Nelson v. Southern Ry. Co.

• Decision Date: 21 June 1909
• Citation: 172 F. 478
• Parties: NELSON v. SOUTHERN RY. CO. GASTON v. SAME.
• Court: U.S. District Court — Northern District of Georgia

172 F. 478

NELSON v. SOUTHERN RY. CO.

GASTON v. SAME.

United States Circuit Court, N.D. Georgia.

June 21, 1909

Arnold & Arnold, for plaintiff.

J. J Strickland and McDaniel, Alston & Black, for defendant.

NEWMAN District Judge.

In this case, counsel, by permission of the court, have reargued the question considered and determined in the case of Albert Miller v. Illinois Central Railroad Company, 168 F. 982; the question being whether a suit, brought in a state court under the recent employer's liability act of Congress (Act April 22, 1908, c. 149, 35 Stat. 65), which is not removable because of the citizenship or residence of the parties, is removable under the acts of Congress of 1887-88 (Act March 3, 1887, c. 373, Sec. 2, 24 Stat. 553 as amended by Act August 13, 1888, c. 866, Sec. 2, 25 Stat. 434 (U.S Comp. St. 1901, p. 509)) providing:

'Any suit 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, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district.'

The question is, where a suit is brought by an administrator under the employer's liability act, relying on the act in the declaration, and the declaration containing no statement, or any suggestion even, that the result of the suit will depend upon the construction of the act of Congress, whether or not such cause is removable upon the ground that it arose under a law of the United States.

In the Miller Case, decided a few weeks ago in this court, the same question was presented, and it was held that the case was not removable. In view of the importance of the question and the earnestness of counsel in presenting their views in the present case, I have given the question a thorough re-examination, and will again state my views with some additional authorities.

As I gather the law from the decisions of the courts, and especially from the decisions of the Supreme Court, the fact that a suit is brought on a law of Congress, and that its application may be necessary in the progress of the case, does not justify removal under section 2 of the act of 1887-88, unless the construction of the act be involved, and unless the final determination of the case depends upon such construction. In Rose's code of Federal Procedure, vol. 1, Sec. 133, what the author considers the correct rule is briefly stated in these words:

'A suit is not removable simply because an act of Congress is to be construed or applied. There must be a dispute as to the construction of the act.'

I have referred to some of the authorities on this question which show fully and clearly to my mind that the courts have determined against the right of removal in a case like this. In Fitzgerald v. Missouri Pacific Ry. Co. (C.C.) 45 F. 812, in the opinion on page 819, Circuit Judge Caldwell presented the question as follows:

'But this is not enough. The answer or petition for removal would have to go further, and show that the construction of the act of Congress relating to the mode of procuring the right of way was in dispute between the parties, and this must be done by stating facts that prove it. A simple averment that the fact is so is stating a conclusion, and is not enough. Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656. If there is no dispute between the parties as to the meaning of an act of Congress, there is no federal controversy between them, and no cause for removal. The Supreme Court has settled the rule on this subject. The court, speaking through Chief Justice Waite, says: 'A cause cannot be removed from a state court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part, at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved.' Water Company v. Keyes, supra. The facts in that case and Mr. Justice Bradley's dissent show the question was fully considered, and that the opinion expressed the deliberate and well-considered judgment of the court on this point. The Circuit Court cases are to the same effect. Trafton v. Nougues, 4 Sawy. 178, Fed. Cas. No. 14,134; Austin v. Gagan, 39 F. 626, 5 L.R.A. 476; State v. Railroad Co., 33 F. 391; Rothschild v. Matthews (C.C.) 22 F. 6.'

In the case cited by Judge Caldwell of Trafton v. Nougues, Fed. Cas. No. 14, 134 (vol. 24), Circuit Judge Sawyer says:

'Only suits involving rights depending upon a disputed construction of the Constitution and laws of the United States can be transferred from the state to the national courts, under the clause 'arising under the Constitution and laws of the United States,' of section 2 of the 'act to determine the jurisdiction of the United States courts,' passed March 3, 1875.'

In Theurkauf v. Ireland (C.C.) 27 F. 769, which is a case concerning the pre-emption of public lands under the statute of the United States, Judge Sawyer says in the opinion:

'But it does not appear that there is any disputed construction of any statute of the United States involved. It does not appear but that both parties agree upon the construction of the pre-emption laws. For all that appears from the facts alleged, the whole controversy may turn on the proof of the facts. There is nothing to show that any disputed question of construction will arise, and this must affirmatively be shown, in order to make it affirmatively appear that the court has jurisdiction. It might as well be claimed that it is a proper cause for jurisdiction by alleging that the plaintiff claims title by virtue of a patent issued by the United States, without stating that there is any question arising upon a disputed construction of the patent, or any dispute as to its validity. The authorities are numerous to the effect that the record in this case does not affirmatively disclose a case over which the court has jurisdiction, and that it is insufficient to sustain its removal.'

So, in the case now before the court. For all that appears here, there may be no difference whatever between the parties as to the proper construction of this act of Congress. So far as can be seen from an examination of the declaration, the case is one where its determination will depend upon the application of the facts to the law. There is not a suggestion in the declaration that there will be any difference between the parties as to the proper interpretation of the act in any of its phases. The whole question seems to be: Has the plaintiff stated, and can he prove, a cause of action coming up to the requirements of this act of Congress, and entitling him to recover under it?

In State of Iowa v. Chicago, M. & St. P. Ry. Co. (C.C.) 33 F. 391, Judge Shiras states the correct rule on this question as follows:

'The motion to remand presents the question whether it is a removable case, and as the state is a party, and jurisdiction in the federal court cannot be had by reason of diverse citizenship, it follows that to sustain the jurisdiction it must appear that the case is of a civil nature, wherein the matter in dispute exceeds $2,000 in value, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. In determining when the Supreme Court has jurisdiction to review the decisions of the highest tribunal of a state, on the ground that it involved the construction of the Constitution, laws, or treaties of the United States, the Supreme Court has uniformly held that it must clearly appear from the record that the question arising under the federal Constitution, laws, or treaties was in fact passed upon or necessarily involved in the conclusion reached. In Crowell v. Randell, 10 Pet. 368, 9 L.Ed. 458, it was said that it was 'not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the state court to the case.' In Bridge Proprietor v. Hoboken Company, 1 Wall. 116, 17 L.Ed. 571, the rule is stated to be that: 'The court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied.' In Brown v. Colorado, 106 U.S. 95, 1 Sup.Ct. 175, 27 L.Ed. 132, it is said: 'Certainly, if the judgments of the courts of the states are to be reviewed here for decisions upon such questions, it should be only when it appears unmistakable that the court either knew or ought to have known that such a question was involved in the decision to be made.' It certainly will not be claimed as to the jurisdiction of the Circuit Court.

'When it is sought to deprive a state court of the right to hear and determine a cause properly and rightfully brought therein, by removing the same to the federal court, on the ground that the controversy involves in its determination a question arising under the Constitution, laws, or treaties of the United States, it must be made to appear, clearly and unmistakably from the record, that the cause or controversy necessarily, in its determination, involves the consideration and determination of such federal question. It is not sufficient for it to appear that such federal question may possibly arise. Jurisdiction to 'wrest' the case

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