Gay v. Ruff, No. 663

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation92 A.L.R. 970,54 S.Ct. 608,78 L.Ed. 1099,292 U.S. 25
Decision Date02 April 1934
Docket NumberNo. 663
PartiesGAY v. RUFF

292 U.S. 25
54 S.Ct. 608
78 L.Ed. 1099
GAY

v.

RUFF.

No. 663.
Argued Feb. 12, 13, 1934.
Decided April 2, 1934.

[Syllabus from 25-26 intentionally omitted]

Page 26

Messrs. Archibald B. Lovett and Robert M. Hitch, both of Savannah, Ga., for petitioner.

Mr. Thomas W. Hardwick, of Augusta, Ga., for respondent.

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Mr. Justice BRANDEIS delivered the opinion of the Court.

Ruff brought in a state court of Georgia this suit against Gay, as receiver of the Savannah & Atlanta Railway, appointed by the federal court for southern Georgia sitting in equity. The cause of action alleged is the homicide of plaintiff's minor son as a result of the negligent operation of a train by employees of the receiver. Before trial in the state court, the receiver duly filed in the appropriate federal court a petition for removal and certiorari, under the amendment made by Act of August 23, 1916, c. 399, 39 Stat. 532 to Judicial Code § 33 (28 USCA § 76), which inserted therein the clause: 'or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer.'1

The federal court denied a motion to remand, (D.C.) 3 F.Supp. 264; and thereafter dismissed the suit, entering a

Page 28

final judgment for want of prosecution. The Circuit Court of Appeals for the Fifth Circuit reversed that judgment, with direction to set aside the dismissal and remand the cause to the state court. 67 F.(2d) 684. Because of conflict of decisions,2 certiorari was granted to determine whether the amendment to Judicial Code § 33 authorizes a receiver of a railroad appointed by a federal court sitting in equity to remove from a state court an action brought against him as receiver for damages resulting from the negligent operation of a train by his employees.

First. The respondent raises the preliminary question whether this Court has jurisdiction to review the action of the Circuit Court of Appeals. The contention is that this Court lacks jurisdiction to review a judgment directing the remand to a state court, because Judicial Code § 28 (28 USCA § 71), declares: 'Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.'3

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This provision, enacted in 1887, was broadly construed by this Court as prohibiting review of an order of remand, directly or indirectly, by any proceeding. The prohibition was applied to appeals from, and writs of error to, the federal circuit (and later district) court; to writs of error to a state court after final judgment there; and to mandamus in this Court.4 In German National Bank v. Speckert, 181 U.S. 405, 409, 21 S.Ct. 688, 45 L.Ed. 926, where the trial court had refused to remand the case to the state court and the Circuit Court of Appeals had reversed that judgment and ordered a remand, this Court held that it was without jurisdiction to review the latter's action. While adverting in support of its conclusion to the broad construction which had been given to the above-quoted prohibition, the Court ruled there that the fact that an order of remand is not a final judgment precluded its review by writ of error.5

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But by reason of the extensive power to issue writs of certiorari which the Circuit Court of Appeals Act of 18916 thereafter gave to this Court, it may now review the action to the circuit court of appeals in directing the remand of a cause to the state court. That Act provided that in any case in which the judgment of the circuit court of appeals is made final, 'it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.' In Forsyth v. Hammond, 166 U.S. 506, 512, 17 S.Ct. 665, 41 L.Ed. 1095, it was held that the power given was unaffected by the condition of the case as it exists in the circuit court of appeals; that the power may be exercised before, as well as after, any decision by that court and irrespective of any ruling or determination therein; and that the sole essential of this Court's jurisdiction to review is that there be a case pending in the circuit court of appeals. The jurisdiction to review interlocutory orders was exercised in American Construction Co. v. Jacksonville, 148 U.S. 372, 13 S.Ct. 758, 37 L.Ed. 486; Denver v. New York Trust Co., 229 U.S. 123, 133, 33 S.Ct. 657, 57 L.Ed. 1101; Spiller v. Atchison, etc., R. Co., 253 U.S. 117, 121, 40 S.Ct. 466, 64 L.Ed. 810; and Du Pont Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016. And in The Three Friends, 166 U.S. 1, 49, 17 S.Ct. 495, 497, 41 L.Ed. 897, it was held that this Court could review a case pending in, and not yet decided by, the circuit court of appeals, with the same power and authority as if it had been carried here by appeal or writ of error 'that is, as if it had been brought directly from the district or the circuit court.' In Chicago, Burlington & Quincy R.R. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521, decided under the

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act of 1891, this Court, without questioning its power, reviewed the judgment of the circuit court of appeals reversing a judgment of dismissal and ordering a remand. Nor has the existence of the power been questioned by the Court since. 7

Second. The contention that the removal is authorized rests upon the amendment made by the act of 1916 to Judicial Code § 33. The argument for removal is that, since the receiver is an 'officer' of the federal court and an action for damages resulting from the negligent operation of a train by his employees is a suit 'for or on account of' an 'act done * * * in the performance of his duties as such officer,' the removal here in question is directed in such plain words that there is no room for any other construction of the statute. But the amendment may not be isolated from its context. It must be read in the light of the then existing provisions of section 33; of the then existing statute conferring the right to bring in a state court suits against receivers; of the statute denying removal from state to federal courts of a large class of cases similar in character to that before us; and of other legislation restricting the jurisdiction of federal trial courts. When the clause is so read, there arises at least a doubt whether Congress intended to give to the words inserted in section 33 the comprehensive meaning attributed to them. That doubt makes it appropriate to examine the history of the amendment, Binns v. United States, 194 U.S. 486, 495, 24 S.Ct. 816, 48 L.Ed. 1087; United States v. St. Paul, Minn. & Manitoba Ry., 247 U.S. 310, 318, 38 S.Ct. 525, 62 L.Ed. 1130. And such examination makes it clear that Congress did not authorize the removal of this case.

