State of North Carolina v. Sullivan

• Decision Date: 20 April 1892
• Citation: 50 F. 593
• Court: U.S. District Court — Western District of North Carolina
• Parties: STATE v. SULLIVAN et al.

50 F. 593

STATE v. SULLIVAN et al.

United States Circuit Court, W.D. North Carolina.

April 20, 1892

Benjamin F. Long, for plaintiff.

R. Z Linney and M. S. Mott, for defendants.

DICK District Judge.

Many state and federal courts of the highest authority have heard argument and carefully considered questions of law arising under section 643 of the Revised Statutes of the United States, ^[1] and in able, elaborate, and positive decisions declared its constitutionality, and forcibly announced the wise and just principles of public policy upon which it is founded. They have also clearly defined the extent of its operation, and the methods of procedure for the application of its provisions in the administration of justice. This statute is highly remedial, and I am of opinion that it should receive a liberal construction in all courts, as experience has shown that it is essential to the effectual enforcement of the internal revenue laws of the federal government, which is the common government of the people of all the states of the Union. This statute is not a usurpation of authority in disregard of the rights of the states. It certainly cannot be considered as unjust and unreasonable for the federal government to assert the constitutional and essential right to investigate in its own courts the alleged wrongful conduct of its own officers when acting under color of its authority and in obedience to its mandates. Such a right is inherent and inseparable from the nature of our general government and the exercise of such power is an imperative duty, the performance of which is indispensable to its existence, and the proper and efficient discharge of the important functions with which it is invested by its constitution and laws. These fundamental principles have been so often, ably, and fully considered and determined in judicial opinions that I deem further discussion unnecessary in this case. In the case of State v. Hoskins, 77 N.C. 530, the construction of this statute was involved, and READE, J., in delivering the opinion of the court, clearly and forcibly states principles of law that have been approved by many subsequent decisions of other courts:

'Where a United States officer is charged with a duty, and does acts, under color of his duty, which but for his office would be a crime against the state, then and in that case the United States courts have jurisdiction, and under the act of congress can remove the case from the state courts into the federal courts. This power is indispensable to the United States, and is in no way derogatory to the state.'

In the case of Ableman v. Booth, 21 How. 506, the supreme court defines with great clearness and force the constitutional relations existing between the courts of the states, the people of the states, and the federal government. The faithful observance of the duties of such relations is essential to the peace, harmony, and prosperity of the national Union.

Upon careful examination of the proceedings instituted for the removal of this case from the state court to this court for trial, I find that they are in substantial conformity to the act of congress. The petition of the defendants represented that they were officers and agents of the government, duly appointed and acting under the revenue laws of the United States, and that the acts for doing which they are criminally prosecuted in the state court were acts done under color of their office and employment, and in the performance of their official duties, in the enforcement of said revenue laws. The representations set forth in their petition, showing the nature of the prosecution and the authority and circumstances under which they acted, were duly verified by oath, and by the certificate required by law to be given by the legal counsel of the petitioners. As the circuit court was not in regular session, the petition was presented to the deputy clerk of such court at his office in Statesville, and was duly filed in said office, and the case was thereupon entered on the docket of the circuit court, to be proceeded with as a case originally commenced in said court, and a writ of certiorari was duly signed and issued by a regularly appointed and qualified deputy clerk, acting in the name of the clerk of the court. This writ was placed in the hands of the marshal of this district, and a duplicate copy was delivered by him to the clerk of the state court before the commencement of the trial of the case in said court. As the defendants were on bail, and not in actual custody, a writ of habeas corpus cum causa was not applied for in the petition, and was not issued by the deputy clerk. The recognizance in the state court was transferred by operation of law in the removal of the case, and the defendants were under obligation to appear in this court and answer the defendants were under obligation to appear in this court and answer the charges in the indictment found by the grand jury of the state court.

I entertain the opinion that when proceedings for the removal of a criminal prosecution from a state court to a federal court for trial are in conformity to the act of congress providing for such removal, the representations averred in the petition of defendants, constituting sufficient grounds for removal, verified by oath and by certificate of counsel must be accepted as true, and the case is ipso facto removed to the circuit court, and the jurisdiction of the state court is at an end, unless the case shall be remanded thereto. Spear, Fed. Jud. 484. The rights of the defendants and the jurisdiction of the circuit court depend upon the authority of law, and not upon the correct performance of a ministerial duty by the clerk of the court. The act of congress does not invest the clerk with any judicial function or discretion, but commands him to issue the prescribed auxiliary remedial process to prepare the case for trial. No duly authenticated record of the state court has been returned by the clerk, in obedience to the writ of certiorari, but I am informed that no objection was made in the state court as to the regularity and sufficiency of the proceedings for removal up to the time of filing the petition in the office of the clerk of this court, and the entering of the cause upon the docket. The refusal of the court to recognize the right of removal was founded upon the fact that the writ of certiorari was not personally issued by the clerk; and the court was of opinion that such writ, signed and issued by the deputy clerk in the name of the clerk, was irregular, erroneous, and void. The act of congress, in express terms, prescribes the nature of the representations that must appear in the petition, the method of verification, and the manner of filing the same. When these requisites are complied with, the proceeding at once has the operative force and effect of removing the case, as the statute positively declares that 'the cause shall thereupon be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in that court. ' This clause, so clear and imperative in its terms, must, under a reasonable construction, have the force and effect of conferring paramount jurisdiction on the circuit court, and full power to proceed, at once, to have the cause prepared for trial. This jurisdiction is as complete and plenary as if the cause had been originally commenced in the court. As this court had rightfully acquired jurisdiction under a paramount constitutional law of the United States, the state court was divested of its former jurisdiction, and could not legally proceed to try the cause. The writ of certiorari mentioned in section 643 is an auxiliary writ of the court, issued by its ministerial officer, the clerk, or the regularly appointed and qualified deputy clerk, in order that the removed cause may be tried as fairly and speedily as possible. The purpose of issuing such writ is to procure the record of the state court, so that the circuit court may proceed with the case where the jurisdiction of the state court ceased. This writ was also intended to give the state court notice of the removal of the cause, so that it might have an opportunity of complying with a duty expressly imposed by a paramount law of the federal government. The subsequent clause in the statute, declaring that 'the suit or prosecution, upon the delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the state court shall be void,' was intended as a positive inhibition of any further proceeding in the state court, and to authorize the circuit court to proceed in the manner provided. Conceding for a moment that the objection to the ministerial process of this court has some legal foundation, it is merely technical, and does not affect the merits of the case. As the process issued from a court having rightful and competent jurisdiction of the case, it was not void, and cold only be irregular or erroneous. Even if it was irregular or erroneous, it gave full and explicit notice of the assumed jurisdiction of the court, and of the rights claimed by the defendants under the constitution and laws of the United States, as well defined and established by decisions of our state supreme court and the supreme court of the United States. State v. Hoskins, 77 N.C. 530; Tennessee v. Davis, 100 U.S. 257; Davis v. South Carolina, 107 U.S. 597, 2 S.Ct. 636. Under such circumstances it seems to me that the state court could, as a matter of comity and common justice, have given the defendants a reasonable opportunity of having a mere irregularity of proceeding corrected, and thus administer substantial justice, and avoid any...