Re Frank Winn

• Decision Date: 03 May 1909
• Docket Number: No. 12,O,12
• Citation: 56 L.Ed. 873,29 S.Ct. 515,213 U.S. 458
• Parties: RE FRANK D. WINN. riginal
• Court: U.S. Supreme Court

213 U.S. 458

29 S.Ct. 515

56 L.Ed. 873

RE FRANK D. WINN.

No. 12, Original.

Argued April 5, 1909.

Decided May 3, 1909.

Messrs. Guy A. Miller, W. H. Bremner, and O. S. Franklin for petitioner.

[Argument of Counsel from page 459 intentionally omitted] Messrs. Nathaniel T. Guernsey, Alonzo C. Parker, and William E. Miller for respondent.

[Argument of Counsel from pages 460-462 intentionally omitted] Mr. Justice Moody delivered the opinion of the court:

This is an application for a writ of mandamus to the district judge of the United States, acting as circuit judge for the southern district of Iowa, central division. The prayer of the petition was for a rule to show cause why a writ of mandamus should not issue, commanding the judge to remand the case to the state court in which it was originally brought. The rule was issued and cause was shown by a return. From the petition and the return the following state of facts appears: The petitioner as assignee of the right of action of a shipper, brought, in a state court of Iowa, an action at law against the American Express Company for the negligent transportation of a boar, whereby the animal was killed, to the damage, it was alleged, to the owner of $8,000. The transportation was under a written contract between the owner and the defendant, which was annexed to the declaration as an exhibit. The shipment was from a point in Iowa to a point in Nebraska. The citizenship of the plaintiff or his assignor was not alleged, but the defendant was alleged to be a citizen of New York. The defendant seasonably filed in the state court a petition for removal to the circuit court of the United States, with accompanying bond in proper form. The petition having been denied in the state court, the defendant duly filed a copy of the record in the circuit court of the United States, and it was there docketed, whereupon plaintiff moved to remand the case, and the motion was denied by the circuit judge. The plaintiff thereupon, without further action in the circuit court, began this proceeding.

The petition for removal alleged that the plaintiff was a citizen of Missouri and the defendant 'a joint stock association organized under the laws of the state of New York,' but contained no allegation of the citizenship of the members of the association. It was agreed at the argument that the defendant was not a corporation, but a joint stock association. Therefore the diversity of citizenship required to warrant a removal on that ground does not appear. The petition for removal, which is printed in the margin,¹ was not based upon diversity of citizenship, but upon the ground that the suit was one arising under the laws of the United States.

It is well settled that no cause can be removed from the state court to the circuit court of the United States unless it could originally have been brought in the latter court. Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 640, 47 L. ed. 626, 632, 23 Sup. Ct. Rep. 434; Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150.

The only ground of jurisdiction which is or can be suggested is that the suit was one arising under the Constitution and the laws of the United States. 25 Stat. at L. 433, 434, chap. 866, U. S. Comp. Stat. 1901, pp. 508, 509. It is the settled interpretation of these words, as used in this statute conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough, as the law now exists, that it appears that the defendant may find in the Constitution or laws of the United States some ground of defense. Louisville & N. R. Co. v. Mottley, 211 U. S. 149, 53 L. ed. ——, 29 Sup. Ct. Rep. 42, and cases cited. If the defendant has any such defense to the plaintiff's claim, it may be set up in the state courts, and, if properly set up, and denied by the highest court of the state, may ultimately be brought to this court for decision.

Tested by these principles, the record, including the petition for removal, shows affirmatively that the case was not one arising under the laws of the United States. In substance, the allegations of the petition for removal are, that the defendant was subject to the Federal laws to regulate commerce, and that, under those laws, the defendant had a defense in whole or in part to the cause of action stated in the declaration. But the cause of action itself is not based upon the interstate commerce law or upon any other law of the United States. The case could not have been brought originally in the circuit court of the United States, and was therefore not removable thereto. In holding otherwise we think the learned judge of the circuit court erred.

It is, however, argued that mandamus is not the remedy for the correction of such an error as we have pointed out, and that the aggrieved party should be left to his writ of error,—a remedy which he undoubtedly has.

Authority to issue writs of mandamus to any courts appointed under the authority of the United States was given to this court by a provision in the original judiciary act, which now appears in § 688 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 565). A writ of mandamus issued under this provision is for the purpose of revis- ing and correcting proceedings in a case already instituted in the courts, and is deemed a part of the appellate jurisdiction of this court, which is subject to such regulations as the Congress shall make. Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Ex parte Yerger, 8 Wall. 85, 97, 19 L. ed. 332, 336; Re Green, 141 U. S. 325, 326, 35 L. ed. 765, 12 Sup. Ct. Rep. 11.

In Ex parte Crane, 5 Pet. 190, 8 L. ed. 92, the court, of its own motion, considered and sustained its authority to issue mandamus to inferior courts, and in that case directed by mandamus a judge of an inferior court to sign a bill of exceptions duly presented. Since that time writs of mandamus to inferior courts have been issued in all proper cases.

In Ex parte Bradley, 7 Wall. 364, 19 L. ed. 214, it was held that a mandamus from this court would lie to an inferior court of the United States, directing it to restore an attorney to the rolls, who had been disbarred, where the court was without jurisdiction in that regard. And it was said, page 377: 'The ground of our decision . . . is, that the court below had no jurisdiction to disbar the relator. . . . No amount of judicial discretion of a court can supply a defect or want of jurisdiction in the case. The subject-matter is not before it; the proceeding is coram non judice and void.'

A specific application of the general principle announced in Ex parte Bradley has been made to cases where circuit courts of the United States have, without authority, assumed jurisdiction of a case originally brought in a state court, and it has frequently been held that mandamus from this court would lie to compel a circuit court to remand a case to the state court where it is apparent from the record that the circuit court has no jurisdiction whatever of the case. Virginia v. Rives, 100 U. S. 313, 25 L. ed. 667; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536; Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 633, 26 Sup. Ct. Rep. 387, 5 A. & E. Ann. Cas. 692; Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150. And see Re Dunn, 212 U. S. 374, 53 L. ed. ——, 29 Sup. Ct. Rep. 299. In such a situation the remedy by mandamus is available although the aggrieved party may also be entitled to a writ of error or an appeal. Mandamus, it is true, never lies where the party praying for it has another adequate remedy. The writ of mandamus was introduced to supplement the existing jurisdiction of the courts and to afford relief in extraordinary cases where the law presents no adequate remedy. High, Extr. Legal Rem. 3d ed. § 15. But where, without any right, a court of the United States has wrested from a state court the control of a suit pending in it, an appeal or writ of error, at the end of long proceedings, which must go for naught, is not an adequate remedy.

In Virginia v. Rives, supra, the state, after the cause had been removed to the circuit court, filed its petition in this court for mandamus, without having made a motion to remand in the circuit court; but, in the opinion, nothing turned on the absence of a motion to remand, and the remedy by mandamus was held to exist 'when the case is outside of the exercise of . . . [judicial] discretion, and outside the jurisdiction of the court . . . to which . . . the writ is addressed. One of its peculiar and more common uses is to restrain inferior courts and to keep them within their lawful bounds.' P. 323. Ex parte Bradley is then referred to and its discussion approved. Then followed Ex parte Hoard, 105 U. S. 578, 26 L. ed. 1176, where it is held that, if the circuit court had denied a motion to remand to the state court, the party aggrieved must resort to his...