Short v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 15 December 1887
• Parties: SHORT v. CHICAGO, M. & ST. P. RY.
• Court: U.S. District Court — District of Minnesota

33 F. 114

SHORT v. CHICAGO, M. & ST. P. RY.

United States Circuit Court, D. Minnesota.

December 15, 1887

Wilson & Bowers, for plaintiff.

W. H Norris and Flandrau, Squires & Cutcheon, for defendant.

BREWER J.

This is a motion to remand. The action was brought by a citizen of Minnesota against this railroad corporation, which is a citizen of the state of Wisconsin. It is an attempt at removal under the act of 1887, on the ground of local prejudice, it being too late for a removal on the ground of difference of citizenship. One ground of the motion to remand it that this court cannot take original jurisdiction of an action by a citizen of this state against a citizen of another state, and therefore, if it cannot take original jurisdiction of such an action, it cannot by removal acquire jurisdiction. I had occasion to examine that question in the state of Nebraska, and I there came to the conclusion that that proposition cannot be sustained. I think an action can be maintained in this court against a citizen of another state. I am aware that there is a decision in the circuit court of California to the contrary. FIELD, SAWYER, and SABIN, JJ., County of Yuba v. Mining Co., 32 F. 183. I shall not discuss that question at length, from the fact that my Brother SHIRAS, in the Northern district of Iowa, has written an opinion upon this point, and I will say that his opinion expresses my conclusions with respect to that matter. Fales v. Railway Co., 32 F. 673.

The other question is this: An affidavit is filed for removal, in which the affiant states that he has reason to believe, and does believe, that by reason of prejudice and local influence he will not be able to obtain justice in that forum. In other words, an affidavit is made by the officers of the corporation in the form prescribed by the act of 1867. That act reads thus: 'When a suit is between a citizen of the state in which it is brought and a citizen of another state it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of the filing said petition, he makes and files in said court an affidavit stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in said state court. ' By that act the removal was granted upon the filing of that affidavit, if in the form prescribed. The removal was absolute, and the actual existence of prejudice or local influence was not a matter for inquiry. In other words congress cast the burden upon the conscience of the party and said if he was willing to make an affidavit that he believed and had reason to believe that, from prejudice or local influence, he could not obtain justice in the state court, then he should have a removal to the federal court. Nowhere was it left to be determined as to whether or not such prejudice or influence did exist. But whenever any party litigant in the state court, with the proper citizenship existing, felt that he could not obtain justice in the state court, and was willing to express that fact in an affidavit, the right of removal went beyond the power of challenge. The act of 1887 is a complete reversal of that theory. I am aware that Judge DEADY, of Oregon, in the case of Fisk v. Henarie, 32 F. 417, was held that this portion of the act with respect to the filing of the affidavit is still in force; but I think he is mistaken. The thought which underlies the matter of prejudice and local influence to-day, and that underlying the act of 1867, are entirely different. While this act of 1867 is not in terms repealed, yet it is...