, BIRDSEYE t1. SHAEFFER.
821
BIRDSEYE 'V. SHAEFFER
et al.
(Circuit Court, W, D. Texas. December 20, 1888.) 1. REMOVAL OF CAUSES-ACT OF 1887-PENDING CAUSES-CONSTITUTIONAL LAW. Since the inferior federal courts owe their existence and powers enti'rely to that body has full powers over them. The provision of the act of March 3, 1887. therefore, that the circuit court shall remand a cause removed <>n the ground of local influence and prejudice when on application it has examined the affidavit and its p;rounds. and not become satisfied that the remov· ing party will not be able to obtain justice in the state court, is not, as regards' pending causes. unconstitutional. ' :2. SAME. An order settin'p; aside another order remanding a cause to the state court, from which it had been removed on the ground of local prejudice. is not a final order, and the cause remains pending. Hence the provision of the act of March 3. 1887. for an inquiry into the question of local prejudice, applied to a cause at such a stage when the act was passed. 3. SAME. An order remllJ;lding th" caUSll after suchan inquiry does not removinp; party oJhis property without due process of law, because after the order retaining the' cause he had spentrnoney in preparing for trial.' " , 4. SAME. ' The removing party is not left remediless by a remand. since the removing order did take away the state court's jurisdiction, but merely held it in abeyance while the cause was in the circuit court, and the state court is now· bound to resume it. 5. SAME. It is no .objection to the remand that the evidence taken will not be admissible in the state, court. That isa matter for the state legislature.
At Law. Motion to set aside an order remanding the cause to the state court. Action by Lucien Birdseye against F. W. Shaeffer and othets, to recover certain land. . Hancock, Shelly &: Hancock and Bethel Coopwood, for plaintiff. John A. Green, j{. O. Green, McCampbell &: Welch, and Staytan &: Kl8berg, for defendants·. MAXEY, J; This is a moHon made by the plaintiff, in which he seeks to set aside aQ order, granted at a former day of the present term,remanding the cause to the Statf! court. The suit was originally instituted by the plaintiff, a citizen of the state of New York, in the district court of Nueces county, against Shaeffer et al., citizens of Texas, to recoyerf,l. mrge and valuable tract ofland situated in Nueces county. Under the local prejudice clause of the act of 1867, (Rev. St, § 639, subd. 3,) ;filed in the state court a petition, bon,d,anda.ffidavit in the statutory form to remove the cause into this court. September 2, 1885, the judge entered an order authQrizing the removal of form: "It is the suit in by the 1:).e accepted, and Slaid bond approved, and; that this court proceed nC), further in t,his, clltlise,andthat this9,Rp,Seberellwv,ed into the 'United States circuit court in and for the Western district of
FEDERAL REPORTER,
·vol. 37.
San Antonio." In obedience to the order of removal, the transcript was filed in this court on the2d day of Novembet, 1885.: November 3, 1885, the defendants filed a motion to remand the suit to the state court, and the motion was granted; but no inquiry into the truth of the affidavit made by the plaintiff for removal of the suit was sought in that motion, and no such inquiry at that time was entered upon by the court. On the 5th day, of November, 1885, the remanding order was set aside, and the cause retained in the circuit court for trial. On. October 14, 1887, th,e defendants, in accordance with the provisions of the act of March 3, 1887, presented to the court an application, under oath, in which they deny the existence of prejudice against the plaintiff in Nueces county, and pray that the truth of plaintiff's affidavit for removal, and the grounds an order remanding the suit to the thereof, be inquired into, and court of original jmisdi(jtion. Upon the issue thus raised each party took the testImony of a number of witnesses by deposition, and others were personally present, and the question was finally submitted at this term for determination. After hearing the proofs and the arguments of caunsel, the court was not satisfied that the plaintiff would not be able to obtain justice in the district court of Nueces county, and an order was, a<:Cbrdingly made remanding the suit to that court. The present motion seeks to set aside the last-mentioned order on the ground that so much of the act of March 3, i$87, as authorizes causes then pending in the circuit courts, and properly removed thereto under the provisions of a prior act, to be remanded to the state courts, is in contravention of the constitution. The particular clause of the act complained of by the plaintiff reads as follows: '
..At any time before the trial of any suit which is now pending in any circQit court, or may hereafter be entered therein, and which has been rl'moved to said court from a state court on the affidavit of any party plaintiff that he had reason to believe, and did believe, that from prejudice or l()cal influence he was unable to obtain justice in' said state cOllrt. the t'ircuit court shall, on the application of the other party. examine into t.he truth of said affidavit; and the grounus thereof; and, unless it shall app"ar to the satiijfaction of sllid court that said party will not be able to obtain jUliticH iu such state court, it shaU "caUStl. the same to be l'emandl'd Laws U. S. 1887-88, p. 435· . . . ,.
