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SOUTHERN LAW REVIEW
VOL. III, N. S.] St. Louis, APRIL, 1877.
1. REMOVAL OF CAUSES FROM STATE TO
The article of Judge Dillon in the July number, 1876, of this Review, on the Removal of Causes from the State Courts to the Courts of the United States, is admirably adapted for the practical purposes intended, and fairly exhibits the present state of the law on the right of removal, and the mode of making that right available. It would be impossible to improve his plan, or add to its details, without impairing its faultless symmetry. Having had occasion recently to critic. ally examine the legislation of Congress on this subject, and the decisions of the Supreme Court construing that legislation, I can bear witness to the accuracy of his statements, while I have been led to doubt the correctness of one or two of his conclusions. The most important part of the legislation in question, because the most frequently brought into use, is the provision for the removal of causes “in which there shall be a controversy between citizens of different states." And the points of gravest difficulty arising thereon are, first, the jurisdiction of the state court in the matter of removal; and, secondly, the right of a litigant to “split” the suit into two parts, one part to be left in the state court and the other removed into the federal court. Judge Dillon thinks it doubtful, especially under the act of 1875, whether it belongs to the state court to judge of the sufficiency of
the surety or bond offered, and is of opinion that no order for the removal is necessary by the state court. He is also of opinion that the second subdivision of section 639 of the Revised Statutes, corresponding to the act of 1866, and which seems to contemplate the splitting of suits in certain cases, is not repealed by the act of 1875, unless, indeed, a “liberal construction " (by which I understand him to mean a construction which would imply from the language of the latter what is actually expressed in the former) shall be, and can constitutionally, be given to the latter portion of section 2 of the act of 1875. Both of these opinions deserve grave consideration.
It is not to be denied that there are decisions of the circuit and district judges of the United States which tend to these conclusions. Osgood v. Chicago Railroad Co., 2 Cent. L. J. 275, 283, per Drummond, Circuit J.; s. C., 6 Biss. 330; Mer. & Man. Bk. v. Wheeler, 3 Cent. L. J. 13, per Johnson, Dist. J.; Conner v. Scott, 3 Cent. L. J., 305, per Parkes, Dist. J.; Stapleton v. Reynolds, 9 Chic. Leg. News, 33, per Swing, Dist. J. It is to be noted, however, that the last three decisions are based upon the first, and that, in this first case, the right of removal independent of the action of the state court seems to have been conceded by the learned counsel of the parties who were applying for a remand. 2 Cent. L. J. 284; 6 Biss, 340. It must also be borne in mind that the learned circuit and district judges of the United States have almost invariably assumed the truth of the maxim, that it is the duty of a good judge to enlarge his jurisdiction. We have had evidences of this fact, not only in the construction put by them on the acts in question, but in their construction of the bankrupt laws wherever those laws seemed to infringe upon the jurisdiction of the state courts. And in thus enlarging the sphere of their operations they have sometimes unnecessarily, perhaps unconsciously, seemed inclined to treat the state courts with scant courtesy, as alien and hostile tribunals. The Supreme Court of the United States, however, occupying a higher vantage ground, and having a wider sweep of vision, have had a keener insight of the fitness of things, and have never failed in that lofty courtesy which honors him that gives and him that takes. We cannot err if we follow the decisions of that august tribunal, and, in the absence of positive rulings, be guided by the principles which underlie those decisions, and the incidental suggestions thrown out in making them.
The “present state of the law” consists of the statutes now in force, to be read by the light of previous statutes in pari materia and the adjudications of the court thereon. For, the presumption is that the language in which the lawmaker recasts the laws on a given subject is used in the sense already fixed by judicial construction, or with special reference to that construction, either in the way of adoption or avoidance. Accordingly, the article referred to commences with a historical résumé of previous legislation and judicial decisions on the subject, as essential to a proper understanding and correct interpretation of the existing statutes. The act of March 3, 1875, repeals "all acts and parts of acts in conflict" with its provisions, and, as far as it goes, embodies the last expression of legislative will. The mode of removal of a suit from a state to a federal court is, by the third section, thus provided for: “Whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suits mentioned in the next preceding section, shall desire to remove such suit from a state court to the Circuit Court of the United States, he or they may make or file a petition in such suit in such state court before, or at, the term at which said cause could be first tried and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being entered as aforesaid in said Circuit Court of the United States, the case shall then proceed in the same manner as if it had been originally commenced in said circuit court, etc." The corresponding provision of the act of 1789 enacts that the applicant “shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court to be held in the district where the suit is pending, and offer good and sufficient surety for his entering, in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety and proceed no further in the cause, and any bail that may have been originally taken shall be discharged; and the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process," etc.
Thus placed in juxtaposition and read together, it will be seen that the provisions of the two acts prescribing the mode of removal are identical in substance. In both, the applicant must file his petition and offer good and sufficient surety for precisely the same purpose, with the addition in the act of 1875 of a provision for the payment of costs if the federal court shall hold that the suit was improperly removed-an addition not in the least affecting the nature of the application. By the act of 1789, when the petition is filed and good and sufficient surety is offered, it is made the duty of the state court “to accept the surety and proceed no further in the cause." By the act of 1875, when the petition and bond with good and sufficient surety are filed, it is made the duty of the state court “to accept said petition and bond and proceed no further in such suit." The two provisions are substantially one and the same. Nor is there anything in the suggestion that there has been a change in the time when the petition for removal may be filed, because of the words in the act of 1875 authorizing the filing of the petition for removal "before or at the term at which said cause could be first tried.” The idea seems to be, that these words authorized the filing of the petition in vacation, and therefore the action of the state court is not necessary. But the act of 1789 authorized the petition for removal to be filed by the applicant "at the time of entering his appearance in such state court," and this might be in vacation as well as in term time. i Har. Ch. Pr. 169; Sweeny v. Coffin, i Dill. 75. Besides, the words of the act of 1875 were manifestly intended to make certain the right of the applicant to file his petition for removal at any time before the trial term, which might be at the appearance term, or even earlier, and "at the time of entering his appearance in such state court.” There is nothing in the difference in the wording of the two acts to create a substantial distinction between them. The duty of the state court, and its rights, if it have any rights, are identically the same under both acts.
The language of each of these acts fairly implies positive action on the part of the state court in accepting the petition and surety, and concedes the continuance of its jurisdiction until a copy of the record is “entered as aforesaid in said Circuit Court of the United States first day of its then next session." There cannot be a doubt, moreover, that the state court would have the right to proceed in the cause after an application to remove, if, in fact, the application itself, or the case made by it, were insufficient to justify the transfer, or if the transfer were not perfected by filing the record in the circuit court at the time required. The jurisdiction of the United States court cannot attach until the jurisdiction of the state court has terminated, and that can only be when the state court has acted upon
the application, and conscientiously performed its duty, which it is to be presumed it always will do, by accepting the petition and surety. This was the uniform practice under the act of