People's United States Bank v. Goodwin

• Citation: 160 F. 727
• Decision Date: 23 April 1908
• Docket Number: 5,529.
• Court: U.S. District Court — Eastern District of Missouri
• Parties: PEOPLE'S UNITED STATES BANK v. GOODWIN et al.

160 F. 727

PEOPLE'S UNITED STATES BANK v. GOODWIN et al.

No. 5,529.

United States Circuit Court, E.D. Missouri, Eastern Division.

April 23, 1908

This is an action for libel instituted in a state court, removed on the petition of the defendants to this court, and plaintiff now moves to remand it upon the ground that the petition for removal is founded solely upon the fact that there is a federal question involved, and the original petition of plaintiff fails to show that fact. The petition charges the defendants with malicious libel in publishing and circulating certain statements concerning the plaintiff which are in the petition set out. There is nothing in the petition to show that the defendants are officers of the United States or that they were acting in an official capacity in the publication of the libel. The petition for removal sets up the fact that the defendant Goodwin was, at the time complained of, the Assistant Attorney General for the Post Office Department of the United States and the defendant Fulton Inspector in charge of the office of Post Office Inspectors of the United States; that the acts concerning plaintiff, charged in the petition, were dictated and composed by them in their official capacity, under and by virtue of the laws of the United States, and more especially the laws relating to the Post Office Department; that these facts, although well known to plaintiff, were designedly and fraudulently omitted from his petition for the purpose of preventing the removal of this cause from the state to this court.

Barclay & Fountelroy and Carter, Collins & Jones, for plaintiff.

Harry W. Blodgett, U.S. Atty., and T. P. Young, Asst. U.S. Atty for defendants.

TRIEBER District Judge (after stating the facts as above).

There can be no longer any doubt in view of what has been determined by the Supreme Court in Tennessee v. Union &amp Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654, 13 L.Ed. 511; Postal Telegraph Co. v. Alabama, 155 U.S 482, 15 Sup.Ct. 192, 39 L.Ed. 231; Chappell v Waterworth, 155 U.S. 102, 15 Sup.Ct. 34, 39 L.Ed. 85; Milling Co. v. McFadden, 180 U.S. 533, 21 Sup.Ct. 488, 45 L.Ed. 656; Minnesota v. Northern Securities Co., 194 U.S. 48, 24 Sup.Ct. 598, 48 L.Ed. 870, that ordinarily, in order to justify a removal of a cause from a state to a national court on the ground that the case is one arising under the Constitution or laws of the United States, that fact must appear from the plaintiff's petition in the case. It is equally well settled that no suit can, under the present judiciary act, be removed unless it be one that plaintiff could have originally instituted in the Circuit Court. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264. Learned counsel for the defendants, while admitting these principles of law, contend that if the suit is one against an officer of the United States for acts done in the discharge of his official duties, they do not apply, and it is sufficient if that fact is set up in the petition for removal. Other reasons are also advanced why the cause should not be remanded which will be stated later in this opinion. Counsel have been very diligent in their search for authorities to sustain this position, but a careful examination of the authorities cited shows that they are either distinguishable from the case at bar or have been reversed by the Supreme Court or overruled by the court which originally decided them.

Taking up the cases cited from the Supreme Court first, we find the following: Feibleman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289, 27 L.Ed. 984, and Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677, 35 L.Ed. 314, are clearly distinguishable. The Feibleman Case was originally instituted in the national court and was an action on the bond of the United States marshal for trespass. Bock v. Perkins was an action of trespass instituted in a state court against the marshal and his deputies for seizing some property of the plaintiff on an attachment issued against the property of another person, and was removed by the marshal to the national court. But both of these cases arose under the Act of March 3, 1875, c. 137, 18 Stat. 470, before it was amended by the Act of March 3, 1887, c. 373, 24 Stat. 552 (U.S. Comp. St. 1901, p. 508). The distinction between these acts is fully shown in Tennessee v. Union & Planters' Bank, supra, where the court, in referring to the amendatory act of 1887, said:

