Birdseye v. Shaeffer

• Decision Date: 20 December 1888
• Citation: 37 F. 821
• Parties: BIRDSEYE v. SHAEFFER et al.
• Court: U.S. District Court — Western District of Texas

37 F. 821

BIRDSEYE v. SHAEFFER et al.

United States Circuit Court, W.D. Texas.

December 20, 1888

Hancock Shelly & Hancock and Bethel Coopwood, for plaintiff.

John A Green, N. O. Green, McCampbell & Welch, and Stayton &amp Kleberg, for defendants.

MAXEY J.

This is a motion made by the plaintiff, in which he seeks to set aside an order, granted at a former day of the present term remanding the cause to the state court. The suit was originally instituted by the plaintiff, a citizen of the state of New York, in the district court of Nueces county, against Shaeffer et al., citizens of Texas, to recover a large and valuable tract of land situated in Nueces county.

Under the local prejudice clause of the act of 1867, (Rev. St. Sec. 639, subd. 3,) plaintiff filed in the state court a petition, bond, and affidavit in the statutory form to remove the cause into this court. September 2, 1885, the district judge entered an order authorizing the removal of the suit in the following form: 'It is ordered that the security offered by the plaintiff be accepted, and said bond approved, and that this court proceed no further in this cause, and that this cause be removed into the United State circuit court in and for the Western district of Texas, at San Antonio. ' In obedience to the order of removal, the transcript was filed in this court on the 2d day of November, 1885. November 3, 1885, the defendants filed a motion to remand the suit to the state court, and the motion was granted; but no inquiry into the truth of the affidavit made by the plaintiff for removal of the suit was sought in that motion, and no such inquiry at that time was entered upon by the court. On the 5th day of November, 1885, the remanding order was set aside, and the cause retained in the circuit court for trial. On October 14, 1887, the defendants, in accordance with the provisions of the act of March 3, 1887, presented to the court an application, under oath, in which they deny the existence of prejudice against the plaintiff in Nueces county, and pray that the truth of plaintiff's affidavit for removal, and the grounds thereof, be inquired into, and for an order remanding the suit to the court of original jurisdiction. Upon the issue thus raised each party took the testimony of a number of witnesses by deposition, and others were personally present, and the question was finally submitted at this term for determination. After hearing the proofs and the arguments of counsel, the court was not satisfied that the plaintiff would not be able to obtain justice in the district court of Nueces county, and an order was accordingly made remanding the suit to that court. The present motion seeks to set aside the last-mentioned order on the ground that so much of the act of March 3, 1887, as authorizes causes then pending in the circuit courts, and properly removed thereto under the provisions of a prior act, to be remanded to the state courts, is in contravention of the constitution. The particular clause of the act complained of by the plaintiff reads as follows:

'At any time before the trial of any suit which is now pending in any circuit court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe, and did believe, that from prejudice or local influence he was unable to obtain justice in said state court, the circuit court shall, on the application of the other party, examine into the truth of said affidavit, and the grounds thereof; and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto. ' Laws U.S. 1887-88, p. 435.

The law, in its terms, applies to removed suits pending in the circuit court, and which have not been determined. 'At any time,' says the statute, 'before the trial of any suit pending,' an examination shall be made into the truth of the affidavit for removal, and the grounds thereof. It cannot be said, therefore, that congress intended by the act to deprive a person of the fruits of a judgment which had been previously recovered. The order of November 5, 1885, retaining the cause in this court, cannot be so regarded, for the reason that it is in its nature interlocutory, a proceeding in fieri, and subject to revision and correction by the court, if deemed erroneous, until the cause had passed beyond its jurisdiction to an appellate tribunal after the entry of final judgment. This rule of practice would obtain without the aid, and in the absence, of the act of 1887.

Speaking upon this point, it is said, in the case of Ayres v. Wiswall, 112 U.S. 190, 5 S.Ct. 90, that--

'The fifth section of the act of March 3, 1875, makes it the duty of the circuit court of the United States to remand a cause which has been removed from a state court when it shall appear to the satisfaction of the court, at any time after the suit has been removed, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court. For this purpose the circuit court retained its power over the suit and the parties until the end of the term at which the final decree was rendered. The parties were not, in law, discharged from their attendance in the cause until the close of the term, and the decree, though entered, was 'in the breast of the court' until the final adjournment.'

Prior to the passage of the act of March 3, 1887, therefore, no final judgment had been entered in the cause, and the suit stood as other suits upon the docket awaiting disposition according to law and the rules of practice of the court. And no reason is perceived why the former order of the court may not have been reconsidered, if erroneous in point of law, and an order made remanding the cause pursuant to the provisions of previous statutes, subject, however, to the plaintiff's right under those statutes to have it reviewed by the supreme court. Railroad Co. v. Koontz, 104 U.S. 15, 16. That being the status of the suit on March 3, 1887, congress on that day passed the act authorizing, in one of its clauses, an inquiry to be made into the truth of the affidavit made by the plaintiff for removal, leaving it discretionary with the courts to remand or retain the cause as the ends of justice, upon the case shown by the testimony, should demand. See act supra.

Was the objectionable clause of the statute enacted by congress in pursuance of a power conferred by the constitution? The question here is simply one of constitutional power. The policy of the law, right or wrong, wise or unwise, is a matter remitted entirely to the wisdom and discretion of the law-making power. Nor can the courts inquire into the motives of the legislature; they can only examine into its power under the constitution. Ex parte McCardle, 7 Wall. 514. And while the courts may declare an act of congress to be repugnant to the constitution, 'the duty is one of great delicacy, and only to be performed where the repugnancy is clear, and the conflict irreconcilable. Every doubt is to be resolved in favor of the constitutionality of the law. ' Mayor v. Cooper, 6 Wall. 251. Bearing in mind these cardinal principles which guide the courts in construing statutes, let us examine into the power of congress to enact the law under consideration. To arrive at a correct understanding of the question it will be necessary to look to the powers of the circuit courts, and the sources whence they derive their jurisdiction. 'The judicial power,' by the constitution, 'shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. ' Const. U.S. art. 3, Sec. 1. The inferior courts, therefore, while authorized by the constitution, owe their powers and jurisdiction immediately to congress, and can have no powers not conferred by congress. Upon this point it is said by the supreme court in Cary v. Curtis: 'That the judicial power of the United States, although it has its origin in the constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of congress, who possess the sole power of creating the tribunals (inferior to the supreme court) for the exercise of judicial power, and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the former powers limited by its own discretion merely. It follows, then, that the courts created by statute must look to the statute as the warrant for their authority. Certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may be clearly denied to them. This argument is in no wise impaired by admitting that the judicial power shall extend to all cases arising under the constitution and laws of the United States. Perfectly consistent with such an admission is the truth that the organization of the judicial power, the definition and distribution of the subjects of jurisdiction in the federal tribunals, and the modes of their action and authority, have been, and of right must be, the work of the legislature. * * * The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law.' 3 How. 245, 246.

The court uses this...