City of Detroit v. Detroit City Ry. Co.

• Citation: 54 F. 1
• Parties: CITY OF DETROIT v. DETROIT CITY RY. CO. et al.
• Decision Date: 05 January 1893
• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

54 F. 1

CITY OF DETROIT v. DETROIT CITY RY. CO. et al.

United States Circuit Court, E.D. Michigan.

January 5, 1893

Charles A. Kent and Benton Hanchett, for complainant.

Henry M. Duffield, John Co. Donnelly, Ashley Pond, and Otto Kirchner, for defendants.

Before TAFT, Circuit Judge, and SEVERENS and SWAN, District Judges.

TAFT Circuit Judge.

This is a motion to remand a suit in equity, which has been removed here from the circuit court of Wayne county, Mich. The averments of the bill filed by the city of Detroit, stated generally, are that the Detroit Citizens' Street Railway is in the possession and enjoyment of a franchise to operate street railways in a number of the streets of the city; that by virtue of a limitation of the constitution of the state of Michigan the franchise will expire May 9, 1893; that the railway company claims that the franchise will not expire until 1909; that the city wishes to sell the franchise at once, so as to enable the purchaser to make necessary preparations to operate railways in May, 1893, but that the claim of the company prevents the sale. The prayer of the petition is that the franchise of the company be decreed to expire as claimed by complainant, and that a mandatory injunction issue, compelling the defendant company to vacate the streets with its tracks, etc., in May, 1893. The Detroit City Railway, upon which the franchise was originally conferred, and from which, in 1891, by mesne conveyance, the present company obtained it, is made a party. Two deeds of trust conveying this franchise were given,-- the one by the Detroit City Railway, in 1890, to Miller and Muir, trustees to secure bonds amounting to $1,000,000; and the other by the Detroit Citizens' Street-Railway Company to the Washington Trust Company of the city of New York, to secure $2,000,000 of bonds. The trustees under the deeds of trust are made parties to the bill.

The bill was filed March 15, 1892. An order for service by publication on the proper affidavit was taken against the Washington Trust Company March 22d. All the defendants except the trust company were personally served, their appearances were duly entered, and their separate answers filed. The answers set forth additional details in the history of the franchise enjoyed by the railway company, deny that they will expire in May, 1893, and aver facts which are said to estop the complainant from claiming as in its bill. On August 13th proof of publication against the Washington Trust Company was made. The notice published advised the Washington Trust Company of the pendency of a suit described as a suit of the City of Detroit against the City Railway Company, the Detroit Citizens' Street-Railway Company, Sidney D. Miller and William K Muir, trustees, and the Washington Trust Company. An order pro confesso was taken on the same day against the Washington Trust Company. On August 19, 1892, the following entry was made in the case:

'It is hereby stipulated and agreed that the default heretofore entered in this cause against the Washington Trust Company of the City of New York, one of the defendants herein, for nonappearance in said cause, may be set aside, and that said defendant may answer to the bill of complaint filed in said cause.'

On the same day the answer was filed. The corporate name of the trust company is 'The Washington Trust Company of the City of New York,' the words 'of the City of New York' being a part thereof. On the 26th day of August the solicitor for the complainant served the solicitor for the trust company with notice that the suit would be brought on for hearing on bill and answer at the next term of court, which would begin September 13th. On October 19, 1892, before any hearing was had in accordance with the notice, the trust company presented a petition to Judge Swan, of this court, for the removal of the suit on the ground that by reason of prejudice and local influence the petitioner could not obtain justice in the Wayne circuit court, or any other court in the state to which, for such cause, the case could be removed. The petition states the jurisdictional facts, and refers to an affidavit accompanying it, to make it appear to the court that its averment in regard to prejudice and local influence is well founded. Upon the petition and affidavit Judge Swan made the order removing the cause as prayed. Subsequently a motion to remand the cause was made by the solicitor for the city of Detroit on the following grounds:

'(1) The cause was not subject to removal under the statutes of the United States applicable thereto. (2) The cause was not removed within the time required by said statement; it was not removed until after the first term at which it could have been tried. (3) The affidavit and petition upon which such order was based do not contain any legal evidence of the facts therein stated. (4) The facts stated in said affidavit and petition, if true, do not offer any evidence that said Washington Trust Company, from prejudice or local influence, was not able to obtain justice in said circuit court for the county of Wayne, in chancery.'

We shall consider these grounds in order.

1. The act under which this removal is to be sustained, if at all, was passed August 13, 1888, (25 St. c. 866, p. 433,) to correct the enrollment of an act approved March 3, 1887, (24 St. c. 373, p. 552.) The act is an amendment of the act of March 3, 1875, determining the jurisdiction of circuit courts of the United States, and regulating the removal of causes from state courts. By the first section the original jurisdiction of circuit courts of the United States is defined. Part of the second section is as follows:

'That in any suit of a civil nature in law or in equity arising under the constitution or laws of the United States or treaties made or which shall be made under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. 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 which 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 nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. And where a suit is now pending or may hereafter be 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 such citizen of another state may remove such suit into the circuit court of the United States it shall be made to appear to such circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or any other state court to which the defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause.'

It has been held by the supreme court of the United States in Re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, that only suits involving $2,000 or more can be removed for local prejudice. The petition for removal shows that the necessary amount is involved. It has been held by the supreme court of the United States in Re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, that only suits involving $2,000 or more can be removed for local prejudice. The petition for removal shows that the necessary amount is involved. It has been held by Judge Jackson in Whelan v. Railroad Co., 35 F. 849, and in Thouron v. Railway Co., 38 F. 673, that under this act, where all the plaintiffs in a state court are citizens of the state where suit is brought, a single defendant, being a citizen of another state, may remove the case into the proper United States circuit court for prejudice and local influence, even though he is united as codefendant with citizens of the same state as the plaintiffs and the nonresident removing defendant. We understand the chief justice in the case of Wilder v. Iron Co., 46 F. 676, to concede and assume the correctness of the view of Judge Jackson as given above. It follows that, as the city of Detroit, the sole plaintiff here, is a citizen of Michigan, and the trust company, one of the defendants, is a citizen of New York, the order of removal, so far as the citizenship of the parties is concerned, was authorized by statute.

Counsel for complainant do not seriously dispute the correctness of the foregoing views, but the ground which they vigorously press upon the court for excluding this from the cases included within the local prejudice clause is very different. They say that the only question at issue in this suit is one of law, and that questions presenting only questions of law are not removable under the statute for prejudice and local influence. It is conceded that the questions arising on the bill and answer involve simply the construction of the constitution of the state of Michigan, and the laws and ordinances passed thereunder, and are purely at law. The contention of counsel is that the prejudice and local influence which congress had in mind was that which would operate upon a...