Ruff v. Gay

• Decision Date: 03 April 1933
• Citation: 3 F. Supp. 264
• Parties: RUFF v. GAY.
• Court: U.S. District Court — Southern District of Georgia

3 F. Supp. 264

RUFF v. GAY.

District Court, S. D. Georgia, Augusta Division.

April 3, 1933.

Thos. W. Hardwick and I. S. Peebles, Jr., both of Augusta, Ga., for plaintiff.

Hitch, Denmark & Lovett, of Savannah, Ga., for defendant.

BARRETT, District Judge.

The receiver of the Savannah & Atlanta Railway was appointed by the United States District court for the Southern District of Georgia.

Major Ruff brought suit in the state court against said receiver to recover damages for the alleged negligent killing of his son by the agents of the receiver by operating a train on the line of said railway. Acting under the authority of section 76 of title 28, USCA, R. S. § 643, said case was removed by the receiver to the United States District Court of the division in which is included the county where such suit was brought.

Plaintiff moves to remand said cause upon the following grounds:

1. The defendant is not "an officer of the courts of the United States," within the purview and true intent of said section 76.

2. Because said suit is not a civil action against the defendant "for or on account of any act done under color of his office, or in performance of his duties as such officer" within the purview of such section.

3. Because said suit was brought against such receiver "in respect to acts or transactions of his in carrying on the business connected with such property," and such action was properly brought in the state court within the purview and true intent of section 125 of title 28, USCA, and is therefore not removable.

4. Because this court has no power to remove said suit from the state court and no jurisdiction to hear and determine the same.

It is important to understand exactly the language and the dates of the respective statutes involved.

The aforesaid section 125, which is the Act of March 3, 1887, § 3, as amended on August 13, 1888, § 3 reads as follows: "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice."

At the date of the enactment of said section 125, the relevant parts of section 76 read as follows: "When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law" said suit or prosecution may by prescribed proceedings be removed to the appropriate United States court."

On August 23, 1916, the said section was amended by incorporating therein after the last words of the aforesaid quotation, namely, "revenue law," the following: "* * * or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer."

1. It is both appropriate and convenient to deal with grounds 1 and 2 of the motion to remand in this one section. "It is frequently and authoritatively said that a receiver is an officer of the court appointing said receiver." Clark on Receivers, § 34, citing, among many other authorities, Porter v. Sabin, 149 U. S. 473, 13 S. Ct. 1008, 37 L. Ed. 815; Stuart v. Boulware, 133 U. S. 78, 10 S. Ct. 242, 33 L. Ed. 568; Booth v. Clark, 17 How. (58 U. S.) 322, 15 L. Ed. 164; Quincy, etc., Railway Co. v. Humphreys, 145 U. S. 82, 12 S. Ct. 787, 36 L. Ed. 632; Union Bank v. Kansas City Bank, 136 U. S. 223, 10 S. Ct. 1013, 34 L. Ed. 341; Atlantic Trust Co. v. Chapman, 208 U. S. 360, 28 S. Ct. 406, 52 L. Ed. 528, 13 Ann. Cas. 1155.

Among other allegations in the original petition in this case are the following:

"* * * The defendant, Charles E. Gay, Jr., was appointed as Receiver of said Railway Corporation by the judge of the United States Court of the Southern District of Georgia, in the exercise of equity powers of that Court and since said date date of appointment, said defendant as such Receiver has been engaged in carrying on the business connected with such railway property, to wit: the operation of the same as a railroad.

"That while so engaged in operating said railroad property as such Receiver, the said defendant injured and damaged the plaintiff in the sum of Five Thousand ($5,000) Dollars by reason of the facts hereinafter alleged."

In view of such allegations and decisions it is difficult to understand upon what bases can be soundly rested the contentions either that the receiver is not an "officer of the courts of the United States" or that the original action in this case was not "for or on account of any act done under color of his office or in the performance of his duties as such officer."

There is abundant authority that a receiver is such an officer of court. Matarazzo v. Hustis (D. C.) 256 F. 882, 887; American Locomotive Co. v. Histed (D. C.) 18 F.(2d) 656; Newell v. Byram (D. C.) 18 F.(2d) 657; Id. (C. C. A. 8th) 26 F.(2d) 200; Berens v. Byram (D. C.) 26 F.(2d) 953; Elliott v. Wheelock (D. C.) 34 F.(2d) 213; Barnette v. Wells Fargo Nevada National Bank, 270 U. S. 438, 46 S. Ct. 326, 330, 70 L. Ed. 669.

2. Grounds 3 and 4 of the motion to remand are dealt with together.

Movant urges that such section 125 is a special act dealing only with suits "in respect of any act or transaction of his in carrying on the business connected with such property," and that the general act of 1916, amending said section 76, cannot have the effect of repealing said section 125, under the well-established principle that a prior special act is not repealed by a subsequent general act unless it is specifically so declared or "the implication to that end be irresistable." Rodgers v. United States, 185 U. S. 83, 22 S. Ct. 582, 46 L. Ed. 816; Petri v. F. E. Creelman Lumber Co., 199 U. S. 487, 26 S. Ct. 133, 50 L. Ed. 281; Ex parte United States, 226 U. S. 420, 33 S. Ct. 170, 57 L. Ed. 281; Washington v. Miller, 235 U. S. 422, 35 S. Ct. 119, 59 L. Ed. 295.

It is further urged by movant that in view of the decision of the Supreme Court of the United States in Gableman v. Peoria, etc., Railroad Co., 179 U. S. 335, 21 S. Ct. 171, 172, 45 L. Ed. 220, and especially in view of the subquoted statement by Chief Justice Fuller, the whole purpose of the act of 1887-1888 would be defeated if the right of removal existed and that therefore the intention to repeal such special act by implication does not exist, and that if Congress had intended so to repeal such act it would have explicitly done so.

For appreciation of the cogency of this argument it is essential to exactly understand the Gableman Case. This case was before the Supreme Court on a certificate which states that the receiver removed the cause into the circuit, on his sole petition, "upon the ground that it was a case arising under the Constitution and laws of the United States"; and again, "The receiver rested his contention that the case arose under the...