The law, in its terms, applies to removed suits pending in the circuit COUl't, and which have not been determined. "At any time," says the' stattite, "before the trial of any suit pending, " an examination shall be made into the truth of the a.ffidavit foiremoval, and the grounds thereof. It cannot be said, therefore, that congress intended by the act to depriye a person of the fruits ofaJudgrnent which had been previously recovered. The order of November 5', 1885, retaining the cause in 'this conrt, cannot be So regarded, for the that it is in its nature interlocutory, a proceeding in fieri; arid subject to revision and correction· by the court, ifdeenled erroneous, until the cause had passed beyond its jurisdiction tcfa'n appellate tribunal after the entry of final judgment. This rule of practieewould without the aid, and In the absence; of the act of 1887. i ,
11. S:a;AEFFER.
823
Speaking upon this point, it is said, in thecaBeof Ayres v. 112 U. 8.190, 5 Sup.'Ct. Rep. 90, thatfifth section .oftbeact of Maroh 3,1875, makes it the duty of the circujt court of the !Vnited States to remand a cause which has been removed from a state court when it shall appear ,to the satisfaction of the court, at any time after the sujt has,been removed, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court. For this purpose the .circuit court retained its power over the suit and the parties ul,ltil the end of the term at which the final decree was rendered. The parties were not. in law, discharged frpm their attendance in the cause until the close of the term, and the decree, though entered. was ' in the breast of the court' until the final adjournment." Prior to the passage of the act of March 3, 1887, therefore, no final jUdg;ment had been entered in the cause, and the snit stood as other suits upon the docket awaiting disposition according to law and the rules of practice of the court. And'no reason is perceived why the former order oithe court may notbavebeenreconsidered, if erroneous point of law, and an order made ;remanding the cause pursuant to the provisions of previous sta.tutes, subject, however, to the plaintiff's right under those statutes to have it reviewed by the supreme court. Railroad 00. Y. Koontz, 104 U. S. 15, 16. That being the status of the suit on March 3,.1887, congress on t4at day passed the act authorizing, in one ot its clausl;ls, an inquiry to be made into the truth of the affidavit made by the plaintiff Aor removal, leaving it discretionary with the courts to remand 01' retain the causa as the ends of jilstice, upon the case shown by the testimony" shouldgemand.See act mpra. ..' . Was theobjootionableclause of the statute enacted by congress in pursuance Qf a po'wer conferred by the. constitution? 'fhe question here is . simply one of constitutional power. The policy .of the law, right or wrong; wise or unwise, is a matter remitted entirely to the wisdom and discretion of the law-making' power. Nor can the courts inq,uireinto the motives Of thelegislaturejthey Can only examine into its power under the c.onstitution. Ex parte McCardle, 7 Wall. 514. And while the courts way decllire an act of congress to be repugnant to the constitution, "the duty is one of great delicacy, and only to be performed where the repugnancy is clear,and the conflict irreconcilable. Every doubt is to be resolved in (avor of the constitutionality of the law." Mayor v. Cooper, 6 Wall. 251: Bearing in mind these cardinal principles which guide the let us examine into. the power of congress courts in construing to enact the law under consideration. To arrive at a correct understanding ofthequestion it will be necessary to look tothe powers of the circuit courts, .and the sources whence they derive. their jurisdictioni "The judicialpower," by the constitution,"shall be vested in one supreme court, lind iIi sueh inferior courts as the congress may from time to time ordain and establish." Const. U. S. art. 3, § 1. The inferior courts, therefore, .while authorized' by the constitution, owe their powers and jurisdiction to congress, and can have ,no powers not conferred by conthis poig.,t it said by the suprl:lme court in Cary y. OUrti8:
824
vol.
37.
