38 F. 374 | U.S. Circuit Court for the District of Kentucky | 1889
The plaintiff sued the defendant, who is an alien, in the Christian circuit court, and he filed his petition for a removal to this
The learned counsel of the plaintiff makes a quotation from the opinion of the supreme court in Railway Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. Rep. 1262, in which the court says:
“It [a removal petition] presents then to the state court a pure question of law, and that is whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court has the right to decide for itself. ”
—And he seems to assume the decision of the state court is conclusive upon this court, and the error, if error there be, can only be corrected by a superior state court or by the supreme court of the United States. But a careful reading of this opinion will show that court did not intend to decide that the judgment of a state court as to whether or not the allegations of a petition for removal Avere sufficient to give a right to remove a suit from a state court to a federal one precluded the federal court to which a removal was sought from deciding that question for itself. The effect of the decisions of the supreme court is to give to the United States circuit courts the exclusive jurisdiction to determine all issues of fact that may arise in removal proceedings, and to give these courts the right, concurrently Avith the state courts, to determine the right to a removal as a matter of law arising Aipon the face of the record itself. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799; Railroad Co. v. Koontz, 104 U. S. 5; Railway Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. Rep. 1262.
The act of March 3, 1887, which was the act in force Avhen the removal proceedings Avere filed, did not, in terms, (as the act of August 13, 1888, did,) declare the second section of the act of March 3, 1875, repealed, but that act should be so construed. Gavin v. Vance, 33 Fed. Rep. 84. This section provides for the removal of suits from the state courts which arise under the constitution and laws of the United States, and under treaties made therermder, and then it provides that “any other suit of a civil nature, at law or in equity, of .which the circuit courts of the United States are given jurisdiction by the preceding section, and Avhich are now pending or which may hereafter be brought in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein being non-residents of that state.” The preceding section gives