Johnson v. Wells, Fargo & Co.

• Decision Date: 17 November 1899
• Docket Number: 12,739.
• Citation: 98 F. 3
• Court: U.S. District Court — Northern District of California
• Parties: JOHNSON v. WELLS, FARGO & CO.

98 F. 3

JOHNSON v. WELLS, FARGO & CO.

No. 12,739.

United States Circuit Court, N.D. California.

November 17, 1899

McGowan & Squires, for plaintiff.

E. S Pillsbury, for defendant.

MORROW Circuit Judge.

This is an action to recover damages in the sum of $50 for the alleged neglect of the defendant, as a common carrier, to receive and transport a certain package of photographs offered and tendered by plaintiff for conveyance and transportation. The case was originally removed to this court under the act of March 3, 1887 (24 Stat. 552), as corrected by the act of August 13, 1888, (25 Stat. 433), and the jurisdiction of this court was invoked by the defendant under section 629 of the Revised Statutes, providing that the circuit courts shall have original jurisdiction of all suits at law or in equity arising under any act providing for revenue. The court held that, although the court might have such original jurisdiction of the case, it could not acquire that jurisdiction under the act of removal, where it did not appear from the plaintiff's statement of his cause of action that it was one arising under the constitution, laws or statutes of the United States, and that more than $2,000 exclusive of interest and costs, was involved. The case was accordingly remanded to the state court. Johnson v Wells, Fargo & Co. (C.C.) 91, Fed. 1. The case is now here upon a writ of certiorari, under section 643 of the Revised Statutes. When the writ was granted upon the petition of the defendant, the question of jurisdiction was reserved to be further considered upon a motion to quash the writ. That motion having been made by the plaintiff, and also a motion to remand, the question of jurisdiction is now before the court for determination, and the solution of the question depends upon the construction to be given to section 643 of the Revised Statutes. This section relates to the removal of suits and prosecutions against officers, and persons acting under authority of such officers, on account of acts done under the revenue and registration laws of the United States. It is a long section, providing various details for the removal of such suits. The material part of the section, so far as it relates to this case, may be stated in the following language: When any civil suit 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, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed, by a writ of certiorari, from the state court into the circuit court next to be holden in the district where the dame is pending, upon the petition of such defendant. The office and function of the common-law writ of certiorari issued from the king's bench or out of chancery was to supervise the action of inferior courts and quasi judicial proceedings where an individual was sued in a court having no jurisdiction, and no appeal or writ of error was given by law, or where the jurisdiction had been exceeded, or where it appeared that the prosecution was against the law. The purpose of the writ was in all cases to prevent injustice. Board v. Magoon, 109 Ill. 142, 146. It is clear that the writ of certiorari provided for in section 643 of the Revised Statutes is not the common-law writ, but a statutory writ, performing the office and function of an order of removal; and the jurisdiction of the circuit court to issue the writ and entertain the suit after such removal is dependent entirely upon the provisions of the statute as applied to the facts of the case.

It is alleged in the complaint in this case that the defendant was at the times mentioned in the complaint a common carrier of freight, goods, and merchandise, and engaged in the business of carrying freight, goods, and merchandise, as such common carrier, within the state of California, and to and from different parts thereof, and particularly to and from the city and county of San Francisco and the city of Oakland, in said state, and was at all times mentioned offering to carry the class of freight mentioned and described in the complaint; that on or about the 12th day of September, 1898 the plaintiff, being desirous of having the defendant carry a certain package of photographs from said city and county of San Francisco to said city of Oakland, offered and tendered to defendant said package of photographs, to be by said defendant, as such common carrier, conveyed and transported from said city and county of San Francisco to said city of Oakland, for which the charge of said defendant for said package was 25 cents; that the plaintiff offered and tendered to said defendant the said sum of 25 cents as freight on said package; that the defendant refused to accept or receive said package, or to convey or transport the same, or to permit it to be conveyed or transported upon or over any of its lines or conveyances; that by reason of the defendant's refusal to receive, transport, or convey said package of photographs plaintiff was compelled to send the same by other conveyance, was greatly inconvenienced, incurred additional cost and expense, and was damaged in the sum of $50. The defendant, in its petition for removal, refers to the act of congress of the United States entitled 'An act to provide ways and means to meet war expenditures, and for other purposes,' approved June 13, 1898, and particularly to the provision that from and after the 1st day of July, 1898, it shall be the duty of every carrier and express company to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding for each shipment secured for carriage and transportation, whether in bulk, or in boxes, bales, packages, bundles, or not so inclosed or included; and that there shall be duly attached and canceled, as in said act provided, to each of said bills of lading, manifest, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent; that on the said 12th day of September, 1898, and when the...