64
FEDERAL REPORTER.
(2) On that day the crew was ordered to handle the fore try-sall boom, preparatory to setting the fore try-sail. The libelant and a number of other passengers were sitting under the boom, and were directed by an officer to move away, which warning was expressed in three languages-English, German, and Belgian. (3) All the passengers moved away except the libelant and another. (4) While the crew were pulling up the boom by means of the port lift, the block which connected the tackle, by a swivel hook, with the eye-bolt in the deck gave way, and the boom coming down struck the libelant in the back, and inflicted permanent injuries upon him. (5) The block was constructed of the material and after the manner of those in general use in foreign vessels, and was altogether suitable for the purpose for which it was used. (6) A strong iron band was tightly bound around the block, and through it passed a swivel-hook, secured by a shoulder, which rested on the under side of the band, and between it and the top of the wooden block. (7) The swivel-hook drew out of the iron band in which it was fastened, allOWing the boom to fall and strike the libelant. This was owing to a defect in the shoulder, which could not be discovered by an exterior examination of the block, or without taking it all apart. (8) On every trip of the vessel the blocks were all overhauled, the bolts and sheaves taken out and put in order. and the swivels seen.to be in working conrlition. (9) The place where the injury occurred to the libelant was not one of special danger. The only danger was such as might result to those in the way of the moving ropes and sails, and from the possible breaking of the machinery in the process of lifting the boom. (10) Upon all the evidence in the case negligence contributory to tbe libelant's injury is not imputable to the respondent.
Unless it appears that the respondent failed in the exercise of that degl'ee of (lare and diligence which the law requires of carriers of passengers, and that its negligence in this behalf was the cause of the libelant's injury, he cannot recover. As it is found that the respondent was not negligent in the performance of the full measure of hiB duty to the libelant, his libel must be dismissed, with costs; and it is so ordered.
STATB 01' THUS V. LBWIS.
651
STA.TE OF
TEXAS t1. LEWIS and others.
(Oircuit Court, N. D. TelCa.. October Term, 1882.1
1.
REMOVAL OF CAUSES-STATE AGAINST ALIEN.
The grant of original jurisdiction by article 3, f 2, of the constitution, to the United States supreme court in all cases in which a state is a party, does not preclude congress from conferring jurisdiction upon the circuit courts in cases brought by a state against an alien; and by section 639 of the Revised Statutes, in terms and effect providing for the removal of such cases from the state courts congress has conferred such jurisdiction in removed cases. REVISED STATUTE,
2.
f 639-Aol'
OF CONGRESS, MARCH
3, 1875.
Bection 639 of B.evised Statutes is not repealed by act of March 3, 1875, ex· cept by mcrger, and a case which could have been removed under the former provision, but could not be under the latter act, may still be removed. On Motion to Remand. Olark d; Dyer and Chas. A ..Jennings, for plaintiff. Hancock & West and Gen. 1'om Harrison, for defendants. PARDEE, C. J. This cause was heard on the motion to remand at the last term by the district judge sitting in the circuit court, the motion was denied. See 12 FED. REP. 1. The motion has been reargued at this term, at the suggestion of the district judge, that the circuit judge might also pass upon the case. In reaching the same conclusion as before but little need be said in addition to the reason formerly given by the district judge. It seems now to be undisputed that the suit is one "against an alien," and that the first clause of section 639, Rev. St., (twelfth section of judiciary act of 1789,) in terms and effect provides for the removal of the case to this court. And there is not much contention that the first clause of section 639 is not repealed by the subsequent legislation of March 3, 1875, except by merger. There is no express repeal in the act of 1875, § 10, of any specified previous acts, the repeal being only of "all acts and parts of acts in conflict with the provisions of this act." "It would seem that subdivision 1 of section 639, Rev. St., is practically repealed by reason of being merged in the more enlarged right given by the act of 1875. If, however, a case should arise which could be removed under this provision, but which could not be removed under the act of 1875, the former would be held to be still subsisting." Dill. Rem. 28. And this view taken by Judge DILLON seems to be the correct view of the question. The case under consideration is not claimed to be within the provisions of the act of 1875, but it is within the pro. visions of the first subdivision of section 639. The said section v.14,no.2-5
66
.
be then held as still subsisting for this case, if for no other. The case must be taken, then, as one which congress has provide 1 may be removed from a state court to this court and be tried in this court, and the only question open for discussion and decision is whether congress had the constitutional authority to pass such provision. The suit being one by a state against an alien, there is and can be noqllestion that the judicial power of the United States extends to it, under the first clause of section 2, art. 3, of the constitution of the United States. The second clause of said section reads: " In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have ortginal jurisdiction. In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to the law and fact, with such exceptions . and under such regulations as the congress shall make."
