Knapp v. Byram
| Decision Date | 22 July 1927 |
| Citation | 21 F.2d 226 |
| Court | U.S. District Court — District of Minnesota |
| Parties | KNAPP v. BYRAM et al. MEISENHELDER v. SAME. TIGHE v. SAME. FORD v. SAME. |
Tautges, Wilder & McDonald, of Minneapolis, Minn., for the motions.
F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, Minn., opposed.
Before CANT, MOLYNEAUX, and JOHN B. SANBORN, District Judges.
Plaintiffs brought these actions respectively in the state district court under the provisions of the federal Employers' Liability Act (45 USCA §§ 51-59 Comp. St. §§ 8657-8665). That act was originally passed in 1908 (35 Stat. 65, c. 149).
Except for an abortive act passed in 1906 (34 Stat. 232), this act of 1908 was new legislation. Prior thereto, federal legislation had not entered or occupied this field.
Section 7 of the Act of 1908 (45 USCA § 57 Comp. St. § 8663) provides as follows:
"That the term `common carrier' as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier."
In 1910, by 36 Stat. 291, c. 143, the following language was, for the first time, made a part of said act as an amendment to section 6 (45 USCA § 56 Comp. St. § 8662) thereof:
After the commencement of said actions, the defendants, in each thereof, caused the same to be removed to this court, claiming the right to such removal under the provisions of section 33 of the Judicial Code as amended (28 USCA § 76 Comp. St. § 1015). Thereafter the plaintiffs moved that such cases be remanded to the state court, and their right to such removal is the question before the court.
Section 33 of the Judicial Code originally provided that certain civil suits and criminal prosecutions instituted in the state courts against certain persons acting under authority of the laws of the United States might be removed to the proper court of the United States for trial and further disposition.
On August 23, 1916 (39 Stat. 532, c. 399), said section was amended by inserting therein for the first time, the following words: "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," so that the section now reads as follows so far as the same is important in this case, viz.:
"When any civil suit or criminal prosecution is commenced in any court of a state, * * * 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, * * * the said suit or prosecution may * * * be removed" to the proper United States District Court.
The defendants in these cases are receivers appointed by the United States District Court and are, therefore, officers of that court.
Section 6 of the federal Employers' Liability Act above referred to as amended by the act of 1910, supra, taken alone, would deny defendants the right to remove said cases to this court.
Section 33 of the Judicial Code above referred to, as amended by the act of 1916, supra, taken alone, would give defendants that right.
Narrowed still further, the question is whether section 6 of the federal Employers' Liability Act, as amended in 1910, has been superseded or repealed by section 33 of the Judicial Code as amended in 1916. The question is one of legislative intent.
A statute may be repealed by the use of express words to that effect in subsequent legislation where the repealed statute is specifically referred to; or it may be expressly repealed by subsequent legislation wherein the language employed is that prior legislation inconsistent with the enactment of the repealing chapter, is repealed. Express repeals of the class first above referred to are the plain and direct expression of the legislative will. They give rise to no subsequent controversy as to what was intended. Their effect does not depend upon construction or interpretation.
The provisions in question, as found in section 6 of the federal Employers' Liability Act, as amended in 1910, denying the right of removal, have never been expressly repealed.
A statute may sometimes be repealed by implication when its provisions are in clear and irreconcilable conflict with subsequent legislation and where the intent to repeal is clearly manifest. To effect such repeal, judicial construction is required, and in such cases the attempt is to discover and declare the legislative intent where that intent is not expressed. Such repeals by implication are not favored. Wood v. United States, 16 Pet., star page 342, star page 362 et seq., 10 L. Ed. 987; Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; United States v. Greathouse, 166 U. S. 601, 605, 17 S. Ct. 701, 41 L. Ed. 1130; Frost v. Wenie, 157 U. S. 46, 58, 15 S. Ct. 532, 39 L. Ed. 614; Chew Heong v. United States, 112 U. S. 536, 549, 550, 5 S. Ct. 255, 28 L. Ed. 770.
"The result of the authorities cited is that when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the Legislature to repeal must be clear and manifest." Red Rock v. Henry, 106 U. S. 596, 601, 1 S. Ct. 434, 439 (27 L. Ed. 251).
The rule against repeals by implication is especially applicable "where the prior law is a special act relating to a particular case or subject and the subsequent law is general in its operation." The reason for the rule is more apparent in such cases. Petri v. Creelman Lumber Co., 199 U. S. 487, 497, 26 S. Ct. 133, 136 (50 L. Ed. 281).
To the same effect are Rodgers v. United States, 185 U. S. 83, 87, 22 S. Ct. 582, 46 L. Ed. 816; Gowen v. Harley (C. C. A.) 56 F. 973, 978 et seq.
Without laying emphasis expressly upon this point, the same was recognized and acted upon in South Carolina ex rel. Wagner v. Stoll, 17 Wall. 425, 431, 21 L. Ed. 650.
Strictly, and perhaps, technically, speaking, a special act is one which, by the terms thereof, is limited arbitrarily to particular persons, places or things, when legislation of the same character might be made to operate generally on all persons, places and things of the class to which those covered by the act respectively belong. Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. Law, 183, 58 A. 571; Dundee Mortgage, etc., Co. v. School District (C. C.) 21 F. 151, 158; State v. Cooley, 56 Minn. 540, 548, 549, 58 N. W. 150; State v. Rogers, 93 Minn. 55, 100 N. W. 659.
With reference to such legislation the rule is that "privileges granted by a special act or charter are not affected by general legislation on the same subject, but the special charter and general laws must stand together; the one as the law of the particular case, and the other as the general law of the land." Gowen v. Harley (C. C. A.) 56 F. 973, 979. See, also, Petri v. Creelman Lbr. Co., 199 U. S. 487, 497, 26 S. Ct. 133, 50 L. Ed. 281.
It is otherwise stated that "the fact that the one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general." Rodgers v. United States, 185 U. S. 83, 87, 88, 22 S. Ct. 582, 583 (46 L. Ed. 816). See, also, Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012.
Chief Justice White has stated the rule to be "that a special and particular statutory provision affording a remedy for particular and specific cases is not repealed by a general law unless the repeal be express or the implication to that end be irresistible." Ex parte United States, 226 U. S. 420, 424, 33 S. Ct. 170, 172 (57 L. Ed. 281).
The reasons for the rule last stated are set forth in the Rodgers Case above cited at pages 88 and 89 thereof (22 S. Ct. 583) as follows:
"The Legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention so to do."
And again:
"The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all."
It is clear that this reasoning goes quite beyond cases where the prior special legislation is a technically true special act as above defined. The above excerpts are taken from a case where there was no such special act. There is, however, a broader and not less accurate sense in which the term "special" as applied to legislation is often used. "The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application." Missouri Pacific R. R. Co. v. Mackey, 127 U. S. 205, 209, 8...
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