·.I!
, :!
UNITED S1oATES: '!1; .WAN LEE. , , ,
'. :1
.(lHlltrict OO'Ur4 D. WasMnaton, ,!:'"!
N.' D. December 15, 1800.) " " ,< '
COUI\TII-DlWlllQN OpDISTRIOT-JuRo_
The act BubdiViding the dilitrict ()f"Washitigton, and fixing the time,s and places fOr hOl,din,g, terms,ct, th,e" an,d (iliJtrict courts therein,' in e,trect lim,its th,e jur,iS,diotion so that orimes committed within in the courts, for the re$pectivedivisions wbi9h include 'the places of their commission; and jurors be'drawn trom the'oount.iesconstitut.ingthe divi!ilon for whion the' term is (",blch they are serve.
"
.': ,
At P. ]L.
for breach Of customs laws; And P. O. SuUivan, Asst. U. S. Atty. W.O. Whitt,' for defendant;' ,' , ,
S.
, HANFoRD,J;:Tbe'defendant w,lts'irldicted at the present term of this court for thecrijhe of conceli.Hng SID1Jggled opium, umier section 3082, Rev. St. Hrlyingentered hilfplea of not guilty to the indictment, the case was broughton for trial, and 'thereupon, when the jury was called, the defendant interposed a challenge to the array on the ground that all the petit jurors in attendance at this term had been drawn and summoned from the nortnerndivision of this district, and not from the district at large. The court having 'denied tDischallenge;' and the jury having been sworn to try the case, the defendant now objects to the introduction of any testimony, on the ground that the indictment is illegal and void upon its !ace,' for that it qoes not purport to have been found by a lawful grand jury. The point of the objection is that the grand jurors were drawn exClusively from the northern division of the district, and they' are desoribed in the indictmE'nt'as"The grand jurora of the United States of America, in and for the northern division oftha district of WashiJlltton. duly impaneled, sworn, and charged to inquire of all offenses against the laws of the United States committed within the northern division of the district of Washingt,on aforesaid." It has been the practice, as the records show,to draw the jurors for each term of court from a jury-boxpl'epared for each division of the district, nameS selected from inhabitants only of that division of the district for which the box is used; and the grand juries at each term have, under the instructions of the court, confined their inquiries to offenses committed within the division,or upon the high seaB outside of the li'rnits of any jUdicial district of the United States. It ib claimed that this' practice is erroneous, and is founded upon a misconstruction of the ,aet 'of congress providing for the terms of the United States circuit 'and district courts in this district. By the act of oongress fixing the times and places or: holding the United States courts in the state of Washington, (26 St.p. 45,) the is declared to eonstitute one judicial district. 'For: the:purpose of holding terms of court, this district is subdivided into f6fi1 divisions. Certain named counties constitute the northern division so denominated in the act,and the eolil'ts'
708
FEDERAL REPORTER,
vol. 44.
