Petition of Henneman, 3887 Original.

• Decision Date: 09 August 1943
• Docket Number: No. 3887 Original.,3887 Original.
• Citation: 137 F.2d 627
• Parties: Petition of HENNEMAN et al.
• Court: U.S. Court of Appeals — First Circuit

137 F.2d 627 (1943)

Petition of HENNEMAN et al.

No. 3887 Original.

Circuit Court of Appeals, First Circuit.

August 9, 1943.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

Robert G. Dodge, of Boston, Mass., and E. T. Fiddler, of New York City, for petitioners.

William Cattron Rigby, of Washington, D. C. (Manuel Rodriguez Ramos, of San Juan, Puerto Rico, of counsel) for People of Puerto Rico, Intervenors, appearing specially for the purposes of the motion to dismiss this proceeding in this Court for want of jurisdiction, to question the jurisdiction, and not otherwise.

WOODBURY, Circuit Judge.

This is a petition for a writ of mandamus¹ directing the judge of the District Court of the United States for Puerto Rico to vacate his order granting a motion to remand an action sought to be removed to his court from the Supreme Court of Puerto Rico and to decide certain issues raised by the petition for removal.

The action sought to be removed and ordered remanded is an information in the nature of Quo Warranto which was filed in the Supreme Court of Puerto Rico by The People of Puerto Rico on October 8, 1942. In this information it is alleged that the petitioners herein, calling themselves Eastern Sugar Associates, are trustees under a deed of trust; that all of them are residents of continental United States; that Eastern Sugar Associates is an entity, either a corporation or a trust, and that it both owns, and controls through leaseholds, over 500 acres of land in Puerto Rico upon which it devotes itself to agriculture. The People of Puerto Rico aver that the petitioners by so doing have violated 48 U.S. C.A. § 752,² which restricts the right of corporations to hold agricultural lands in Puerto Rico, and also § 57 of the Land Law of Puerto Rico,³ which purports to impose similar restrictions upon trusts. The trustees individually, the trust as an entity, which is set out as having its situs and principal place of business in Puerto Rico, and some of the lessors, who are described as domiciled in Puerto Rico, are all named as parties defendant. The other lessors who are not named are said to be unknown to the plaintiff but that they "shall be brought in as parties defendants as soon as discovery thereof is had in the course of this proceeding."

In this information a judgment is asked declaring that the defendant Eastern Sugar Associates is either a corporation within the meaning of § 752 of the United States Code Annotated, or else a trust within the meaning of § 57 of the territorial Land Law; declaring that the defendant Eastern Sugar Associates devotes itself to agriculture in Puerto Rico on lands which it owns and controls in excess of 500 acres; ordering the same defendant to cease and desist from doing further business in Puerto Rico; declaring that its contracts of lease are null, imposing a fine, and for general relief.

In due season after this information was filed in the Supreme Court of Puerto Rico the petitioners moved in that court for removal to the District Court of the United States for Puerto Rico on the ground of diversity of citizenship and also on the ground that the suit "purports to arise under the laws of the United States and seeks to present a substantial dispute and controversy which arises out of and depends upon the proper construction and application of the acts of the Congress of the United States and particularly upon section 752 of Title 48 of the United States Code."

In support of their motion on the ground of diversity of citizenship the petitioners alleged that no joint cause of action was stated or joint relief asked for; that the lessor-defendants are not indispensable parties to the cause of action stated in the information; and that the plaintiff fraudulently joined them as parties defendant for the very purpose of preventing removal to the District Court of the United States for Puerto Rico. The Supreme Court of Puerto Rico, after hearing, denied the petition for removal holding in an opinion, which has not been made available to us according to our rule No. 30, but which is referred to by the parties in their briefs and by the district court in its order of removal, that under Puerto Rican law the lessors-defendants were necessary parties and that, therefore, there existed no separable controversy between The People of Puerto Rico as plaintiffs and the non-resident defendants — the petitioners herein — alone. In consequence the Supreme Court of Puerto Rico ruled that the action was not removable.

Thereupon the petitioners filed certified copies of the record in the District Court of the United States for Puerto Rico with the view of removing the information to that court. The People of Puerto Rico then moved in the district court that the case be remanded "for the reason that no federal question is involved in this suit and for the further reason(s) that this Court lacks jurisdiction both over the subject matter and over the parties herein." The district court granted this motion and ordered the action remanded to the Supreme Court of Puerto Rico "on the sole ground that the law of Puerto Rico, as declared by its highest court, makes the Lessors in this proceeding indispensable parties.⁴"

Thereafter the petitioners moved in this court for leave to file a petition for a writ of mandamus and we granted them such leave ordering the judge of the District Court of the United States for Puerto Rico to show cause why the writ should not issue. The judge duly submitted his return.

The People of Puerto Rico, appearing specially, contend, as did the judge of the district court in his return, that we have no jurisdiction to issue the writ and they assign as the reason therefor that section 28 of the Judicial Code, 28 U.S.C.A. § 71, provides that: "Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal * * * from the decision of the district court so remanding such cause shall be allowed."

The People of Puerto Rico assert and we concede that although the statute only specifically mentions appeals its meaning is broad enough to prevent the use of a writ of mandamus as a substitute for an appeal (In re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed. 738; Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289) but the petitioners contend that they do not seek the writ for the purpose of having us review the district court's order remanding the case but that they seek it only for the purpose of compelling that court to decide issues presented by the motion to remand which they say it has not decided.

It is well settled that this court has the power to issue writs of mandamus in the exercise of its appellate jurisdiction and that the writ will lie to direct a subordinate federal court to render a decision in a case pending before it. McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 54 L.Ed. 762, and cases cited. And the writ may be issued to compel a district court to decide whether a case has been improperly removed to it. See Travelers' Protective Ass'n of America v. Smith, 4 Cir., 71 F.2d 511, 512, in which Judge Parker said: "The statute makes the decision of the District Court that a case has been improperly removed conclusive and final. It does not preclude action requiring the court to exercise jurisdiction when it has made no such decision." See also Bankers Securities Corp. v. Insurance Equities Corp., 3 Cir., 85 F.2d 856, 859, 860, 108 A.L.R. 960.

We must determine, therefore, whether the district court decided the issues raised before it in the removal proceedings or whether, as the petitioners say, it did not and thereby denied them their day in court.

Section 42 of the Organic Act, 48 U.S. C.A. § 864, makes the statutory provisions governing the removal of causes from state courts to federal district courts and the remand thereof back again applicable "in such matters and proceedings as between the district court of the United States and the courts of Puerto Rico". (see Puerto Rico v. Russell & Co., 288 U.S. 476, 478, 53 S.Ct. 447, 77 L.Ed. 903) and section 28 of the Judicial Code, 28 U.S.C.A. § 71, provides that any suit of a civil nature of which the district courts of the United States are given jurisdiction, may, if begun in any state court, be removed therefrom by the defendant or defendants into the district court of the United States for the proper district....