35 F. 849 | U.S. Cir. Ct. | 1888
The material facts on which the questions presented by the pending application of plaintiff and motion of defendant depend are the following: In May, 1887, the plaintiff, a citizen of Ohio, commenced a civil action for damages in the court of common pleas of Ma-honing county, state of Ohio, and against the New York, Lake Erie & Western Railroad Company, a citizen and corporation of the state of New York, and thé Cleveland & Mahoning Valley Railroad Company, •the New York, Pennsylvania & Ohio Railroad Company, and the Youngstown Street-Railroad Company, corporations of the state of Ohio. The cause of action set up in plaintiff’s petition is for injuries sustained by him while riding as a passenger on a street car of the Youngstown Street-Railroad Company, by reason of a collision of said car with a locomotive of the New York, Lake-Erie & Western Railroad Company, which company, as lessee, was operating the line of railroad owned by the Cleveland & Mahoning Valley Railroad Company; said railroad having been first leased to the New York, Pennsylvania & Ohio Railroad Company, and then assigned or subleased by that company, with the consent of the lessor, to the New York, Lake Erie & Western Railroad Company, whose alleged negligence in operating its locomotive, in'connection with that of the Street-Railroad Company, caused the injury complained of. The petition alleged a joint cause of action against all the defendants, under and in pursuance of an act of the legislature of Ohio, passed April 13, 1883., which provided (80 Ohio Laws, p. 117, § 3305) that “the company to whom any railroad is leased, if a corporation of any other state, shall be subject to all restrictions, disabilities, and duties of a railroad incorporated within the state; and, notwithstanding such lease, the •corporation of this state, lessor therein, shall remain liable as if it operated the road itself, and both lessor and lessee shall, be jointly liable upon .all rights of action accruing to any person for any negligence or default growing out of the operation and maintenance of such railroad, or in any wise connected therewith, and may be jointly sued in any of the courts of this state of proper jurisdiction, and prosecuted to final judgment
In the petition and affidavit presented to the state court the removal was asked on the grounds that “petitioner had reason to believe, and does believe, that from prejudice and from local influence it will not be able to obtain justice in said court of common picas, or in any other court of said state of Ohio to which it has a right, on account of said prejudice or local influence, to remove said canse; and your petitioner desires to remove said suit into the circuit court of the United States for the Northern district of Ohio, Eastern division, in pursuance of the act of congress in that behalf, provided, to-wit, the act approved March 3,1887, entitled,” etc. While'reference is thus made to the act of March 3, 1887, the re
Three of the defendants in this action being Ohio corporations, and thus citizens of the same state with the plaintiff, the other defendant, the New York, Lake Erie & Western Railroad Company, although a citizen of a state other than that of the plaintiff, could not, under the act of March 2,1867, or the third subdivision of section 639, Rev. St., remove the suit to this court.. This is well settled by numerous-decisions of the supreme court-,
“Anri where a suit is now ponding, or may be hereafter 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, any defendant being sucli citizen of another state may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the rights on account of such prejudice or local influence to remove said cause, provided that, if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as it relates to such other defendants, to the state court, to be proceeded with therein.”
The sixth section of the act of 1887, after repealing by express terms certain sections of the existing statutes, adds: “And all laws and parts of laws in conflict with the provisions of this act, be, and the same are. hereby, repealed.” This not being the usual formula of a repealing clause intended to bo-universal, its effect and operation may properly be. limited to a repeal or modification of prior laws only so far as the provisions of the last act are in conflict with or cover the subject of the former. The supreme court stated and applied this rule in Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. Rep. 377. Applying this rule in the present case, and comparing subdivision-3 of section 639 with the
The removal in the present case cannot, therefore, be sustained under subdivision 3 of section 639, but must rest alone upon the fourth clause of amended section 2 of the act of March 3, 1887. Was the removal rightfully made under that clause? This presents the question whether a single defendant, being a citizen of a state other than that in which the suit is brought, who is jointly sued with other defendants, citizens of the same state as the plaintiff, may remove the’ suit to the circuit court upon making it appear to said court that on account of prejudice or local influence he cannot obtain justice in the state court or courts. Under former acts, as construed by the decisions above cited, all the material parties on one side of the suit having the requisite citizenship
“It is the duty of the court to give effect, if possible, to every clause and word of the statute, avoiding, if it may be, any construction which implies that the legislature was ignorant, of the meaning of the language it employed.*856 We should assume that the legislature was aware, when the act of April 15, 1868, was passed, that a previous statute had expressly excepted Bloomfield township from all of its provisions. When, therefore, they declared that the new township should come under the operation of any act from which Bloomfield had been specially excepted by any proviso thereof, the 'established canons of statutory construction require us to presume that tire legislature understood the full legal effect of such declaration.”