for said division are to hold their terms at Seattle. It is perfectlyapparent on the face of the act that its only object is to bring the seat of justice near to the people. In a district so large as this, it would be a grievous burden upon the people to require litigants, jurors, and witnesses to leave their homes and occupations and travel to a remote place in the state to attend the court, as would be necessary in numerous instances if but one place in the state were provided for the sitting of the court. To relieve the people of this burden, the act was passed, and the only possible construction that can be given to it is the one that limits the jurisdiction of the court, when holding a term, to the territorial limits of the division for which that term is provided; and by a necessary implication thegrflud jury summoned to attend each term is a grand jury of the district for that division in and for which the term is held, just as the grand jury is denominated in this indictment. The court can only bring to trial at any term persons accused of committing offenses within the division; and the jurors, grand and petit, should, to accomplish the purpose of this act, be summoned only from that part of the district. Thif:' construction is in harmony with the provisions of section 802 of the Revised Statutes, and with the ancient customs and laws of our parent nation, well as the constitutional guaranties of our own country. At common law, grand juries were convened in each county to attend the sessions of peace, and of oyer and terminer, held therein by the court of klng's bench, and it was a grand jury of the county, and the sessions of court were held for the county, although the court was ordained and established for the entire kingdom. Under the. act of congress, as a ·mere matter of convenience, several counties are grouped together, and a term of court is provided to be held at one place for all, and to answer the same purpose as to each, as if held in each. By analogy to the practice under the common law, the grand jury should be made up of qualified men residing in the division, and when organized it constitutes a grand jury for the division, just as it would be a grand jury for a single county if the term of court were for a single county. There is there/ore nothing to be found in the principles of the common law to support the idea that a United States grand jury in this district must be dr,awn from the body of the district in its entirety, or that it must be denominated a grand jury of the district. There is no statute prescribing such a practice, and, with all due deference ,to the arguments of the learned counRel for the defendant, not a single reason has been suggested why it should be so. On the contrary, it would be utterly unreasonable and absurd to hold that, notwithstanding the manifest purpose of congress in enacting this law, we must still bring men from Spokane county to serve as jurors at Seattle, and. take King county men to serve at Spokane Falls, and have the rights of citizens of 'Tacoma passed upon by men of Seattle; or that this defendant, a Chinaman, cannot have justice meted out to him in.a lawful way without having jurors to try his case brought from In other districts it is often necessary for the expeditious dispatch of businesS to SOO\lre jurors from loealitiesnear the places where the cQurts areheJd.·
UNITED STATES'll. WAN LEE.
709
ThiS mode of procedure is quite common, and is authorized by sectior. 802, Rev. St. I cannot believe that the 'validity of such procedure depends upon the fiction maintained in the record by desclibing the jurors as if they were drawn from the body of the district. The northern district of New York is not subdivided, but terms of court are held at Buffalo, Albany, Rochester, and several other places in the district. I am reliably informed that it is the practice in that district to draw the jurors from the lists of qualified persons prepared for the state courts by county officers, so that the entire panel of jurors to serve for a term may be, and often 'is, composed of men all of whom are residents of a single county; and such juries have not heretofore been supposed to be unconstitutional or illegal, although the truth as to the territory from whence they come has not been covered by even a fiction in the record. All that the defendant can claim as a constitutional right is to have a jury of the district to try his case; that is, a jury every member of which resides within the district. He has no right to insist that every part of the district shall be represented in the make-up of the jury by residents of each place or locality. That would be impossible in any case. The position taken that the act of 1890 was intended only to provide terms of court for the trial of civil cases is in my opinion untenable. The sixth section of the act repeals the only other statute relating to terms of this court, and we are without any law prescribing the times or places of holding terms for the trials of criminal cases, unless the terms provided for by the act of 1890 are general terms, for the transaction of all business of the court. The fourth section prescribes a rule by which to termine the venue of civil cases, and requires all issues of fact in civil causes to be tried in the division where the defendant, or one of several defendants, resides, unless, by consent of both parties, the case shall be removed to some other division. By implication, this