50 F. 593 | U.S. Circuit Court for the District of Western North Carolina | 1892
Many state and federal courts of the highest authority have heard argument and carefully considered questions of law arising under section 643 of the Revised Statutes of the United States,
“Where a United States officer is charged with a duty, and does acts, under color of his duty, which but for his office would be a crime against the*595 state, then and in that case the United States courts have jurisdiction, and under the act of congress can remove the case from the state courts into the federal courts.. This power is indispensable to the United States, and is in no way derogatory to the state. ”
In the case of Ableman v. Booth, 21 How. 506, the supreme court defines with great clearness and force the constitutional relations existing between the courts of the states, the people of the states, and the federal government. The faithful observance of the duties of such relations is essential to the peace, harmony, and prosperity of the national Union.
Upon careful examination of the proceedings instituted for the removal of this case from the state court to this court for trial, I find that they are in substantial conformity to the act of congress. The petition of the defendants represented that they were officers and agents of the government, duly appointed and acting under the revenue laws of the United States, and that the acts for doing which they are criminally prosecuted in the state court were acts done under color of their office and employment, and in the performance of their official duties, in the enforcement of said revenue laws. The representations set forth in their petition, showing the nature of the prosecution and the authority and circumstances under which they acted, wore duly verified by oath, and by the certificate required by law to be given by the legal counsel of the petitioners. As the circuit court was not in regular session, the petition was presented to the deputy clerk of such court at liis office in Statesville, and was duly filed in said office, and the case was thereupon entered on the docket of the circuit court, to be proceeded with as a case originally commenced in said court, and a writ of certiorari was duly signed and issued by a regularly appointed and qualified deputy clerk, acting in the name of the clerk of the court. This writ was placed in the hands of the marshal of this district, and a duplicate copy was delivered by him to the clerk of the state court before the commencement of the trial of the case in said court. As the defendants were on bail, and not in actual custody, a writ of habeas corpus cum causa was not applied for in the petition, and was not issued by the deputy clerk. The recognizance in the state court was transferred by operation of law in the removal of the case, and the defendants were under obligation to appear in this court and answer the charges in the indictment found by the grand jury of the state court.
I entertain the opinion that when proceedings for the removal of a criminal prosecution from a state court to a federal court lor trial are in conformity to the act of congress providing for such removal, the representations averred in the petition of defendants, constituting sufficient grounds for removal, verified by oath and by certificate of counsel, must be accepted as true, and the case is ipso facto removed to the circuit court, and the jurisdiction of the state court is at an end, unless the case shall be remanded thereto. Spear, Fed. Jud. 484. The rights of the defendants and the jurisdiction of the circuit court depend upon the authority of law, and not upon the correct performance of a ministerial duty by the clerk
1 will now proceed to consider more particularly the nature of the writ of certiorari, issued by the deputy clerk of this court in the name of the clerk, to ascertain whether the action of the deputy was in accordance with official duty and power. At common law the writ of certiorari is used for two purposes: (1) As an appellate proceeding for the re-examination of some action of an inferior tribunal; and (2) as auxiliary process to enable a court to obtain further information upon some matter already before it for adjudication. U. S. v. Young, 94 U. S. 258. It was for this last purpose that the writ was issued in this case. In its relations to this court the state court is in no sense of the word an inferior court. The proceedings in this case are not appellate in their nature. They were instituted under a positive and constitutional law, which entitled the defendants, upon making a certain representation of facts, in a properly verified petition, to have a caso untried and pending in a state court having jurisdiction removed for trial to' a federal court which had, in accordance with law, acquired, not concurrent, but paramount, jurisdiction. A court must have competent jurisdiction of a matter before it can award a writ of certiorari. When a valid law confers upon a court jurisdiction to issue a writ of certiorari,, such jurisdiction must necessarily be superior to the jurisdiction to which the writ is directed; for such writ commands tho performance of a duty. Such superior jurisdiction is derived from positive law, and is in no way dependent upon the formal correctness of the writwhich the court issues in order that it may exercise its vested jurisdiction with intelligence and dispatch. When this case was properly entered upon the docket of this court, jurisdiction to issue the writ of certiorari and try the case was conferred by the act of congress, and was superior to the jurisdiction of the state court. The writ issued did not enlarge the jurisdiction of the court, but was only auxiliary process,
I have been informed that the supreme court of this state has affirmed the judgment of the court below in this case, but I have not seen the opinion filed. I desire to have an opportunity of carefully reading and considering such opinion before I proceed further. I have confidence in the ability, integrity, learning, and patriotism of the justices who preside in that distinguished court; and I have learned that questions of law arising upon the face of the record were discussed and determined, w'hich were not presented on the trial in the court below. It is ordered that this case be continued to the next term, and that the defendants enter into recognizance for their appearance.
