Gibson v. Bellingham & N. Ry. Co.

• Decision Date: 20 April 1914
• Docket Number: 2708.
• Court: U.S. District Court — Western District of Washington
• Parties: GIBSON v. BELLINGHAM & N. RY. CO.

213 F. 488

GIBSON v. BELLINGHAM & N. RY. CO.

No. 2708.

United States District Court, W.D. Washington, Northern Division.

April 20, 1914

Romaine & Abrams, of Bellingham, Wash., for plaintiff.

George W. Korte, of Seattle, Wash., and Newman & Kindall, of Bellingham, Wash., for defendant.

NETERER District Judge.

Plaintiff brought action against the defendant in the superior court of Washington for personal injuries sustained under the Employers' Liability Act. Thereafter, on motion of the defendant, the action was removed to this court. A motion has been made to remand the cause.

Section 28, Judicial Code, provides:

'That no case arising under an act entitled 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shall be removed to any court of the United States.'

The Constitution and laws of Washington provide for a verdict in civil actions when 10 of a jury of 12 consent thereto. It is contended that the provision of the Judicial Code denying the right of removal is in contravention of the seventh amendment to the Constitution of the United States, unless it be held that the Washington state court is not a court of 'competent jurisdiction' within the meaning of the provision.

The constitutionality of the provision denying the right of removal must be sustained in any event. Courts inferior to the Supreme Court are created by acts of Congress, and their jurisdiction is dependent upon the same source. Congress may confer or withhold from them power to hear and determine any of the cases to which the judicial power of the United States extends; and it therefore follows that it may prescribe when the right of removal from a state court shall exist. Turney v. Bank of North America, 4 Dall. 10, 1 L.Ed 718; Gaines v. Fuentes, 92 U.S. 17, 18, 23 L.Ed 524; Lewis Publishing Co. v. Wyman (C.C.) 152 F. 200; Anaconda Copper Min. Co. v. Butte-Balaklava (D.C.) 200 F. 808.

Defendant further contends that the Washington state court is not a court of 'competent jurisdiction' within the meaning of the provision denying the right of removal, for the reason that the seventh amendment to the Constitution provides for a trial by jury, which has been held to mean 12 men unanimously consenting, and the Constitution and laws of Washington provide for a verdict by the consent of a less number than 12.

The seventh amendment provides:

'In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved.'

It has frequently been held that this provision contemplated a jury as constituted at common law of which the unanimous verdict of 12 men was an essential feature. Thompson v. Utah, 170 U.S. 343, 18 Sup.Ct. 620, 42 L.Ed. 1061; American Pub. Co. v. Fisher, 166 U.S. 464, 17 Sup.Ct. 618, 41 L.Ed. 1079; Rasmussen v. United States, 197 U.S. 516, 25 Sup.Ct. 514, 49 L.Ed. 862; Black v. Jackson, 177 U.S. 349, 20 Sup.Ct. 648, 44 L.Ed. 801. Those were cases, however, arising in the United States District or Circuit Courts, or in the territories, the courts of which were created by congressional act. It has been held by a long line of decisions that the seventh amendment does not apply to the states, and that a state is not inhibited by the federal Constitution from providing for a jury of less than 12 men, or for a verdict that is not unanimous. Edwards v. Elliott, 21 Wall. 532, 557, 22 L.Ed. 487; Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672; Twitchell v. Pennsylvania, 7 Wall. 321, 19 L.Ed. 223; Walker v.

Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Maxwell v. Dow, 176 U.S. 581, 20 Sup.Ct. 448, 494, 44 L.Ed. 597.

Nor is a trial under a state statute abridging the number of jurors, or dispensing with the feature of unanimity, a denial of 'due process' within the inhibition of the fourteenth amendment, which does not apply to the states. Hurtado v. California, 110 U.S. 517, 4 Sup.Ct. 111, 292, 28 L.Ed. 232; Kennard v. Louisiana, 92 U.S. 480, 23 L.Ed. 478; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616. Congress cannot enlarge the jurisdiction of a state court, nor has it power to prescribe rules of procedure or methods of trial to be followed in a state tribunal. Claflin v. Houseman, 93 U.S. 141, 23 L.Ed. 833.

A state may constitute its tribunals for the enforcement of rights and redress of wrongs, and so long as it does not infringe the 'due process of law' clause of the fourteenth amendment, and comes within the classic words of Mr. Webster, 'The general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' it is in conflict with no provision of the federal Constitution. Within that sphere the power which the state court may wield is necessarily determined by the authority which calls it into being. Its power to take cognizance of and redress a wrong is the primary question to be considered in determining its 'competency'; the particular method of trial adopted is a secondary matter, and becomes important only when it is such as to come in conflict with the fourteenth amendment, and amount to a deprivation of rights there guaranteed, without due process of law. Then and only then could its method of procedure affect its power or jurisdiction. When its method of procedure satisfies this test, we must look to the authority creating it, and defining its powers and jurisdiction, to determine whether it is 'competent,' whether it has the power to hear and determine the particular controversy and afford the appropriate relief.

Article 4, Sec. 6, of the Constitution of Washington, provides:

'The superior court shall have original jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to one hundred dollars. * * * The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court.'

'The superior courts of this state are courts of general jurisdiction. ' State ex rel. Reed v. Jones, 2 Wash. 662, 665, 27 P. 452, 26 Am.St.Rep. 897.

It conclusively appears from this section that the superior court of the state has power to hear and determine a controversy similar to the one involved in this suit. It appears from the decisions of the Washington Supreme Court that the superior courts may take cognizance of actions for personal injuries, and that actions for such injuries are brought and tried, not only when the injury occurred within the state, but where the right of action arose...