section allows civil cases, with the consent of both parties, to be removed from one division for trial in another. I think the effect of this section is merely to fix'a· special rule for civil cases, and that it does not so limit the entire act as to make it applicable only to civil cases. Section 730, Rev. St.; does not affect the question. That section gives the rule by which to locate the jurisdiction in criminal cases where the offenses are committed outside of any district. It would bear upon this case in exactly the same way if all the grand and petit jurors drawn to serve in this court were nominally and really drawn from the body of the district; for, although that section does confer upon the court and the grand jury jurisdiction to deal with criminal offenses committed out of the division in which the court may be at the time in session, it confers the same jurisdiction over offenses committed wholly without the district as well, and it makes no requirement as to the jurors who are to participate in the proceedings in such cases. The allegation of the indictment descriptive of the grand jury as being "sworn and charged to inquire of all offenses against the laws of the United States committed within the northern division of the district of Washington" does not make the grand jury illegal, nor the indictment void. If we assume that a properly constituted grand jury
, nDElU.L nEPORTJilR,
,.would have the wid.estrange of jurisdiction contended for/the offense cbargedagainst this defendant would be within itsjurisdiction; and, if itis .lawful to confine the jurisdiction within the Ii mits described in the indictment, the offense charged would still be within its j urisdiciion. In whatever light we view the case, it is within the jurisdiction of this court, and of such a grand jury as by law should have been organized to pass upon, it. The indictment. is as8aiIed, not because the case is not within the jurisdiction of the court or of the grand jury, but beeause the jllrisdiction conferred by law is broader and more extended than the indictment alleges it to be. But I hold that where a court keeps within bounds, its judicial acts are not void because of its failure to assert all of the jurisdiction given to it by law;. and I hold that the proceedings of the grand juries of this court heretofore organized are not void, even though the court should have erred in so interpreting the law as to reatra.in them from ·inquiring of offenses committed elsewhere in the distriot than within the division from which they were drawn. The authorities; so far as I have Leen able to discover them, do not throw a very clear light upon the subject. From. the opinion of HUGHES in the case of U. S. v. MWltford, 16 Fed. Rep. 164, I infer that it has the practice in the eastern district of Virginia to draw the jurors from the whole district, but to have separate jury-boxes at each of the places of holding court; but the practice of that district cannot guide us in .this, because that district is not cut into divisions by a statute. Although section 572, Rev. St." requires terms to be held at different places in the district, it does not specify that the courts held at either place shall be for certain counties, or for any part of the district. In U. S. v. Bmy, 24 Fed. Rep. 780, Judge KREKEL reached the conclusion that a criminal calle could only be proceeded with in the division of the district wherein the offense was committed. In U. S. v. Chaire8, 40 Fed. Rep. 820, Judges PARDEE and SWAYNE held that a plea to an indictment averring that the names of the persons placed by the jury commisaioner and the in the box were not drawn frum the entire territory within the northern district of Florida, but were drawn from an alleged division of the district, showed no injury or prejudice to the righta of the delimdants, and was. bad in form and substance. Recently, in the case of U. S. v. Diwn"a.nre, 401, Judge HOFFMAN has given a decision which Is directly contrary to the conclusion I have arrived at in this case. While conceding much for the experience and learning of that eminent jurist, I claim that the weight of the authorities tends rather to support than to bear against me in upholding the validity of this indictment.
\.
NATIONAL TYPOGRAPHIC CO. II.
CO.
71'1;
JATIONAL,TtPOGR"APHIC
Co.
t1.
NEW
YORK,TypOGRAPltIC
Co. et ale
(CirctUt oOurt, S. D. New York. December 29,1890.) L FJIl:[lERAI, CoURTs-JUBISDICTION-CITIZENSHIP. ", ' , " Under Act Cong; March 3, 1887, providing thatn08uit shall be brought in the!edera! coui"ts in a district .other than . t hat of defendan t'fil ... the cirquit court . will decline jurlsdictioQ, of a suit against a corporation createa in a state other than that in which the court is sitting. Following FilU v. RaUway Co.J.87 'Fed. Rep. 65; Booth v. Man'lifaeturing GO., 40 Fed. Rep. 1; v. Murray,.48 l"ed. 9. S J . 1 4 B - P R A C T I O E . " . A motion to set aside service of process because otdefendant'snon-residence will not be granted where his residence.is in dispute, and there has been no opportunity to cross-examine him as to his statements aflldavit on whicll.1Jle. mo, tiOD is based.
MVers
On Motion to Set .Aside Service of Process. '. Act Congo March'3; 1887, provides, inter !alia, that no suit .shall be brought in the federal circuit and district cohrts in a district other than that of defendant's residence. . " Betta, Auerbury, Hyde & Betta, for Kerr & Curtia, for defendants Hall and !