"That the judicial power of the United States, although it has its origin in the constitution, is (except in enumeratedinstances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of congress, who possess the sole power of creating the tribunals to the supreme court) for the exercise of judicial power, and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good. To deny this position would be to elevate the jUdicial over the legislative branch olthe government, and to give to the former powers limited by its own discretion merely. lt follows, then, that the courts created by statute must look to the statute as the warrant for their authority. Certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may he clearly denied to them. This argument is in no wise impaired by admitting that the judicial power shall extend · to all cases arising under the constitution and laws of the United States. Perfectly consistent with such an admIssion Is the truth that the organization of the judicial power, the definition and distribution of,the subjects of juris· diction in the federal tribunals, and the modes of their action and authority. have beeu, and of right must be, the'work of the legislature. ... ... ... The courts of the United States are all limited in their nature and constitution, · an,d have not the. powers inherent in courts existing by prescdption or by the. common law." 3 How. 245, 246. The court uses this language in Sheldon v. Sill: "The third article of the constitution declares that' the judicial power of the, United I:ltates shall be vested in one supreme court, and such inferior courts as the congress may, from time to time, ordain and l:'stablish.' The second section of the same article enumerates the cases and controversies of Which the judicial power shall have cognizance, and, among others, it specifies. 'controversies between citizens of different states.' * * ... And it, would seem to follow, also, that. having a right to prescribe, congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers. No one of them can assert a just claim to jurisdiction exfrom all. 'fhe constitution has. clusively conferred on another, or defined the limits of the judicial power of the United States, but has not prescribed how much of it shall he exercised by the circuit court. Consequently, the statute, which does prescribe the limits of their jurisdiction, cannot b& · in conflict with the constitution, unless it confers powers not enumerated therein." 8 How. 448, 4.49. Discussing the constitutionality of the act of 3d March, 1863, and the· act amendatory thereof, passed May 11, 1866, authorizing the removal of certain cases, the supreme court say: · "How jurisdiction shall be acqUired by the inferior courts, whether it shall be original or appellate, or original and appellate in part, and the manner of procedure in its exercise after it has been acqUired, are not prescrlhed. The constitution is silent upon those sUbjects. They are remitted without. check or limitation to the wisdom of the legislature." MayO?' v. Oooper. 6 Wall. 251,252; Asselisor v. Osbornes, 9 Wall. 575; 00. v. Dunn, 19 Wall. 226,227. The authorities cited-and numerous others might be added-conclusivcly demonstrate that the jurisdiction of the circuit court, the mode of its exercise, the practice and procedure of those courts, are aU matters.
.·8IRDSEYE ..,. ·SH4EFj!'ER.
825
remitted to the discretion of congress, which may regulate the same according to its ,own pleasure. And as a result of these principles it has been held that, when the jurisdiction of a cause depends upon a statute, the repeal of the statute takes away the jurisdiction. "And it is equally clear," says the supreme court, "that, where a jurisdiction, conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction." Insurance Co. v. Ritchie, 5 Wall. 544. Upon examining the Ritchie Case, it will be seen that the suit,pending when the repealing act of congress was passed, fell with the repeal of the statute authorizing its institution. And the same principle is announced in Assessor v. Osbornes, 9 Wall. At page 575 the court say: "Jurisdiction in such cases was conferred by an act of congress, and. when thataet of congress was repealed, the power to exercise such jurisdiction was withdrawn, and inasmuch as the repealing act contained no saving clause, all pending actions fell, as the jurisdiction entirely upon the act of congress." To the same effect are the following authorities: U. S. v. Boisdore's Heirs,8 How. 120, 121; Norris v. Orocker, 13 How. 440; Ex parte McChrdle, 7 Wall. 514; Morey v. Lockhart, 123 U. S. 56 et seq., 8 Sup. Ot. Rep. 65; Wilkinson v. Nebmska, 123 U. S. 286 et seq., 8 Sup. Ct. Rep. 120; Sherman v. Grinnell, 123U. S. 680, 8 Sup. Ct. Rep. 260. In the case of Boisdore's Heirs,trUpra, the court express the rtlle in these words: "It is true that this court can exercise no appeliate power over this case unless it is conferred upon it by act of congress. And if the laws which gave it jurisdiction in such cases have expired. so far as regards claims in the state {)f Mississippi, its jurisdiction over them has ceased, although this appeal was actually·pending in this court when they expired." Mr. Chief Justice W AtTE, speaking for the court, in Railroad 00. v. arant, says: "It is equally well settled that if a law conferring jurisdiction is repealed without' any reservation as to pending cases, all such cases fall with the law." 98 U. S. 401. . The case of Sherman v. Grinne.ll, supra, arose under the removal act of March 3, 1887, and the question was presented whether the supreme -court could take jurisdiction on appeal or writ of error if the order to remand was made while the act of March 3, 1875, was in force, but the writ of error not brought until after the act of March 3, 1887, went into The court was of unanimous opinion that jurisdiction did not attach; and it is said: "This is the logical result of what has already been decided. Until the act ill 1875 there was no such jurisdiction. Railroad Go. v. WiswaZl, 23 Wall. 507. The provision of that act giving the juril'ldiction was repealed by the .act of 1887 without any reservation as to pending cases. the proviso in the repealing section haVing reference ·only to the jurisdiction of the circuit court and the disposition of the suit on its merits.' As a consequence of this the repeal operated to take away jurisdiction in cases where the order to remand had been made. but no appeal or writ of error taken, because ·if a law conferring j urismotion is repealed without a reservation as to pending cases, all such cases fall with the la w.' It follows that we have no jurisdiction of this writ of error, it is accordingly dismissed."