State ex rel. Gremillion v. National Ass'n for Advancement of Colored People

• Court: Court of Appeal of Louisiana
• Writing for the Court: ELLIS
• Citation: State ex rel. Gremillion v. National Ass'n for Advancement of Colored People, 90 So.2d 884 (La. App. 1956)
• Decision Date: 26 November 1956
• Docket Number: No. 4292,4292
• Parties: STATE of Louisiana ex rel. Jack P. F. GREMILLION, Attorney General, v. NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al.

Page 884

90 So.2d 884

STATE of Louisiana ex rel. Jack P. F. GREMILLION, Attorney General, v. NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al.

No. 4292.

Court of Appeal of Louisiana, First Circuit.

Nov. 26, 1956.

Alex L. Pitcher, Jr., Baton Rouge, R. B. Millspaugh, Opelousas, A. P. Tureaud, A. M. Trudeau, Jr., New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., Wm. C. Bradley, Asst. Atty. Gen., for appellees.

ELLIS, Judge.

Suit was brought on March 1, 1956 against appellant Association (and also individually against members of its Board of Directors and Executive Committee) on the relation of the Attorney General pursuant to LSA-R.S. 12:401, 12:405, seeking a temporary and a permanent injunction to enjoin defendant Association and its officers from conducting any business in the state and dissolving defendant Association in Louisiana.

The hearing on the preliminary injunction was held on March 29, 1956, and an injunction issued against defendant Association in accordance with the prayer of the petition herein. The suit was dismissed as against the co-defendant individuals, officers of defendant Association.

Defendant Association appeals, and its sole contention is that the preliminary injunction issued on March 29, 1956, and all proceedings in State court subsequent thereto are null and void, since the cause was removed to the United States District Court, Eastern District of Louisiana, on March 28, 1956, pursuant to and in accordance with Title 28, United States Code Annotated, § 1446, which provides:

'Procedure for removal.--(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

'(b) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

'If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

'(c) The petition for removal of a criminal prosecution may be filed at any time before trial.

'(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.

'(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, Which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

'(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court. June 25, 1948, c. 646 (§ 1), 62 Stat. 939, amended May 24, 1949, c. 139, § 83, 63 Stat. 101.' Emphasis added.

Defendant Association filed a copy of federal court 'petition for removal' in the 19th Judicial District Court of Louisiana on March 28, 1949, at 3:40 P.M. together with a copy of a written notice of said removal directed to petition of same date.

When the preliminary injunction came up for hearing on the following day, on March 29, 1956, defendant Association objected to further proceedings since the petition for removal had been filed in the United States District Court within twenty days of service and since written notice was given to petitioner of said removal. Under 28 U.S.C.A. § 1446(e), it is urged, this has effected removal of this cause to the federal court and the 'State court(s) shall proceed no further unless and until the case is remanded.'

The State urged that the removal was ineffective for several reasons (such as that actions to which the State is a party may not be removed to federal courts, and that the written notice was ineffective since placed in the Attorney General's box rather than given to him personally), and relied upon Patterson v. State, 234 Ala. 342, 175 So. 371, and similar cases, which held that, although removal of a cause from State to Federal court is a matter of right, nevertheless the state court has the right and the power to examine the application for removal and to ascertain whether it complies with the Federal removal statute, and to retain jurisdiction in the event of non-compliance. This was under the old Sections 72, 74 and 75 of Title 28 U.S.C.A.

However, the law is clear that such jurisprudence has been superseded by Congressional enactment in 1948 and 1949, which pertinently provided the text of Section 1445, Title 28, above quoted in full. The effect of the change was summarized by the Supreme Court of Idaho in Hopson v. North American Insurance Co., 71 Idaho 461, 233 P.2d 799, 802, 25 A.L.R.2d 1040, 1044--1045, as follows:

'By providing in Section 1446 that taking such procedural steps effects the removal of the cause to the Federal Court, which is not found in the earlier Act, Congress has thereby expressly effected the removal of the cause to the Federal Court irrespective of the ultimate determination of the question as to whether or not it is removable; it is not thereafter in the State court for any purpose until and unless the cause is remanded; for that reason the State court is expressly prohibited from proceeding further until and unless it is so remanded; under Sec. 72 the removal was never accomplished unless it was a cause removable; under the present Act removal is accomplished and jurisdiction attaches in the Federal Court even though it may be subsequently determined that it should be and is thereafter remanded. Removability is no longer a criterion which gives or denies validity to the proceedings in the State court while a petition for removal to the Federal Court is pending; any such proceedings in the State court under the present act are not sanctioned; they are prohibited.

'Apparently to overcome the endless and multiple litigation and resulting severe hardships which arose under Section 72 as construed, the amendment was prompted not only for the purpose of removing from the State court the authority in any event to pass upon the question of removability but also for the purpose of effectuating the removal by following all the statutory steps as effectively as if the cause had originally been filed in the Federal Court, thus voiding any further proceedings in the State court until and unless the cause is remanded.

'We hold that under 28 U.S.C.A. § 1446, a case is removed from the jurisdiction of the State court upon a compliance with the procedural steps therein set forth for all purposes until and unless it is subsequently remanded to such State court; that until and unless the case is remanded no valid proceedings can be taken in the State court at any time following the filing of such petition and bond and giving notice thereof to all adverse parties and filing a copy of the petition with the Clerk of the State court; furthermore, that any action so taken in the State court thereafter and prior to remanding the cause to such State court, will have no force or effect.'

In the Hopson case, a default was taken following the filing of the petition for removal to the federal court. The federal court remanded the case to the State court, and on the following day the defendant moved to vacate the default entered against it in the interim between the filing of the removal petition in federal court and the remand of the proceedings to State court by the federal court. The Supreme Court of Idaho affirmed the district court's order setting aside and vacating as void default so taken.

Likewise, the Supreme Court of Mississippi very recently in Bean v. Clark, Miss., 85 So.2d 588, vacated a judgment entered against defendant who had filed a removal petition in Federal court and a copy thereof in State court, holding that 'the filing of the petition and bond by the nonresident defendant for a removal of the cause to the United States District Court, effected the removal of the entire cause and that no further proceedings could thereafter be had in the circuit court where the suit had been filed, unless and until the cause...