'Congress, in making this change, may well have had in mind the reasons which so eminent a judge as Mr. Justice Miller invoked in support of his dissent from the original decision that an offense under the Constitution, laws, or treaties of the United States was sufficient to justify a removal by the defendant under the act of 1875. ' looking,' said the court, 'to the reasons which may have influenced Congress, it may well be supposed that while that body intended to allow the removal of a suit where the very foundation and support thereof was a law of the United States, it did not intend to authorize a removal where the cause of action depended solely on the law of the state, and when the act of Congress only came in question incidentally as part of the defendant's plea in avoidance. In support of this view, it may be added, that he in such case is not without remedy in a federal court; for if he has pleaded and relied on such defense in the state court, and that court has decided against him in regard to it, he can remove the case into this court by writ of error, and have the question he has thus raised decided here.' The acts of 1887 and 1888, indeed, contain special provisions as to particular kinds of cases arising under the Constitution or laws of the United States. * * * But those provisions have no application to the cases now before us, and contain, to say the least, nothing tending to show that it was intended that such a case as any of these might be removed into the circuit court of the United States for trial.' 152 U.S. 462, 14 Sup.Ct. 657, 13 L.Ed. 511.

For the same distinction between the acts of 1875 and 1887 Texas & Pacific Ry. Co. v. Cody, 166 U.S. 606, 17 Sup.Ct. 703, 41 L.Ed. 1132, may also be consulted. In Bankers' Casualty Co. v. M., St. P. & Ste. M. Ry. Co., 192 U.S. 371, 24 Sup.Ct. 325, 48 L.Ed. 484, it was said that 'cases against United States officers, as such, or on bonds given under acts of Congress, or involving interference with federal process, or the due faith and credit to be accorded judgments, are not in point. ' But all that was meant by the court, as shown by the opinion, was that if the petition, on its face, showed that the action is against the defendant as such officer, or on a bond executed under and in pursuance of an act of Congress, there is jurisdiction of the cause in a national court. In the case at bar there is nothing in plaintiff's petition showing that defendants acted as officers of the government, and the only manner in which it could have invoked the original jurisdiction of the court in this cause would have been to anticipate defendant's defense, that they claimed to have acted in the publication of the alleged libel as officers of the government. That this cannot be done is well settled by numerous decisions of the courts. Tennessee v. Union & Planters' Bank, supra; Arkansas v. Coal Company, 183 U.S. 185, 22 Sup.Ct. 47, 46 L.Ed. 144; Filhiol v. Maurice, 185 U.S. 108, 22 Sup.Ct. 560, 46 L.Ed. 827;

Filhiol v. Torney, 194 U.S. 356, 24 Sup.Ct. 698, 48 L.Ed. 1014, affirming Id. (C.C.) 119 F. 974; Joy v. St. Louis, 201 U.S. 332, 26 Sup.Ct. 478, 50 L.Ed. 776, affirming Id. (C.C.) 122 F. 524; Fergus Falls v. Fergus Falls Water Co., 72 F. 873, 19 C.C.A. 212.

In the last cited case Judge Caldwell, who , said:

'At law the plaintiff is never expected to state matters which should come more properly from the other side. It is sufficient for each party to make out his own case. It is sufficient for the plaintiff to state his own cause of action, and he should not anticipate his adversary's defense, for the reason that the latter may never make the defense sought to guarded against. * * * And it is equally well settled that a suggestion in a complaint in any action at law that a defendant may or will set up a defense based upon a state statute or repugnant to the Constitution, does not make the suit one arising under the Constitution, and allegations of the complaint beyond those which state a cause of action are mere surplusage. When the statement of the plaintiff's cause of action in legal and logical form, such as is required by the rules of good pleading, does not disclose that the suit is one arising under the Constitution or laws of the United States, then the suit is not one arising under that Constitution or those laws, and the Circuit Court has no jurisdiction.'

In Osborn v. Bank, 9 Wheat. 738, 824, 6 L.Ed. 204, the court said:

'The right of the plaintiff to sue cannot depend on the defense which the defendant may choose to set up. His right to sue is anterior to that defense, and must depend upon the state of things when the action is brought.'

In Filhiol v. Torney, supra, it was said:

'Any action by the government is matter of defense, and may never be presented by the defendant.'

Such allegations are surplusage and cannot give jurisdiction. There is no act of Congress authorizing any officer of the government to commit any acts which constitute a libel although it may be a good defense to plead, in answer to the charge, that they were officers, and that the publication was made by them in the discharge of their official duties and in reports to their superior officers, and that for this reason their acts were privileged. But this is clearly a matter of defense, and could not have been...