Teel v. Chesapeake & O. Ry. Co. of Virginia

• Decision Date: 06 May 1913
• Docket Number: 2,286.
• Citation: 204 F. 918
• Parties: TEEL v. CHESAPEAKE & O. RY. CO. OF VIRGINIA.
• Court: U.S. Court of Appeals — Sixth Circuit

204 F. 918

TEEL v. CHESAPEAKE & O. RY. CO. OF VIRGINIA.

No. 2,286.

United States Court of Appeals, Sixth Circuit.

May 6, 1913

Myers &amp Howard, of Covington, Ky., for plaintiff in error.

John Galvin and Maurice L. Galvin, both of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Facts necessary to the consideration now required of this cause are contained in the statement accompanying our opinion in the same case, rendered April 8, 1913. 204 F. 914. Under the rules to show cause then entered in the case, return was made in the form of a stipulation, which, by consent, is made part of the transcript heretofore filed in this court. It now appears that, upon the hearing below of the motion to remand the cause to the state court, the Chesapeake & Ohio Railway Company of Virginia introduced evidence showing that, prior to the accident in dispute, the Chesapeake & Ohio Railway Company of Kentucky had transferred and assigned its interest in the line of railway in question to the first-named railway company; that at the trial of the case 'no evidence was offered by the plaintiff or at all' respecting the Chesapeake & Ohio Railway Company of Kentucky; and that the other railway company was throughout regarded and treated by the court and the parties as the only defendant below.

One of the questions of jurisdiction of the court below, alluded to in our former opinion, concerns the court's denial of plaintiff's motion to remand the cause to the state court. This question is not presented by any assignment of error, but it is scarcely necessary to say, for it has been so often decided, that it is the duty of the appellate court to inquire into the jurisdiction of the court below. M C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 Sup.Ct 510, 28 L.Ed. 462; Fore River Shipbuilding Co. v. Hagg, 219 U.S. 175, 177, 31 Sup.Ct. 185, 55 L.Ed. 163; Chi., B. & Q. Ry. Co. v. Willard, 220 U.S. 419, 31 Sup.Ct. 460, 55 L.Ed. 521; In re Martin, 201 F. 33 (C.C.A. 6th Cir.). Should the motion to remand have been allowed? Plaintiff's intestate received his injury and died on September 8, 1909. The suit was commenced in the Kenton county circuit court on September 6, 1910. The removal proceeding was begun in that court on the 21st of the same month, and the transcript was filed in the court below October 17th following. The motion to remand was filed March 21 and overruled April 7, 1911. Meanwhile section 6 of the Employer's Liability Act of April 22, 1908 (35 Stat. 66), which simply limited the time within which actions might be brought, was, to wit, April 5, 1910, amended by adding the following (36 Stat. 291):

'Under this act an action may be brought in a Circuit Court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.'

This provision is purely remedial and is couched in plain language. Congress was clearly acting within its constitutional power when it passed the amendment. While section 2 of article 3 of the Constitution declares that the judicial power shall extend to all cases arising under that instrument and the laws of the United States, as also, among others, to cases 'between citizens of different states,' yet it was long ago settled that, as to courts inferior to the Supreme Court, their jurisdiction in every case must depend upon some act of Congress. Case of the Sewing Machine Companies, 85 U.S. (18 Wall.) 553, 577, 21 L.Ed. 914; Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576; Turner v. Bank of North America, 4 Dall. 9 (note A); Loveland, App. Jur. Sec. 2. As Justice Harlan said in Johnson Company v. Wharton, 152 U.S. 252, 260, 14 Sup.Ct. 608, 611 (38 L.Ed. 429):

'But, except in the cases specially enumerated in the Constitution and of which this court may take cognizance, without an enabling act of Congress, the distribution of the judicial power of the United States among the courts of the United States is a matter entirely within the control of the legislative branch of the government.'

It follows that the privilege of removal is not in any sense a vested right, no matter whether it be based, as here, on diversity of citizenship, or upon a right of action created by federal law, like that given by the Employer's Liability Act. The power in Congress to grant or withhold the right of removal is at last the power to prescribe the jurisdiction of courts as already stated. Such power is continuing in its nature, and of necessity includes authority to take away, as well as to bestow, the right to remove causes. Stuart v. Laird, 1 Cranch, 299, 2 L.Ed. 115. Judge Severens forcibly said in Manley v. Olney (C.C.) 32 F. 709 (and what he there said is in no wise affected by his opinion in Tiffany v. Wilce (C.C.) 34 F. 230):

'Congress may, therefore, grant or withhold altogether jurisdiction over removal cases. The jurisdiction which it has power to grant it has power to withdraw. If the right of removal was a vested right of property, quite different considerations would apply. But it is not so. It is simply a privilege of having the case tried in some other than the state tribunals. There is no property in it.'

The plenary character of this power manifestly includes discretion in Congress to classify remedies, as well as the rights thereby intended to be enforced. The power of Congress to create the rights of action given by the Employer's Liability Act is settled; and since such rights of action are limited to a particular class, there is no perceivable reason why the remedies making them available may not be likewise limited. The insistence, then, that to construe the amendment so as to include and prohibit removal on the ground of diversity of citizenship...