It must be assumed that congress, in the enactment of this clause of the act, was aware of the fact that under the construction placed upon the prior removal acts (except perhaps the act of 1866) all the parties on the side seeking the removal were required not only to possess the requisite citizenship, but to join in the application for such removal. When, therefore, congress declared that “any defendant” being a citizen of another state might remove the suit upon making it appear that from prejudice or local influence he could not obtain justice, the well-settled rules of construction require the court tó presume that the legislature understood and intended the full effect of such declaration, and meant not to confine the right of removal to all, but to extend it to “any” defendant, citizen of another state, who could make “it appear to said circuit court” that local influence or prejudice would prevent his obtaining justice in the local forum in a suit which involved a controversy between himself and the plaintiff therein. In so far as the act of 1887 copies old clauses or provisions of former statutes, it may properly be regarded as a legislative re-enactment of the meaning which the supreme court had given 'to such clauses; but in respect to new provisions, while they should, as far as possible, be interpreted so as to harmonize with the general scope of the act, and form, a consistent whole, they are to be construed according to their plain and obvious meaning, if the language admits of no ambiguity. The last act must be taken as the law on'the subject it embraced; and, “when the meaning is plain, the court cannot recur to the original statutes to see if errors were committed in revising them.” Iron Co v. Ashburn, 118 U. S. 54, 6 Sup. Ct. Rep. 929. The clause under consideration is a distinct, separate, and independent provision referring to a class of cases not embraced in or covered by the three preceding clauses of amended section 2. By the first clause of said section the right of removal is given to “the defendant or defendants,” without reference to his or their citizenship. By the second clause the removal may be had “by the defendant or defendants therein being non-residents of that state.” The third clause simply copies clause 2, § 2, of the act of 1875, and relates to separable controversies in which one or more of the defendants actually interested therein may remove the suit to the circuit court. This third clause must manifestly receive the same construction heretofore placed upon it by the supreme court in numerous cases. The “defendant or defendants” on whom the rights of removal is conferred by the first and second clauses may include .all the defendants, and require all to possess the right, and to unite in the application for removal. But when we come to the hew provision of the fourth clause, the general terms indicative of all the parties entitled to remove are.dropped or changed, and
It is next claimed for the plaintiff that the application for removal having been made after the suit was heard in the state court on the defendants’ demurrer to plaintiff’s petition, was too late, as the clause under consideration requires that the removal must be sought or may be had “at any time before the trial thereof.” The suit was still pending when the removal was had; and “the trial” referred to in this clause should be construed as meaning the final trial. This was the conclusion reached by Judge Deady in the case of Fish v. Henarie. 32 Fed. Rep. 425-427, after a full and careful review, of the authorities which fully sustain his construction. The cases cited and relied on by counsel for plaintiff arose under the second section of the act of 1875, and for the reason suggested by the court in Hess v. Reynolds, 113 U. S. 80, 5 Sup. Ct. Rep. 377, that “the-hostile local influence may not become known or developed at- an earlier stage of the proceedings,” removals on account of local prejudice should be allowed the non-resident at any time before the (final) trial.
It was suggested on the argument of the questions presented by the pending motions, but has not been urged in the brief of counsel, that, under the grant of judicial power in the constitution, congress could not authorize the removal of a suit from the state court situated as'this case is, at the instance of one non-resident defendant, and thus confer upon this court jurisdiction to try the suit, in which there was also a controversy between the plaintiff and other resident defendants. This precise question has not been directly decided by the supreme court. It was presented and argued by distinguished counsel in the Sewing-Machine Case, 18 Wall. 558, where the parties to the suit were situated substantially the same as in the present case, so far as their citizenship was concerned; but the supreme court did not pass.upon it, the decision having rested upon the construction of the judiciary act and the act of March 2, 1867, both of which fall short of conferring upon the circuit court t}j.e full judicial power granted in and by the constitution. The clause in the constitution extending the judicial power to controversies “between citizens of different states,” was intended to secure the citizen against local prejudice, which might injure him if compelled to litigate his controversy with another in the tribunals of a state not his own.
