State of Oklahoma v. Willingham
| Citation | 143 F. Supp. 445 |
| Decision Date | 07 August 1956 |
| Docket Number | Crim. No. 25876. |
| Parties | The STATE OF OKLAHOMA, Plaintiff, v. James Roy WILLINGHAM, Defendant. |
| Court | U.S. District Court — Eastern District of Oklahoma |
Paul Brewer, Asst. U. S. Atty., Muskogee, Okl., for Willingham.
William Bishop, County Atty., Seminole, Okl., for the State of Oklahoma.
The defendant, James Roy Willingham, a rural mail carrier, was charged in the Justice of the Peace Court, Seminole County, Oklahoma, with a violation of the traffic laws of the State of Oklahoma. The offense charged is a misdemeanor, under the law of Oklahoma, punishable by a fine of not less than $10 nor more than $200, or imprisonment in jail for not less than five days nor more than thirty days, or by both such fine and imprisonment.
The United States Attorney, deeming the case removable under 28 U.S.C.A. § 1442, filed a petition asking a removal to this court and alleging as follows: "At the time and place of said alleged offense, your petitioner was an officer and employee of the United States of America acting under color of his office (emphasis supplied) in that at the time and place your petitioner was regularly employed by the United States Post Office Department as a rural route mail carrier for rural route No. 1, Seminole, Oklahoma, and was then and there engaged in performing his duties by delivering mail to various points along rural route No. 1, Seminole, Oklahoma."
A motion to remand was filed by the County Attorney of Seminole County, Oklahoma, based upon five different contentions as follows:
For the purpose of the motion to remand, the Court accepts as true the statements contained in the petition for removal that the defendant is an employee of the United States Post Office Department; that he was a rural mail carrier and was, at the time of the incident alleged in the complaint, delivering mail on his route. The serious question presented is whether or not the facts accepted as true establish that "at the time and place of said alleged offense your petitioner was acting under color of his office." Whether or not petitioner was so acting is a conclusion which does not necessarily follow from the facts.
The history of this type of legislation dates back to 1815. The present § 1442 of the 1948 Revised Code is a consolidation of §§ 76 and 77 of Title 28 (1940 Edition), being amended Section 33 of the Judicial Code, which was limited in its application to revenue officers in the enforcement of the criminal or revenue laws.
Revised Section 1442 made no change in the theory or basis for removal. It merely extended its application to "all officers of the United States or any agency thereof."
A test of the power to remove criminal prosecutions from state courts came in State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648, wherein the Act of July 13, 1866 was involved. State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449, and State of Colorado v. Symes, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253, both dealing with Judicial Code 33, were concerned primarily with the sufficiency of the petition for removal, but also furnished much help in determining the meaning of the language "under color of such office."
State of Tennessee v. Davis sustained the constitutionality of the law under Article 3, Section 2 of the United States Constitution which provides: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, * * *" but in doing so recognized the case as of great importance, "bringing as it does into consideration the relation of the general government to the government of the states and bringing into view not merely the construction of an Act of Congress but its constitutionality." The petition for removal in the case was determined to be adequate.
State of Tennessee v. Davis, in my judgment, stands for the principle that "a claim of federal right or authority for doing the act complained of is recognized as the basis for removal." This significant statement is made: "If, therefore, the statute is to be allowed any meaning, when it speaks of criminal prosecutions in state courts, it must intend those that are instituted for alleged violations of state laws, in which defenses are set up or claimed under United States laws or authority."
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