The solicitor of the state for this district, being present, waived any further notice of this proceeding of the court.
SUPPLEMENTAL OPINION.
(At Chambers. March 14, 1892.)
Since delivering and ‘writing out the foregoing opinion, I have seen the decision of the supreme court of this state, (14 S. E. Rep. 796,) af
It is not my purpose to discuss at any length the questions of law considered by the state supreme court, which were not relied upon in the trial of the case in the court below. I desire simply to express my nonconcurrence, and offer a few reasons that influence me in my opinion. 1 certainly do not concur in the views of the supreme court in regard to a strict and technical construction of the removal statute referred to. Section 643, Rev. St. U. S. This statute is a part of the revenue system of the general government, and the United States supreme court has often dccided that revenue statutes are remedial in their nature, and are to bo construed liberally to carry out the purposes of their enactment; and what is implied in them is as much a part of the enactment as what is expressed. The intention of the lawmakers and the reason and object of the law are considerations of great weight in the construction of the statute. Smythe v. Fiske, 23 Wall. 374. In the opinion of the supremo court it is insisted that the writ of certiorari issued by the clerk of the circuit court in this case was not in proper form and properly directed. I will readily concede that such writ is not in conformity with a writ of certiorari at common law, but there is good reason in this case for a departure from such usual and established form. At common law the certiorari is a writ issued by a superior court having jurisdiction, directed to an inferior court, commanding it, through its clerk, to certify and return the record and proceedings in a particular case pending before it to the higher court. A court that has authority to command the performance of a duty has competent power to enforce obedience by compulsory process. Circuit courts of the United States are not higher courts than the state superior courts, and under the provisions of section (543 have no authority to command state courts and enforce obedience. Under this section, congress has not invested the circuit courts with any such coercive authority, but provision has been made for such courts to notify and require the state courts to certify their records and proceedings; and, if such requirements are disregarded, circuit courts can supply the record, and proceed to make disposition of cases removed without the requested assistance of the state courts. Under such circumstances, I am of opinion that the w7rit of certiorari, in this case was appropriate, and is not justly subject to criticism for informality. It was issued under the seal of a court of competent jurisdiction, was delivered to the clerk of the state court by the marshal, was read in open court before the trial, respectfully gave information to the state court of the sufficient grounds upon which the circuit court assumed jurisdiction, and notified the state -court of the duty imposed upon it by law. The purpose of issuing the writ of certiorari was not to require the state court to surrender jurisdiction and remove the cause to the circuit court, but simply to require a return of the record of the case, duly authenticated by its clerk. Under this statute the slate courts have no essential agency in the removal of causes. All proceedings for removal are conducted in the circuit court, and the auxiliary
It is further insisted in the opinion of the state supreme court that the writ of certiorari in this case is defective, in that it does not show on its face that the clerk had expressly adjudged the petition to be sufficient to serve the purpose contemplated. The statute declares in clear and express terms what representations of facts in the petition, and what verification, shall give the petition filed the force and effect of removing the case. The truth of such representations is matter of subsequent inquiry and determination. The only duty imposed upon the clerk is to examine the papers and see that the formal requirements of the law are complied with. He determines these matters by the ministerial acts of inspection and comparison, and manifests his approval in no other way than by filing the petition in his office, and entering the case on the docket. This implied approval clearly appears in the writ of certiorari that was issued in this case.
It is further insisted that “the process going from the circuit court to the state court must state the substance of the ground of the authority of the former, and the purpose of the command of the writ.” This alleged requisite, if adopted in practice, would introduce a novel feature into a writ of certiorari, unknown to the common law. At common law, it was a prerogative writ, — a mandate of the crown, — issued by a court that was invested with a plenitude of power over all inferior courts of the realm, and had a right to command them to return authenticated records and proceedings in a particular case for trial .or correction of errors'. The courts of the United States derive authority to issue such a writ from the constitution and the legislation of congress; and the nature and purpose of the writ has been set forth in acts of congress, and in frequent decisions of federal courts. It seems to me that it would be unnecessary and improper for a circuit court of the United States, in removal proceedings, to inform a state court, in more specific terms than were used in this case, of the grounds of its authority, and the purpose of the writ, when such matters are disclosed by public and paramount law, presumed to be well known to all courts.
I have prolonged this discussion further than 1 at first intended. The judgment of the superior court against the defendants for the offense with which they were charged and convicted by a jury was not oppressive or unreasonable. I feel sure that the judge of the superior court, in his ruling, was prompted by a high sense of judicial duty. I entertain the highest respect for the state supreme court, and read with pleasure and benefit its able, learned, and instructive opinions; and I sincerely regret that an occasion has arisen which has produced a conflict of judicial opinion and authority.
