Porter v. Coble

• Decision Date: 19 November 1917
• Docket Number: 4909.
• Citation: 246 F. 244
• Parties: PORTER v. COBLE.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F. 244

PORTER v. COBLE.

No. 4909.

United States Court of Appeals, Eighth Circuit.

November 19, 1917

William Ritchie, Jr., of Bridgeport, Neb. (G. J. Hunt, of Bridgeport Neb., on the brief), for appellant.

T. S Allen, U.S. Atty., of Lincoln, Neb. (Howard Saxton, Asst U.S. Atty., of Omaha, Neb., on the brief), for appellee.

Before HOOK, SMITH, and STONE, Circuit Judges.

SMITH Circuit Judge.

The plaintiff, John C. Porter, alleged in a petition filed in the district court of Morrill county, Neb.:

That he had been duly appointed, commissioned, and qualified as post-master at Bridgeport, Neb., an office of the third class, and that his term would not expire until 1918. That the defendant, W. M. Coble, as a United States post office inspector, has a right to inspect the office at Bridgeport to inventory the property belonging to the government consisting of stamps, stamped envelopes, books, records, and funds received in due course of business therein.

'(3) That defendant has made demand upon this plaintiff for an inspection of the property so in his possession, and said defendant is willing to, has offered to, and will submit for defendant's inspection all property in his possession belonging to the Government and under the control of the Post Office Department; but that said defendant further says that after inspecting said property, inventorying the same, and taking possession thereof, he shall turn over and deliver the same to a third party, further claiming that this plaintiff has been removed as postmaster and that the bondsmen of this plaintiff have designated a party to whom said property shall be turned over and delivered. Plaintiff further alleges that he has not been removed according to law; that the President of the United States has never recommended his removal to the Senate of the United States, nor has the Senate of the United States ever approved of his removal.

'(4) Plaintiff further shows to the court that section 6 of chapter 175 of the Acts of the 44th Congress, 19 Stats. 78, 80 (section 7190, U.S. Compiled Statutes 1916), provides: 'Sec. 6. Postmasters of the first, second, and third classes shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years, unless sooner removed or suspended according to law. * * * '

'(5) Plaintiff further shows that the Postmaster General has assumed the right and authority to remove this plaintiff from his position of postmaster at Bridgeport of his own act and decision, and accordingly notified this plaintiff by letter through the regular course of mail. * * * But plaintiff alleges that said removal was not by the President, nor by and with the advice and consent of the Senate, and was unauthorized, unlawful, and illegal; that plaintiff's right to said office and to the emoluments thereof, until legally and lawfully removed or suspended, is a property right, and of which said defendant seeks to unlawfully deprive this plaintiff in the arbitrary manner above set forth; that if said property is turned over and delivered by said defendant to any third party this plaintiff will be deprived of the power to exercise and discharge the duties of postmaster, and will be thereby actually dispossessed of the office and of the emoluments thereof; all to the plaintiff's great and irreparable damage, and for which he has no adequate remedy at law; and that unless restrained by this court the said defendant will, in the arbitrary and unlawful manner above set forth, deprive this plaintiff of his rights, privileges, and emoluments, as hereinabove stated.

'Wherefore, plaintiff prays that said defendant be restrained and enjoined from delivering to any third party, during this plaintiff's term of office, any of the property now in this plaintiff's possession as postmaster of Bridgeport, and belonging to the United States, and from holding said property for a time longer than is reasonably necessary to complete his inspection and inventory of the same, and that upon the final hearing of this cause said injunction be made perpetual, and that plaintiff have all such other and further relief as in justice he may be entitled to.'

Upon the plaintiff's application a temporary injunction was granted as prayed. The defendant appeared and filed a petition for removal of the cause to the United States District Court for the District of Nebraska, and the state court ordered the cause to be so removed. In the federal court the United States filed a motion to dismiss the case and the plaintiff filed a motion to remand it to the state court. The court overruled the motion to remand and dismissed the case, but whether upon the motion of the United States or on its own motion does not clearly appear. Thereafter the plaintiff appealed to this court.

The plaintiff strenuously contended in his printed brief and oral argument and in a supplemental brief that the case was not removable.

Section 28 of the Judicial Code (section 1010 of the U.S. Compiled Statutes of 1916) provides:

'Any suit of a civil nature, at law or in equity, arising under the * * * laws of the United States, * * * of which the District Courts of the United States are given original jurisdiction by this title, 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 District Court of the United States for the proper district.'

Section 24 of the Judicial Code expressly provides that:

'The District Courts shall have original jurisdiction as follows: Sixth. Of all cases arising under the postal laws.'

The original jurisdiction of the District Court as applied to the postal laws is not dependent upon the amount in controversy.

This court practically overruled the objection from the bench at the time of the hearing that this case was not removable under these sections. In his supplemental brief the appellant says:

'The Case Was Properly Removed.

'The appellant will not discuss this point further except to point to * * * his brief. This may influence the court to change its ruling apparently made in the trial.'

Our ruling made at that time is adhered to. It may be added that the first assignment of errors is that the petition for removal was not verified by the proper party as required in sections 28 and 29 of the Judicial Code.

We do not find anything in either of these sections which governs who shall verify the petition for removal, unless it be in section 29, the requirement that the petition for removal shall be duly verified. The petition for removal is in the name of the defendant, W. M. Coble, but is signed 'T. S. Allen, United States Attorney, A. W. Lane, Assistant United States Attorney, Attorneys for Petitioner. ' The verification is by T. S. Allen, and--

'says that he is United States attorney for the district of Nebraska, and as such is attorney for the petitioner for removal of the above entitled cause to the District Court of the United States as prayed for in said petition; that said petitioner does not verify said petition because he is absent from and not a resident of Morrill county, Neb.; that the allegations of said petition are true to affiant's knowledge except such as are therein stated on information and belief and as to such matters he believes them to be true.'

This is then signed and sworn to. If it be assumed that the United States attorney was not, as such, attorney for the petitioner, he was an attorney of the United States District Court for Nebraska, and it is possible that the words 'United States Attorney' were descriptio personae; but no attack has ever been made, so far as the record shows, until the hearing in this court, upon his right to appear as United States attorney. In any event, there is nothing in the record to indicate that the application for removal was not properly verified.

As to the ruling...