It is further contended that no proper proceedings have been had or taken by the defendant, even conceding its right of removal, to effect such removal. By the third section of the act of 1887 the steps required to be taken in removal cases generally are indicated, but that section excepts from its operation cases sought to be removed on the ground of local prejudice, in respect to which clause 4 of amended section 2 prescribes no mode or niethod of effecting that class of removals. What procedure may, then, be adopted by the party seeking or entitled to remove under this clause? In conferring the right congress certainly in
But it is insisted on behalf of plaintiff that this is not a sufficient showing to warrant this court in declaring that said defendant was entitled to remove the suit, and ip assuming jurisdiction thereof. His counsel claim that the fact of prejudice or local influence which must be made “to appear ” to the circuit court as one of the conditions on which the right of removal depends, involves a judicial investigation; that there can be no ex parte action in the matter; and that in such cases the plaintiff is entitled to notice of the application, and an opportunity to contest and pitt in issue the grounds on which the removal is sought. In
In conferring upon the circuit court of the United States the authority to act upon the application for removal of suits from state courts, congress certainly never intended to make the question as to the existence or non-existence of prejudice or local influence, which would prevent a nonresident citizen defendant from obtaining justice in the local courts, a jurisdictional fact, such as would entitle the side opposing the removal to dispute its truth, and put the matter in issue for formal trial. The requirement of the statute that, under certain conditions therein stated, a party defendant may have the,suit removed to this court “when it shall he made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court,” constitutes nothing more than a part of the process of removing the suit. Steps forming a jaart of such process of removal under no previous statute were ever regarded as issuable; and the subject-matter of a preliminary trial,
The twelfth section of the judiciary act of 1789 provided that “if a suit he commenced in a state court against an alien or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the aforesaid sum of ¡8500, exclusive of costs, to be made to appear to the satisfaction of the court,” the defendant party might, on entering his appearance, and by the process specified in the section, cause the suit to be removed “ for trial to the next circuit court to he held in the district where the suit is pending.” While this section was in force, Longest sued Gordon in the state court of Kentucky. On entering his appearance, the defendant filed his petition to remove the cause to the circuit court of the United States for the district of Kentucky, on the ground that he was a citizen of Pennsylvania and the plaintiff a citizen of Kentucky. The citizenship of the parties, as alleged,
By the fourth clause of amended section 2 of the act of 1887 the removal is to he had “when it shall be made to appear to said circuit court” that such prejudice or local influence exists in the state court or courts as will prevent the petitioning defendant, being a citizen of a state other than that in which the suit is brought, from obtaining justice. This certainly does not properly involve or require the investigation and judicial establishment of a fact which the plaintiff in the suit is given the right to controvert. The statute makes no provision for giving notice to the plainti ff of the application to remove, and the petitioning party has not heretofore been required, either by the statute or the practice of the courts, to which petitions for removal were addressed, to give any notice to the adverse party of his application for such removal of a suit from the state court. Weld v. Wald, 17 Blatchf. 342, and Stevens v. Richardson, 9 Fed. Rep. 194, where it is said by Judge Blatoiifobd that “it has always been held in this court that no notice [of the application for removal] was necessary;” citing Fisk v Railroad Co., 8 Blatchf. 243. No notice of the application for removal being required, it results necessarily that the court which acts upon such application must proceed upon the ex parte prima facie showing made by the petition and affidavit accompanying the same, leaving to the adverse party the right to question by proper plea in the circuit court the strictly jurisdictional facts presented in the application. Barry v. Edmunds, 116 U. S. 559, 6 Sup. Ct. Rep. 501, relied on by the plaintiff’s counsel, is not in conflict with these propositions. In that case the court does recognize that the jurisdictional facts embraced in section 5 of the act of 1875 may, by proper pleading, and at the proper time, be put in issue, and a trial had thereon. That section created certain new jurisdictional facts proper on which issue could bo taken by the adverse party. But no such effect can be given to the requirement of the present law in designating the time and mode of effecting the removal.
Under this act of 1887 the circuit court is invested with the authority heretofore conferred upon and exercised by the state courts in acting upon applications for removal, and has imposed upon it the further authority oí directing the suit to be remanded so far as relates to defendants other than the one applying for the removal, “when it appears” to said court that said suit can be fully and justly determined as to such other deiendants in the state court, without-being affected by local prejudice, and no party to the suit will be prejudiced by a separation of the parties. Can it, with any show of propriety or reason, be asserted that this proviso to the fourth clause of said section contemplates a further or additional trial inter partes of the question whether such separation of the parties shall be directed, and the suit remanded as to some of the defendants and retained as to others? This language of the proviso, “if it further appear,” (to said circuit court,) indicates a judicial investigation
The conclusions of the court on the whole case are that the removal was rightfully and properly made under the act of 1887; that plaintiff’s application to be allowed to put in issue and have a trial upon the allegations of the defendants’ petition, as to the existence of prejudice or local influence in the state courts, should be denied; and that his motion to remand should be refused. It is accordingly so ordered, with costs, and the suit will proceed in this court.
Welker, J., concurs.