Malone v. Richmond & D.R. Co.

• Decision Date: 01 August 1888
• Citation: 35 F. 625
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: MALONE v. RICHMOND & D.R. CO.

35 F. 625

MALONE v. RICHMOND & D.R. CO.

United States Circuit Court, E.D. North Carolina.

August 1, 1888

D Schenck, Charles Price, and John N. Staples, for petitioner.

HARLAN Justice.

The plaintiff in this suit, which was brought in the superior court of North Carolina for the county of Buncombe, is a citizen of this state. The defendant is a corporation created under the laws of Virginia. The object of the suit is to recover statutory penalties, alleged to have accrued, under the statute, against the railroad company for non-shipment of certain personal property. The value of the matter in dispute is less than $2,000, exclusive of interest and costs. The time having passed for a removal of the suit simply on the ground of diverse citizenship, the defendant, without notice to the plaintiff, presents here a petition for its removal into this court, upon the ground that, from prejudice or local influence, the company could not obtain justice in the court in which the suit was brought, or in any other court of North Carolina, to which, under her laws, it may be removed on account of such prejudice or local influence. With the petition is filed the affidavit of the third vice-president of the railroad company, in which he repeats the general statement as to its inability, on the grounds just stated, to obtain justice in the state courts. That affidavit constitutes all the evidence offered in support of the petition for removal.

This application involves the construction of certain clauses of the act of March 3, 1887, amending the act of March 3, 1875 and further regulating the jurisdiction of the circuit courts of the United States. 24 St. 552; 18 St. 470. The first section, among other things, specifies certain classes of suits of a civil nature of which those courts may take original cognizance, concurrent with the courts of the states. Among such suits are those involving controversies between citizens of different states. In respect to suits specified in that section, it is provided that the matter in dispute, exclusive of interest and costs, shall exceed the sum or value of $2,000. The second section, which was evidently intended, though it is not so expressly declared to take the place of the second section of the act of 1875, ^[2] provides, among other things, for the removal into the circuit court of the United States for the proper district, of certain classes of suits then pending or thereafter brought in a state court: (1) Suits of 'a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section;' (2) 'any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section. ' In respect to the latter class of civil suits, pending or thereafter brought in any state court, it is provided that they 'may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. ' Immediately following is this clause, in the same section:

'And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause.'

It is clear from the above clauses, construing them all together, that the right of removal, at any time before trial, on the ground of prejudice or local influence, is restricted, by the act of 1887, to suits in which there is a controversy between citizens of different states; also that such right, in suits of that character, involving no federal question, now belongs only to the defendant who is a citizen, or to the defendants who are citizens, of a state other than that in which the suit is brought. And I think it is equally clear that the right of removal on the ground of prejudice or local influence does not exist in any case unless the sum or value of the matter in dispute exceeds $2,000, exclusive of interest and costs. The clauses of the second section of the act of 1887, defining the different kinds of suits that may be removed, preserve the same element of the value of the matter in dispute as is found in the first section, relating to the original jurisdiction of circuit courts. This is done by the provision giving the right of removal in suits 'of which the circuit courts of the United States are given original jurisdiction by the preceding (first) section. ' As by the first section the circuit court may take original cognizance, concurrent with the state courts, of all suits therein described, where the matter in dispute, exclusive of interest and costs, exceeds $2,000, the clauses in the second section, giving the right of removal in suits 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' necessarily restricts the right of removal to suits in which the value of the matter in dispute, exclusive of interest and costs, exceeds the above amount.

It is, however, argued that, as the clause which specifies prejudice or local influence as an additional ground of removal in suits between citizens of different states, makes no mention of the value of the matter in dispute, the presumption is that congress intended to give the right of removal in cases of that kind without reference to such value. In this view I am unable to concur. The first clauses of section 2 describe, as to their subject-matter and the character of the parties, certain suits which may be removed from the state courts to the circuit courts of the United States, and, in the manner just indicated, attaches to the exercise of the right of removal the condition that the value of the matter in dispute shall exceed a named amount. The subsequent clause, relating to prejudice and local influence, does not describe a new class of suits, removable from the state courts, but only specifies a distinct ground for removing one class of the suits previously defined, namely, that class in which there is a controversy between citizens of different states. And that ground the defendant is at liberty to set up 'at any time before the trial;' whereas, by the third section of the act, the right to remove, upon any other ground, will be lost, if not exercised at the time or before 'the defendant is required by the laws of the state or the rule of the state court' in which the suit is brought 'to answer or plead to the declaration or complaint of the plaintiff. ' The clause prescribing prejudice or local influence as ground for the removal of a suit 'in which there is a controversy between a citizen of the state in which the is brought and a citizen of another state,' cannot well be separated, in the process of interpretation, from the preceding clause in the same section, which, by referring to the first section, requires as a condition of the removal of a suit because of diverse citizenship-- the only kind of suit in which the existence of prejudice or local influence, as affecting the right of removal, is of any consequence-- that the matter in dispute shall exceed in value $2,000, exclusive of interest and costs. If in such suits having the required amount in dispute it is made to appear to the circuit court that prejudice or local influence will prevent the defendant, who is a citizen of another state, from obtaining justice in the state courts, then the right of removal may be exercised 'at any time before the trial. ' There is nothing in the previous legislation of congress to justify a different interpretation of the act of 1887 from the one the court now gives. When the right of removal on the ground of prejudice or local influence was conferred by the act of 1867, (14 St. 558,) congress attached the condition that the matter in dispute should exceed the sum of $500,-- the amount then required for the original jurisdiction of the circuit courts of the United States in suits between citizens of different states. That condition was continued in the Revised Statutes of the United States, (section 639;) and there is nothing in recent legislation to warrant the conclusion that congress intended to authorize the removal from a state court of a civil suit or controversy between citizens of different states, upon the ground of prejudice or local influence, when the same suit could not, because of the small value in dispute, have been brought in a circuit court of the United States.

The present application must be denied upon the further ground that it has not been 'made to appear' to t this court that the defendant will be unable to obtai justice in the state court. The act of 1887 makes a radical change in the previous law regulating the removal of...