Mahopoulus v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 23 December 1908
• Docket Number: 3,419.
• Citation: 167 F. 165
• Parties: MAHOPOULUS v. CHICAGO, R.I. & P. RY. CO. et al.
• Court: U.S. District Court — Western District of Missouri

167 F. 165

MAHOPOULUS v. CHICAGO, R.I. & P. RY. CO. et al.

No. 3,419.

United States Circuit Court, W.D. Missouri, Western Division.

December 23, 1908

On Rehearing, March 8, 1909.

Rosenberger & Reed, for plaintiff.

Sebree Conrad & Wendorff, for defendant Chicago, R.I. & P. Ry. Co.

Warner Dean, McLeod & Timmonds, for defendant Chicago, B. & Q.R. Co.

POLLOCK District Judge.

The plaintiff in this action, an alien, citizen, subject inhabitant, and resident of the kingdom of Greece, on September 17, 1908, commenced this action in the circuit court of Jackson county, this state, against the Chicago, Rock Island & Pacific Railway Company, a corporate citizen of the states of Illinois and Iowa, the Chicago, Burlington & Quincy Railroad Company, a corporate citizen of the state of Illinois, and Harvey Smith and James J. Harrington, natural citizens of this state, and, respectively, train conductor and engineer in the employ of defendant the Chicago, Rock Island & Pacific Railway Company, to recover damages for the death of her husband, Nick Mahopoulus, alleged to have been caused by the wrongful, joint, negligent acts of defendants, under the terms and provisions of the laws of this state wherein the injury was done and the death occurred. Within due time defendants, the Chicago, Rock Island & Pacific Railway Company and the Chicago, Burlington & Quincy Railroad Company, filed their joint petition and bond for removal of the cause into this court on the ground of a separable controversy existing between plaintiff and the removing defendants. An order of removal was made and entered by the state court, and the transcript duly lodged in this court. Thereafter plaintiff, without having taken any step in this court which may be deemed or construed as a waiver of her consent to the exercise of jurisdiction of this court over her person or cause of action, filed herein her motion to remand the cause to the state court for want of jurisdiction in this court. This motion has been submitted in oral argument and on briefs of counsel for decision.

At the oral argument it was admitted and conceded by counsel for plaintiff in open court, under the statutory law of this state creating and governing this cause of action for damages for death by wrongful act, a separable controversy exists between the plaintiff and the removing defendants, as alleged in their petition for removal. But it was then contended, and is now insisted, admitting the existence of such separable controversy, yet this separable controversy is in its very nature such that this court did not acquire and cannot maintain jurisdiction by the removal taken without the consent of, or some act amounting to a waiver of consent on the part of, the plaintiff.

The question presented here is as to the soundness of this contention. Section 1 of article 3 of the national Constitution provides:

'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

Section 2 of article 3 provides the extent of judicial power possessed by the national courts, as follows:

'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, to all cases affecting ambassadors, other public ministers, and consuls, to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.'

From these constitutional provisions it is seen the Supreme Court alone derives jurisdiction and power direct from the Constitution; that this court possesses only such jurisdiction and power as may be expressly conferred upon it by Congress within the limits fixed by the Constitution. United States v. Hudson, 7 Cranch, 32, 3 L.Ed. 259; McIntire v. Wood, 7 Cranch, 504, 3 L.Ed. 420; Turner v. Bank of North America, 4 Dall. 8, 1 L.Ed. 718; Sheldon et al. v. Sill, 8 How. 441, 12 L.Ed. 1147; Stevenson v. Fain, 195 U.S. 165, 25 Sup.Ct. 6, 49 L.Ed. 142; Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264. That is to say, the jurisdiction and power of the Circuit Courts of the United States created by Congress under authority of the Constitution has a twofold limitation: First, it is limited by, and must be confined to, the bounds fixed by the Constitution on the power of Congress to legislate at all. Second, it must be limited to the exercise of such power and jurisdiction alone as the Congress, in its wisdom, sees fit to confer. If either limitation be exceeded, the acts of the court are void and of no effect. Therefore, in any given case, resort must be had by the court to the acts of Congress conferring jurisdiction and power on the court to determine whether it possesses power to proceed in the case. And as this present case reached this court, not through the exercise of its original jurisdiction, but through the power conferred by Congress on parties litigant to withdraw their controversy from a lawful exercise of judicial power conferred by a sovereign state on its judicial tribunal and to bring such controversy within the absolute control of this court, it is manifest the controversy must be such in its very nature as this court can receive and determine between the parties under its grant of original jurisdiction and power, and also the controversy must be such by its nature as the Congress under constitutional authority has expressly authorized parties litigant to withdraw from the jurisdiction of the state court and place within the jurisdiction, power, and control of this court, to the ultimate exclusion of the state tribunal.

Section 1 of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508), confers original jurisdiction of controversies therein named on this court, as follows:

'That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds exclusive of interest and costs, the sum or value aforesaid; * * * But no person shall be arrested in one district for trial in another in any civil action before a Circuit or District Court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'

As has been seen, the plaintiff in this action being an alien citizen, subject of the kingdom of Greece, an inhabitant and resident of that foreign state at the time this action was brought, and defendants being citizens of states of this country, there can be no doubt but that the separable controversy here presented, had it been originally brought by plaintiff in the proper circuit court of Illinois, that court would have had jurisdiction under the express terms of the act. Or, had it been brought in any other Circuit Court of the United States, either by express consent of defendants, or when brought by plaintiff in any such court had defendants in any manner by appearing to the merits of the controversy impliedly consented to such jurisdiction, such other national court would undoubtedly have possessed full jurisdiction, power, and control of the controversy and the parties litigant thereof, and this notwithstanding the language employed in the opinion in Ex parte Wisner, supra; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904; Western Loan Co. v. Butte & Boston Min. Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1136. It is thus made entirely clear the separable controversy here presented between plaintiff and the removing defendants by reason of the alienage of the plaintiff and the citizenship of the defendants is of that class falling within the general original jurisdiction of this court.

However the question remains, is it of that class over which this court may by the act of removal receive and retain jurisdiction to the exclusion of the original jurisdiction obtained by the state court by the act of the plaintiff in bringing the action in that court without the consent or some act done by plaintiff in this court amounting to a waiver of such consent? The ground of jurisdiction in this case arises from diverse citizenship of the parties litigant to the separable controversy. The general original jurisdiction and power of the Circuit Courts of the United States over the subject-matter of the separable controversy presented being established, it only remains to consider whether the Congress in the exercise of its constitutional power has provided this case may be removed into this court. If any such provision be found, it is binding on the parties...