Bryant Bros. Co. v. Robinson

• Decision Date: 31 December 1906
• Docket Number: 1,543.
• Citation: 149 F. 321
• Parties: BRYANT BROS. CO. v. ROBINSON.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F. 321

BRYANT BROS. CO. v. ROBINSON.

No. 1,543.

United States Court of Appeals, Fifth Circuit.

December 31, 1906

This suit was begun by the plaintiff, Bryant Bros. Company, a corporation organized under the laws of Texas, filing its petition in a district court of Dallas county, Tex., against the defendant, D. A. Robinson, the duly qualified and acting postmaster of Dallas, Tex. The petition was verified by plaintiff's affidavit, and its allegations are substantially as follows: That plaintiff was engaged in the business of selling a mineral rod, which was a legitimate article of commerce, and which had been thoroughly tested many times and found efficient; that plaintiff's business as a seller of said rods yielded it a net revenue of about $5,000 per annum, the average selling price of the rods being about $8, and the average profit being about $3 each rod that plaintiff and its predecessors had been engaged in the business at Dallas for about eight years, during which time they always had been solvent and responsible financially, and never had been sued or otherwise disturbed by persons who had purchased rods; that plaintiff had been summoned to appear before the Assistant Attorney General for the Post Office Department at Washington, to show cause why a fraud order should not issue against it; that it had appeared before said Assistant Attorney General of the Post Office Department, and had filed its answer and introduced evidence, both of which showed without contradiction that plaintiff was not using the mails for the conduct of a scheme devised to defraud; that the evidence offered by the plaintiff was all the evidence produced on the hearing; that the Assistant Attorney General never had before him any other evidence than that introduced by the plaintiff (all the evidence aforesaid being attached as exhibits to the petition); that the Assistant Attorney General, whose name was R.P. Goodwin, made the order without any evidence proving or tending to prove that the plaintiff was engaged in a scheme or device for obtaining money through the mails by means of false or fraudulent pretenses representations, or promises, and that the order was made by the said R.P. Goodwin, but was signed by George B. Cortelyou Postmaster General, who had never heard nor considered any evidence bearing on the fact as to whether or not the plaintiff had been conducting a scheme or device for obtaining money through the mails by false or fraudulent pretenses, representations, or promises; that the order so made was what is usually known as a 'fraud order,' the bill setting up the terms and legal effect of the order that plaintiff's business was largely conducted through the post office, and could not be conducted successfully without using the mail and postal facilities; that the defendant, as postmaster, was enforcing said order; that letters containing checks, drafts, money orders, and money, addressed to the plaintiff, had been detained, and were then being held in the post office at Dallas, and would within a few days be returned by the postmaster to the senders with the envelopes marked 'Fraudulent,' the effect of all of which would be to destroy the business of the plaintiff.

An injunction was granted by the state judge. The defendant presented his petition to the United States Circuit Court for the Northern District of Texas, in which he described the suit which had been brought against him, and alleged that the suit for injunction seeks 'to restrain him from performing his duties as the postmaster of the United States of America, at Dallas, Tex., to wit, his duty and duties under the laws and regulations of the Post Office Department of the United States of America, which said laws and regulations are a portion and a part of the revenue laws of the said United States government, and to prevent him, as aforesaid, from carrying into effect the lawful orders of the said George B. Cortelyou, Postmaster General of the United States, as aforesaid, which said orders were made under the laws of the United States of America; that all of the acts sought to be restrained and enjoined in the said suit are the acts and duties required of this petitioner as the said officer of the United States of America, and under color of his said office, and by authority of the said postal laws of the United States of America. ' The defendant concluded his petition with a prayer that the suit be removed from the state court to the Circuit Court. The cause having been removed to the Circuit Court, a motion was made by the plaintiff to remand it to the state court. The Circuit Court overruled this motion. Afterwards, a final decree was made, sustaining demurrers to the bill, and the bill was dismissed. The plaintiff appealed to this court. A further statement of the procedure in the cause appears in the opinion.

J. M. McCormick, for appellant.

Wm. H. Atwell, U.S. Atty., for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge (after making the foregoing statement of the case).

We first consider the assignment that the court erred in refusing to remand the cause to the state court. The petition beginning the suit in the state court shows that it was brought against the defendant 'as the duly qualified and acting postmaster at Dallas, Tex.' The relief sought is against certain official acts of the postmaster performed by him under the orders and directions of the Postmaster General. It is a suit against an officer of the United States, and the official character of the defendant appears from the plaintiff's petition. The first section of the act of August 13, 1888, confers jurisdiction on the Circuit Courts of the United States, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the Constitution or laws of the United States. It is provided by the second section of the same act that any suit of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, may be removed by the defendant or the defendants therein to the Circuit Court of the United States for the proper district. Act Aug. 13, 1888, c. 866, 25 Stat. 433, 1 Rev. St. Supp. (2d Ed.) p. 611 (U.S. Comp. St. 1901, p. 508): A suit against an officer of the United States for acts done in the performance of official duties is a case arising under the laws of the United States. Bachrack v. Norton, 132 U.S. 337, 10 Sup.Ct. 106, 33 L.Ed. 377; Sonnentheil v. Christian Moerlein Brewing Co., 172 U.S. 401, 19 Sup.Ct. 233, 43 L.Ed. 492. The case was, therefore, clearly removable under this statute. Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289, 27 L.Ed. 984; Eighmy v. Poucher (C.C.) 83 F. 855; New Orleans National Bank v. Merchant (C.C.) 18 F. 841; Black's Dillon on Removal of Causes, Sec. 124. The proper procedure for removal under this act was for the defendant to file a petition in the suit in the state court, and to file a bond with surety, with condition for his entering in the Circuit Court on the 1st day of its next session a transcript of the record from the state court, and for the payment of costs that may be awarded by the Circuit Court if that court should hold that the suit was wrongfully removed. It does not appear from the record that the defendant filed any such petition or bond in the state court. The record shows that he made application to the federal court under section 643 of the Revised Statutes (U.S. Comp. St. 1901, p. 521) and under the provisions of that section obtained the removal of the cause. Although no petition was filed in the state court, that court, on receiving notice of the proceeding in the federal court to remove the cause, made the following order:

'It is ordered by the court that the above-styled and numbered cause be removed to said United States court, and the clerk is directed to transmit the filed papers, together with copies of all orders made by this court in said cause, or a transcript of the same, and together with a bill of all costs incurred in said cause in this court, duly certified. * * * '

Pursuant to this order of the state court, a transcript of the record in the case was duly filed in the Circuit Court. The plaintiff moved the Circuit Court to remand the case to the state court, contending that it appeared from the record that the cause was not removable under the provisions of section 643 of the Revised Statutes. The Circuit Court refused to grant this motion, and its refusal is assigned as error.

Section 643 of the Revised Statutes provides that:

'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 such officer on account of any act done under color of his office, or of any such law, on account of any right, title or authority claimed by such officer, or other person under such law * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial in the Circuit Court,' etc.

The cause was properly removable under this section if the postmaster can properly be called an 'officer appointed under, or acting by authority of any revenue law of the United States. ' It is said in Black's Dillon on Removal of Causes, Sec. 41, that 'the post office laws of the United States are 'revenue laws,' within the meaning of this statute. ' In Warner v....