LACOMBE, CircoifJudge. After a careful perusal of the very able briefs Bubmittedohboth sides" and au examination of the decisions which have been reriaered in the circuit courts since the passage of the actO! 1887, I have reached the conclusion to abide by the rule laId down' in this circuit in FiUi v. Railway 00., 3T Fed. and in the eighth' circuit,in Booth v. Manufacturing Co., 40 1, and Myer8 ray,· 43, Fed. Rep. 695, rather than follow the one adopted in the fifth cire.liit in Zarnlrdiio V. Railway Co., 38 Fed. Rep. 449, and in the third circuit in Riddle v. Ra:ilroad Co., 39 Fed. Rep. 290. It is uI,lnecessar1 to. ada anything to .the discussion of the in the various case/il above cited. In view of the language of the supreme court inlfuntrance v,· .Ftp,nci8, 11 Wall. 210j EX parte 96 U. S. 377; Rail: road Co. v. Koontz, 104U. S. 5.; ,and Goodlett v: Railroad Co., 122 U.S. 391,7 Sup. Ct. Rep. 1.254,-the safe rule for the circuit courts seems to be todecliue jul;isdiction in cases such as this.,' T\le Illotion to set aside service of process is a:s to the allt the New York TypographicOompany, apd the other defendants Starring and Hall. As to the latter, it is'dl'lnied. Hall is conced: edly aiesident of the district, and the raised on hisbehal{ decided on this motion; As Starz;ing, the question. of resis in dispute,and the motion should :oot be granted where there hfUj ,been IlO opportunity to cross-examine n,im as to the statements in his affidavit. As tathe other defendants, non-residence was praO: ticalJ.1conceded on the argument. . . " .-r
712
vol 44.
LAIRD V. INDEMNITY MUT. MARINE ASBUR. (Oircuit Court, S. D. New York.
December 29, 1890.)
F.BDERAL COURTS-JURISDI.CTION-SUITS BY ASSIGNEE.
An action to recover on an insurance policy, and to reform the same, \s an action "to recover the contents of a chose in acttOn," within the meaning of Act Congo March 3, 1887, providing that the federal courts shall not take cognizance of such actions when brought by an assignee, unless such suit could have been prosecuted in such courts if no assignment had been made; and, where both plaintiff's assignor and defendant are aliens, and no federal question is involved, the circuit court will decline jurisdiction.
On Motion to Remand to State Court. Act Congo March 3, 1887, provides, inter alia, that the circuit and district courts shall not take cognizance of actions "to recover the contents * * of any chose in action :in favor of any assignee," unless such t;lOllrts would have had jurisdiction of such actions belore the assignment was made. Carpenter « Mosher, for plaintiff. Butler, StiUman & Hubbard, for defendant. LACOMBE, Circuit Judge. This is an action to recover upon a contract of reinsurance, and for reformation of the policy, if necessary. It is therefore an action "to recover the contents of a chose in action." Shoecraft v. Bloxham, 124 U. S. 730,8 Sup. Ct. Rep. 686. The plaintiff is an assignee of the chose in action, and as, under the authorities, he is Dot within the exception of the first section of the act of 1887, this court can have no cognizance of his suit thereon, unless such suit might have lJeen prosecuted here if no assignment had been made. Simons v. Papet' Cb., 33 Fed. Rep. 193; Newgass V. New Orleans, 33 Fed. Rep. 196; RoUins v. OhatJee Co., 34 Fed. Rep. 91; Wilson v. Knox Co., 43 Fed. Rep. 481. His assignor is an alien corporation, and so is the defendant. No federal question is involved, and the suit couId not have been prosecuted inthis court between the original parties to the contract upon any theory of diverse citizenship, as neither of them is a citizen of any state of the federal Union. Hepburn V. Ellzey, 2 Cranch, 446; Rateau v. Bernard, 3 Blatchf. 244. Under the act of 1875 it was held that the restriction applicable' to original suits by assignees was not applicable in cases brought originally in the state courts, and removed thence to 11 fedeml court. Claflin V. Insurance Co., 110 U. S. 81, 3 Sup. Ct. Rep: 507; lWsenbaum V. Insurance CV., 37 Fed. Rep. 724. This was upon the ground that "the exception out of the jurisdiction, as to suits begun in the circuit courts, contained in the [first section,] did not by its terms, Qor by the immediate contex.t, apply to suits begun in the state court'l, and afterwards removed to the circuit courts." Under the aCt of 1887, (1888,) however, the second section of which providesf6r removal of causes when a federal question is not involved, and when no prejudice or local influence appear, is specially restricted to suits "of which the circuit courts of the United States are given jurisdiction by the preced-