The power which this Court had before the passage of the Act of
March 3, 1887, 24 Stat. 552, c. 373 (reenacted August 13, 1888, 25
Stat. 433, c. 866), to afford a remedy by mandamus when a cause,
removed from a state court is improperly remanded to the state
court, was taken away by those acts.
Under the Act of March 3, 1887, 24 Stat. 552, c. 373, and the
Act of August 13, 1888, 25 Stat. 433, c. 866, the matter in dispute
in a case removed from a state court on the ground of prejudice or
local influence must exceed the sum of two thousand dollars in
order that the circuit court may take jurisdiction.
Since the passage of those statutes, when a cause is removed
from a state court on the ground of prejudice or local influence,
the circuit court must be legally satisfied, by proof suitable to
the nature of the case, of the truth of the allegation that by
reason of those causes the defendant will not be able to obtain
justice in the state court, the amount and manner of such proof
being left in each case to the discretion of the court.
This was a petition for mandamus to the judges of the Circuit
Court of the United States for the District of Connecticut to take
jurisdiction of the suit of Alberto T. Roraback against the
petitioner. The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is a petition of the Pennsylvania Company, a corporation
and a citizen of Pennsylvania, for a mandamus to be directed to the
judges of the Circuit Court of the United States for the District
of Connecticut commanding them to
Page 137 U. S. 452
reinstate, take jurisdiction of, and try and adjudge a certain
suit of one Alberto T. Roraback, a citizen of Connecticut, against
the said Pennsylvania Company. The suit had been commenced on the
4th of June, 1889, by writ returnable the first Monday of July,
1889, in the Court of Common Pleas for Litchfield County, in the
State of Connecticut. The demand in said suit was for the sum of
five hundred dollars. In the term of March, 1890, of said court of
common pleas, the company filed a petition for the removal of the
suit to the United States Circuit Court for the District of
Connecticut on the ground of prejudice and local influence, filing
therewith proper affidavit and bond, and the said court accepted
said petition and bond and granted the application, and ordered the
suit to be removed. On the opening of the circuit court of the
United States in April, the company entered in said circuit court a
copy of the record, and also filed a petition to the same court
reciting the steps already taken, realleging the ground of removal,
and praying the court to take jurisdiction of the suit, and filed
an additional affidavit setting forth all the facts as to the
existence of the alleged prejudice and local influence in the state
court, and that the petitioner would not be able to obtain justice
therein. But afterwards the plaintiff in the suit moved to remand
the same to the state court on the ground that the amount in
dispute did not exceed the sum of $2,000, exclusive of interest and
costs. The circuit judge granted the application and made an order
for remanding the cause, and the circuit court refuses to take
jurisdiction of the same. 42 F. 420. Wherefore the present mandamus
is prayed.
The first question to be decided is whether this Court has power
to grant the writ applied for. The general power of the court to
issue a writ of mandamus to an inferior court to take jurisdiction
of a cause when it refuses to do so is settled by a long train of
decisions.
Ex Parte
Bradstreet, 7 Pet. 634;
Life &
Fire Ins. Co. v. Wilson, 8 Pet. 291;
United States v.
Gomez, 3 Wall. 752;
Ex Parte
Roberts, 15 Wall. 384;
Ex Parte
United States, 16 Wall. 699,
83 U. S. 702;
Ins. Co. v.
Comstock, 16 Wall. 258,
83 U. S. 271;
Railroad Co. v.
Wiswall, 23 Wall. 507;
Ex
Page 137 U. S. 453
Parte Schollenberger, 96 U. S. 369;
Harrington v. Haller, 111 U. S. 796;
Ex Parte Brown, 116 U. S. 401;
Ex Parte Parker, 120 U. S. 737;
Ex Parte Hollon Parker, 131 U. S. 221.
It is true that after a case has proceeded to the filing of a
declaration and a plea to the jurisdiction or its equivalent and a
judgment is rendered in favor of the plea and a consequent
dismissal of the action, this Court had held that the plaintiff is
confined to his remedy by writ of error, and cannot have a
mandamus, which only lies, as a general rule, where there is no
other adequate remedy.
Ex Parte Balt. & Ohio Railroad,
108 U. S. 566;
Ex Parte Railway Co., 103 U. S. 794. But
it was expressly held in
Railroad Co. v.
Wiswall, 23 Wall. 507, that a mandamus would lie to
compel a circuit court to take jurisdiction of and proceed with a
case which it had wrongfully remanded to the state court. The
reason was that an order to remand was not a final judgment, and no
writ of error would lie. This case is supported by the rule laid
down by Chief Justice Marshall in
Ex Parte
Bradstreet, 7 Pet. 634, and if the decision of the
present case depended only on the general rule, the power of the
court to issue the mandamus would be undoubted.