Rgv. St. § 643: “When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding pi'operty or estate by title derived from any such officer, and affects the validity of any such revenue law, or is commenced against any officer of the United States, or other person, on account of any act done under the provisions of title 26, ‘the elective franchise,’ or on account of any right, title, or authority claimed by such officer or other person under any of the said provisions, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to he holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution, and bo verified by affidavit; and, together with a certificate signed by an attorney or counselor at law of some court of record of the state where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him, and carefully
Tho opinion oí the slate court, delivered by Mbjrkimon, O. J., is as follows, omitting 1he part in which the removal statute is set out: “The purpose of this statutory provision is to create jurisdiction in tho circuit court of the United States, and to transfer to that court the jurisdiction of state courts in the classes of cases specified therein, when such cases shall be removed as contemplated by it. It is hence very important, and should be strictly observed in all material respects. Such observance is the more important, as tho method of removal prescribed does not require the circuit court to supervise and scrutinize applications for removal unless it shall happen lobe in session at tho time the same shall be presented. The removal of causes is no doubt subject to abuses, and, as suggest ed, frequently prostituted with a view to evade and delay rather t han obi ain justice on the part of tho party professing to seek it. This statute has been tho subject of much judicial criticism. Its validity as a whole, and that of some of its material parts, have been much questioned. But it is now settled that it is valid and operative. It is therefore tho duty of the courts, both state and federal, in good faith to give it effect in all proper cases. Tennessee v. Davis, 100 U. S. 257; Davis v. South Carolina, 107 U. S. 597, 2 Sup. Ct. Rep. 636; State v. Hoskins, 77 N. C. 530. The state court will lose, he deprived of, and relinquish its jurisdiction only in the case and la the way and manner proscribed. Courts do not readily give up or abandon their jurisdiction of eases before them. It ⅛ of their nature and purpose to administer justice as cont emplated and intended by the laws of their creation and being. It is not to be presumed that they are incapable, unjust, or untrustworthy. On the contrary, the presumption is in their favor in all these respects. Hence, statutes not in aid of, but, depriving them of, their jurisdiction, particularly where it has already attached, are to be strictly interpreted. The present case Is a criminal prosecution, begun by indictment and a captes, whereby a personal arrest is ordered.’ It intends that the defendants shall be arrested and hold in close custody by the sheriff, unless they shall give bail as allowed by law. In such case, if it be granted that the defendants regularly and sufficiently presented 1heir petition for removal of the action to the clerk of the circuit court of tho United States at his office, that court not being in session at the time, and that the clei-k duly filed it, and entered the cause on the docket of that court, the jurisdiction of the latter was not then complete, nor was that of the state court over and at an end. It then became necessary, in order to completely and efficiently transfer the jurisdiction from the stato to the'circuit court, for the clerk of the latter court, to ‘issue a writ of habeas eorpi/s emu causa, a duplicate of which should have been delivered to the clerk of tho stale court, or left at his office, by the marshal, his deputy, or some person duly authorized to do so.’ Thereupon it would becomo the duty of the state court ‘to stay all further proceedings in the cause.’ This being done, the prosecution would ‘beheld to be removed to tho circuit court, and any further proceedings, trial, or judgment therein in the state court ’ would be void. The statute above recited so expressly declares and prov ides. The case is not removed. The state court does not lose its jurisdiction until the writ last mentioned is so delivered to its clerk. The state court cannot know of tho intended removal except in the way thus prescribed. The statute on purpose prescribes such method of procedure in casó of criminal prosecution; and it in like manner prescribes that ‘the clerk of the circuit court shall issue a writ of certiorari to the state court’ in case of the removal of other causes of other classes, ‘requiring it to send to the circuit court the record and proceedings in the cause. ’ These writs, and the proper service of them, are essential to perfect tho jurisdiction of the circuit court, and put an end to that of the stato court. The method of removal prescribed so expressly requires, and no other method is prescribed in terms or by implication. Any other method adopted by' tho courts for the sake of convenience, or to euro irregular or defective procedure, would put a very delicate subject, regulated by statute, at the discretion of tho courts, and load to intolerable confusion. The only just and tolerable course is to observe the statute, at least substantially, in a,ll respects. Jn tho present, case the clerk of the circuit court did not issue a writ of habeas corpus cum causa, as ho should have done. The paper writing he signed by his deputy, and had served on tho clerk of the stale court, was not such writ in form or substance, nor does it purport to be. It was not the writ the law prescribed and required to be issued in such cases, nor did it charge the state court with notice, and put an end to its jurisdiction of the prosecution. It is more like a writ of certiorari, and was probably intended to be such, but it was not, addressed to the state court or