statutes and the facts which they recite or state must be noticed by the courts without their being stated in pleading, and it is only necessary to state facts which will appear to the court to be affected by the statutes. ”
And these text-writers are fully, sustained by the courts. “The law of any state of the Union, whether depending upon statutes or judicial opinion, is a matter of which the courts of the United States are bound to take notice without plea or proof.” Lamar v. Micou, 114 U. S. 218, 5 Sup. Ct. Rep. 857. In Owings v. Hull, 9 Pet. 625, is an application of the rule. “The next objection,” says the court, “was that the copy of the original bill of sale of the slaves to Hull, on record in the notary’s office, "was not evidence, unless the plaintiff accounts for the non-production of the original. The validity of this objection depends upon the consideration whether the non-production of the original was sufficiently accounted for. It was not accounted for by any proof offered on behalf of the plaintiff, and, unless the circuit court of the United States could judicially take notice of the laws of Louisiana, there was nothing before the court to enable it to say that the non-production of the original was accounted for. We are of the opinion that the circuit court was bound to take judicial notice of the law of Louisiana. * * * It is to he judicially taken notice of in the same manner as the laws of the United States are taken notice of in these courts.” In U. S. v. Randall, Deady, 524, “the courts of the United States take judicial notice of the acts of congress, and they need not be set forth or specially referred to in any proceeding before them.” In Gardner v. Collector, 6 Wall. 499, “the courts take judicial notice of the public statutes, and this notice extends, not only to the existence of the statute, but to the time when it takes effect, and to its true construction.” In Starr v. Moore, 3 McLean, 354, “in this court it is not necessary to plead or prove a state statute.” In Beaty v. Knowler, 4 Pet. 167, “the prevision of the act of incorporation that it should be considered a public statute must be regarded in courts of justice, and its enactments must be noticed without being specially pleaded.” See, also, Cheever v. Wilson, 9 Wall. 121; Armstrong v. U. S., 13 Wall. 154. The public laws of a state must he known to and be in the nfind of every judge exercising jurisdiction within that state, not only as to their existence, but as to their construction. When a right, privilege, or duty is given to or imposed upon any person, natural or artificial, by a public act, such person can pursue such right, privilege, or duty in the courts, and the courts will, without pleading, producing, or referring to the act, recognize and enforce it. it accompanies the
But is the court, in seeking to ascertain whether a cause is removable, confined to the allegations of the complaint? Is it precluded from examining the petition for removal? When a petition for removal and bond are filed in the state court the canso is removed. Steam-Ship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. Rep. 58. When the record is filed in this court the case will be remanded to the slate court, if it shall appear to the satisfaction of the circuit court of the United States “that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the said circuit court.” Act 1875, Supp. Rev. St. 175. And this question the circuit court determines for itself finally. Act 1888, 25 St. at Large, 435. The court looks into “the dispute or controversy.” These words necessarily require the hearing of both sides, not the ex parte statement of one side. So, under the act of 1789, in all cases of removal the petition for removal is a part of the record, and is examined by the court. Insurance Co. v. Pechner, 95 U. S. 183. And under the act of 1875 it was an essential part of the record, and was always examined in determining the removability of a suit. Carson v. Dunhan, 121 U. S. 426, 7 Sup. Ct. Rep. 1030. In this case it is said that the petition for removal performs the office of pleading. And in Water Co. v. Keyes, 96 U. S. 203,
It is supposed that the uniform practice of federal courts in treating the petition .for removal as part of the record has been changed by the act of 1887-88. Under thé act of 1875 either party could remove a cause; and a suit could be brought in a state court in the subject-matter of which the United States court could not have jurisdiction, and the plaintiff could at once remove it, and under the removal act create jurisdiction. Such was the case with a suit brought by a citizen of one state, the assignee of an unnegotiable instrument, against' the maker, a citizen of another state, and of the same state as- the assignor. This was an abuse of the privilege of removal. Congress by the act of 1887-88 corrected the abuse. None but a defendant can remove. No suit can be removed which is not within the original jurisdiction of the circuit court. But no change was made in the practice of removal, although this was well
The next question is, has the cause been removed? This being a removable case, as soon as the petition and bond were filed in the state court its jurisdiction absolutely ceased, and that of this court immediately attached. Railroad Co. v. Mississippi, 102 U. S. 135; Railroad Co. v. Koontz, 104 U. S. 5; Steam-Ship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. Rep. 58; Crehore v. Railway Co., 131 U. S. 244, 9 Sup. Ct. Rep. 692.
The last question which we are asked to examine is, are there not considerations of comity and courtesy which would induce the court to withhold action? The petition for removal and bond were filed in the court
With regard to considerations of comity, they have no place here. The question is one as to the right of the citizen, not as to the conduct of the court. Had an action been, brought in this court, after the jurisdiction of the state court had been engaged over the subject-matter in another action, then the court could properly consider whether it ought not to leave the parties to the tribunal first charged with the settlement of the dispute. But this is a case brought in the state court, removed into this court. In entertaining the petition for removal, this court cannot mean any reflection upon the state court. It simply- considers whether the petitioners have the right to the removal. If they have, refusing it would be a denial of right.