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Judicial Code § 33 enables a defendant in a state court to remove the case before trial or final hearing there, and thus secure an adjudication by a federal court of first instance of the issues of fact as well as law involved in his justification under the federal statutes. Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648. The origin of that section is section 3 of the 'Force Act,' March 2, 1833, c. 57, 4 Stat. 632, 633—the nation's reply to South Carolina's threat of 'nullification.' The purpose of the Force Act was to prevent paralysis of operations of the federal government. The special aim of section 3 was to protect those engaged in the enforcement of the federal revenue law from attack by means of prosecutions and suits in a state court for violation of state law. This removal provision was extended by Act of March 3, 1875, c. 130, § 8, 18 Stat. 371, 401, to suits against 'any person for or on account of anything done by him while an officer of either House or Congress in the discharge of his official duty, in executing any order of such House.' These provisions only are embodied in Judicial Code § 33.8 The scope of the section was thus

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limited to cases arising out of the enforcement of the revenue laws or of some order of either House of Congress. And it applied in those cases only when the person defending caused it to appear that his defense was that in doing the acts charged he was doing no more than his duty under those laws or orders.9

To appreciate the exceptional character of the removal privilege conferred by section 33, that section should be compared with section 28. Of the two, section 33 alone provides for removal of a criminal case. Removal of civil causes is provided for in both section 33 and section 28 of the Judicial Code. But the civil cases to which section 33 is applicable are few. While section 28 applies to many. Under the latter, any officer of a federal court can remove a suit brought against him on account of any act done under color of his office or in the performance of his duties as such officer, because section 28 applies to 'any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, * * * of which the district courts of the United States are given original jurisdiction.' But in order to avail of the removal privilege conferred by section 28 in respect of a suit arising under the Constitution or laws of the United States, the facts showing that the suit is of

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that class must appear by the complaint in the state court;10 the amount in controversy must exceed $3,000, except in those cases where jurisdiction is conferred regardless of...

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92 practice notes
  • Allen v. Clark, No. 8158Y.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 29 Marzo 1938
    ...was sustained as arising under the laws of the United States. And see, Breard v. Lee, C.C. Cal., 1911, 192 F. 72; Gay v. Ruff, 1934, 292 U.S. 25, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970; Rogge v. Michael Del Balso, D.C.N.Y., 1936, 15 F.Supp. The fact that the process may have been invali......
  • Murphy v. Kodz, No. 19508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 21 Septiembre 1965
    ...Service Officer Shupe. 28 U.S.C. § 1442(a) (1); State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880); and see Gay v. Ruff, 292 U.S. 25, 33-34, 54 S.Ct. 608, 78 L.Ed. 1099 (1934). The constitutional supremacy accorded the general government in its sphere requires, or at least permi......
  • United States v. Nixon Nixon v. United States 8212 1766, 73 8212 1834, Nos. 73
    • United States
    • United States Supreme Court
    • 24 Julio 1974
    ...the case is now properly before this Court on the writ of certiorari before judgment. 28 U.S.C. § 1254; 28 U.S.C. § 2101(e). Gay v. Ruff, 292 U.S. 25, 30, 54 S.Ct. 608, 610, 78 L.Ed. 1099 (1934).7 II JUSTICIABILITY In the District Court, the President's counsel argued that the court lacked ......
  • Ryan v. Dow Chemical Co., No. 79 Civ. 747
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 29 Enero 1992
    ...in 1916 to extend the power of removal to judicial officers faced with suits based on their official actions. See, e.g., Gay v. Ruff, 292 U.S. 25, 27 n. 1, 54 S.Ct. 608, 609 n. 1, 78 L.Ed. 1099 The accumulation of specific protections for officials in each of the three branches culminated i......
  • Request a trial to view additional results
91 cases
  • Allen v. Clark, No. 8158Y.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 29 Marzo 1938
    ...was sustained as arising under the laws of the United States. And see, Breard v. Lee, C.C. Cal., 1911, 192 F. 72; Gay v. Ruff, 1934, 292 U.S. 25, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970; Rogge v. Michael Del Balso, D.C.N.Y., 1936, 15 F.Supp. The fact that the process may have been invali......
  • Ryan v. Dow Chemical Co., No. 79 Civ. 747
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 29 Enero 1992
    ...in 1916 to extend the power of removal to judicial officers faced with suits based on their official actions. See, e.g., Gay v. Ruff, 292 U.S. 25, 27 n. 1, 54 S.Ct. 608, 609 n. 1, 78 L.Ed. 1099 The accumulation of specific protections for officials in each of the three branches culminated i......
  • Driscoll v. Burlington-Bristol Bridge Co., Civ. No. 11907.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 25 Febrero 1949
    ...S.Ct. 1113, 29 L.Ed. 319. Modern statutes have greatly diminished the importance of those decisions by narrowing their scope. Gay v. Ruff, 292 U.S. 25, 35, 54 S.Ct. 608, 613, 78 L.Ed. 1099, 92 A.L.R. 970; Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 450, 77 L.Ed. 903.......
  • Holdren v. Buffalo Pumps, Inc., Civil Action No. 08cv10570-NG.
    • United States
    • U.S. District Court — District of Massachusetts
    • 4 Mayo 2009
    ...the prosecution of the federal agents who collected those tariffs. See Force Act of March 2, 1833, ch. 57, 4 Stat. 632-33; Gay v. Ruff, 292 U.S. 25, 32, 54 S.Ct. 608, 78 L.Ed. 1099 (1934) (discussing history and origins of the federal officer removal statute); Watson v. Philip Morris Cos., ......
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