Where the circuit court has jurisdiction to determine questions
presented on a motion to remand a case to the state court and
denies the motion, mandamus will not lie to compel it to remand the
case.
In re Pollitz, 206 U. S. 323.
In this case, diverse citizenship existed, but plaintiff moved
to remand because the suit was not of a civil nature, but for a
penalty, because the record did not show that plaintiff or
defendant resided in the district to which removal was sought, and
because defendant did not specifically pray for removal of cause;
held that the circuit court had jurisdiction to determine
whether the case was removable, and that mandamus would not lie to
compel the Circuit Judge to remand the cause.
The facts are stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Gruetter brought an action in the Circuit Court of Franklin
County, Tennessee, against the Cumberland Telephone & Telegraph
Company to recover $20,000 for violation of § 2 of chap. 66 of the
Acts of 1885, which is § 1842 of Shannon's Code of Tennessee, for
the unjust discrimination by defendant against plaintiff, set up in
the declaration. The section is as follows:
"Every telephone company doing business within this
Page 217 U. S. 587
state, and engaged in a general telephone business, shall supply
all applicants for telephone connection and facilities without
discrimination or partiality, provided such applicants comply, or
offer to comply, with the reasonable regulations of the company,
and no such company shall impose any condition or restriction upon
any such applicant that are not imposed impartially upon all
persons or companies in like situations, nor shall such company
discriminate against any individual or company in lawful business
by requiring, as condition for furnishing such facilities, that
they shall not be used in the business of the applicant or
otherwise, under penalty of $100 for each day such company
continues such discrimination and refuses such facilities after
compliance, or offer to comply, with the reasonable regulations,
and time to furnish the same has elapsed, to be recovered by the
applicant whose application is so neglected or refused."
Defendant filed a petition to remove the case to the Circuit
Court of the United States for the Middle Division of the Middle
District of Tennessee, to which plaintiff demurred on the ground
that it was an action to recover a penalty, and therefore was not
removable. The demurrer was heard by the circuit judge, who
sustained it, dismissed the petition, and refused to remove the
case. Defendant obtained a certified copy of the record, and filed
the same in the Circuit Court of the United States for the Sixth
Circuit, and plaintiff moved to remand the case because it was a
suit to recover a penalty and the action was not of a civil nature;
because the petition and record did not show that the suit was
sought to be removed to the circuit court of the United States for
the district in which either the plaintiff or the defendant
resided, and because the defendant did not specifically pray for
the removal of the cause.
The circuit court, upon hearing, filed a memorandum opinion
considering and overruling all of the grounds
Page 217 U. S. 588
presented to sustain the motion, and denied the motion to
remand, whereupon Gruetter filed a petition for writ of mandamus
directing the district judge of the United States for the Middle
Division of the Middle District of Tennessee, holding the circuit
court for that division, to remand the suit to the Circuit Court of
Franklin County, State of Tennessee. Leave to file this petition
was granted and a rule to show cause was thereon entered, to which
the judge filed his return, stating that the motion of plaintiff to
remand was denied for the reason that, in respondent's opinion, the
several grounds of the petitioner's motion were not well founded in
law, and that, under the facts and pleadings presented by the
record, the Circuit Court of the United States for the Middle
District of Tennessee, sitting at Nashville, had jurisdiction of
said cause.
There was no controversy as to there being diversity of
citizenship. The defendant was a corporation of Kentucky and
plaintiff was a citizen of Tennessee. Inasmuch as we are of opinion
that the circuit court of the United States had jurisdiction to
determine the questions presented, we hold that mandamus will not
lie. The final order of the circuit court cannot be reviewed on
this writ.
In re Pollitz, 206 U.
S. 323.
Rule discharged and petition dismissed.