And this brings us to the real question for determination here, i. e., does the grant'of 'original jurisdiction to the supreme court in all oases in which a. stfl,te shall be a party, preclude the congress from o()nfe,rring jurisdiction upon the circuit court in cases brought by. a. state against an alien? The amendment of course settles that in cases .brought or prosecuted by an alien against one of the United States, the courts of the United States are without jurisdiction. If congress can confer jurisdiction upon the circuit coudin cases brought by a state alien, then, as we understand section 639, Rev. St., congress has done so in cases brought by a state against an alien, in a state court, by authorizing the removal of such case to the circuit court, and directing that the case shall be pro· ceeded with.in the circuit court. Whether congress has authorized such cases to be originally instituted in the circuit court does not mat· ter at this time. The full examination given this qnestion by counsel and by ourselves shows no decision of this precise question by the supreme court, and only one decision by inferior courts of the United States, to-wit: Gale v. Babcock, 4 Wash. C. C. 199,344. There may be other cases, but our industry has not found them. The case of Gale v. Babcock, supra, was a case in all its material points identical with the one under consideration. The decision was adverse to the right of removal,and to the thus acquired jurisdiction of the circuit court; but Justice WASHINGTON, who decided the case, assumed as axiomatic the want of jurisdiction, and gives no reasons. The other cases cited by counsel as bearing on the question (Prentiss v. Brennan, 2 Blatchf. 164; Georgia v. Brailsford, 2 Dall. 402; State v. Trltstees, 5 N. B. R. 466; Wisconsin v. Duluth, 2 Dill. 406; Cohen,
STATE OF
TEXASV.LEWIS.
67
v.Virginia, 6 Wheat. 264; Osborn v. Bank, 9 Wheat. 138 ; The Wheel· ing Bridge Gase, 13 How. 520; 4 Dall. 12; 2 Pet. 136; 5 Cranch,
303; 2 Blatch£. 162; 3 Blatchf. 244) have all been considered in the opinion heretofore rendered in this case by Judge MCCORMICK; and it is only necessary to further remark that the decision in no one of them is in conflict with the conclusions reached.in the case. In all those cases, and in many others, the judges have argued the question of the jurisdiction of the circuit courts in cases where a state was the plaintiff, and have intimated opinions for and against the power of congress to confer such jurisdiction, but in no one of them was the question really in issue. In our opinion the argument, so far as reason is concerned, and so far the dicta of eminent jurists go, is in favor of the power of congress, and we think that in cases like this under consideration con· gress has conferred the jurisdiction. There is no necessity to go o",er the cases and elaborate the reasoning of judges in favor of this propo· sition. Our examination makes it clear to us that the better judgment is OD the side of the power of congress in the premises. This conclusion is strengthened by a line of authorities in cases arising under the same constitutional provisions in regard to consuls. Cases affecting consuls stand in the same precise category as cases in which a state shall be a. party; that is, the judicial power of the United States extends to them, and the supreme court is given original jurisdiction in them. The ninth section of the judiciary act of 1789 (Rev. St. § 563, subd. 17) expressly conferred jurisdiction on the district courts "of all suits against consuls or vice-consuls, except for offenses," etc. Thfl objection was early made-as early as in 1793-that this was in violation of the constitution as trenching on the original jurisdiction conferred upon the supreme court. U. S. v. Ravarra,2 Dall. 297. According to Chief Justice TANEY the question was variously decided and a.rgued by eminent judges and jurists through a series of cases thereafter, and the question remained an open one until the case of Davis v. Packard, 7 Pet. 281, directly affirmed the constitutionality of the act of 1789. See Gittings v. Crawford, Taney, 1 et seq., in which case the chief justice, after reviewing the prior decisions and opinions, and following, as he says, the case of Davis v. Packard, the opinions of elementary writers, and the contemporaneous construction of congress; decided in favor of the act of 1789. Seventeen years afterwards Judge BETTS, with Justice NELSON can. curring, held the same way. St. Luke', Hospital v. Barclay, 3
·
68
rEDERAL REeOBTEB.
BIatchf.259. Two years afterwards, in the case of Graham v. Stucken, 4Blatchf. 50, Justice NELSON again goes over the arguments ancl authorities on the question as to the constitutionality of the act of 1789, in relation to consuls, and in a very lucid opinion maintains the act. The following passage from his opinicn bears directly unon the case under consideration. He says: "Again, the g-rant of original jurisdiction to the supreme court is the same in the cases (mentioned in the previous clause of the constitution) in which a state shall btl a party, as in the case of a consul. Those cases are controversies (1) between two or more states; (2) between a state and citizens of another state; (3) between a state and foreign states; (4) between a state and citizens of a foreign state-that is, aliens. Now, if the grant of original jurisdiction be exclusive, in the supreme court, in the case of a cOllsul, it is equally exclusive in the four cases above enumerated; for the grant is in the same clause and on the same terms. And yet in the thirteflnth section of the judiciary act, already referred to, it is provided that the supreme court shall have exclusive jurisdiciton, etc., where a state is a party, etc., except between a state and citizens of other states or aliens, in which latter case it shall have original but not exclusive jurisdiction. According to the argument, the whole of this exception would be unconstitutional, as the cases mentioned should have Leen vested exclusively in the supreme court." Since this case was decided, in 1857, we find no case in any federal court where the constitutionality of the act of 1789, in relation to consuls, has been disputed, and it is very questionable if there is any doubt at the bar at this day as to. the question. If there is no doubt -no qliestion as to the power of congress to confer jurisdiction upon the inferior courts-in cases affecting consuls, why should there be in cases where a state is a party, since, as Justice NELSON well says, "the grant is in the same clause and on the same terms?" The motion to 'remand this case to the state court, from which it is brought here, is denied, with costs. The lands involved in this case were the university lands of the state of Texas,situated in McLennan county, about 11 leagues in extent, and very valuable.
See S. C. 12 FED. REP.