But in our opinion the matter is governed by statute. This will
be manifest by reference to previous legislation on the subject.
The fifth section of the Act of March 3, 1875 (determining the
jurisdiction of the circuit courts), provided that the order of the
circuit court dismissing or remanding a cause to the state court
should be reviewable by the Supreme Court on writ of error or
appeal, as the case might be. 18 Stat. 470, 472. This act remained
in force until the passage of the Act of March 3, 1887, by which it
was superseded, and the writ of error or appeal upon orders to
remand causes to the state courts was abrogated. The provision of
the act of 1887 is as follows:
"Whenever any cause shall be removed from any state court into
any circuit court of the United States and the circuit court shall
decide that the cause was improperly removed and order the same to
be remanded to the state court from whence it came,
such remand
shall be immediately carried into execution, and no appeal or
writ of
Page 137 U. S. 454
error from the decision of the circuit court so remanding such
cause shall be allowed."
24 Stat. c. 373, 552-553. This statute was reenacted August 13,
1888, for the purpose of correcting some mistakes in the
enrollment, 25 Stat. 435, but the above clause remained without
change. In terms it only abolishes appeals and writs of error, it
is true, and does not mention writs of mandamus, and it is
unquestionably a general rule that the abrogation of one remedy
does not affect another. But in this case we think it was the
intention of Congress to make the judgment of the circuit court
remanding a cause to the state court final and conclusive. The
general object of the act is to contract the jurisdiction of the
federal courts. The abrogation of the writ of error and appeal
would have had little effect in putting an end to the question of
removal if the writ of mandamus could still have been sued out in
this Court. It is true that the general supervisory power of this
Court over inferior jurisdictions is of great moment in a public
point of view, and should not upon light grounds be deemed to be
taken away in any case. Still, although the writ of mandamus is not
mentioned in the section, yet the use of the words "such remand
shall be immediately carried into execution," in addition to the
prohibition of appeal and writ of error, is strongly indicative of
an intent to suppress further prolongation of the controversy by
whatever process. We are therefore of opinion that the act has the
effect of taking away the remedy by mandamus as well as that of
appeal and writ of error.
We also agree with the circuit judge that by the act of 1887,
the matter in dispute must exceed the sum or value of two thousand
dollars in order to give the circuit court jurisdiction, as well in
cases sought to be removed from a state court on account of
prejudice or local influence as in other cases. It is true that the
clause allowing a removal for such cause does not name any amount
as requisite. But we should bear in mind the history of the law,
and read the whole of the two sections together. The act of 1867,
which first gave the right of removal for cause of prejudice and
local influence at any time before the final hearing of the
case,
Page 137 U. S. 455
required that the matter in dispute should exceed the sum or
value of five hundred dollars, which was the amount then required
for the jurisdiction of the circuit court in all ordinary cases,
whether by original process or by removal from a state court --
that is, in all cases except those in which jurisdiction was given
independently of the amount in controversy. 14 Stat. 558. This
statute was carried into section 639 of the Revised Statutes,
article "Third". Now as the act of 1887 raises the jurisdictional
limit prescribed for the circuit courts in ordinary cases to an
amount exceeding the sum or value of two thousand dollars (instead
of five hundred dollars), we naturally expect to find the same
amount required for its jurisdiction in cases of removal for cause
of prejudice or local influence. The first section requires that
amount in ordinary actions for its original jurisdiction. The
second section requires the same amount in ordinary cases removed
from a state court. Its language is as follows:
"SEC. 2. [I.] That any suit of a civil nature at law or in
equity arising under the Constitution or laws of the United States,
or treaties made, or which shall be made, under their authority, of
which the circuit courts of the United States are given original
jurisdiction by the preceding section, which may now be pending, or
which may hereafter be brought, in any state court, may be removed
by the defendant or defendants therein to the Circuit Court of the
United States for the proper district. [II.] Any other suit of a
civil nature at law or in equity, of which the circuit courts of
the United States are given jurisdiction by the preceding section,
and which are now pending, or which may hereafter be brought, in
any state court, may be removed into the circuit court of the
United States for the proper district by the defendant or
defendants therein, being nonresidents of that state. [III.] And
when in any suit mentioned in this section, there shall be a
controversy which is wholly between citizens of different states
and which can be fully determined as between them, then either one
or more of the defendants actually interested in such controversy
may remove said suit into the circuit court of the United States
for the proper district. [IV.] And where a suit is now
Page 137 U. S. 456
pending, or may be hereafter brought, in any state court, in
which there is a controversy between a citizen of the state in
which the suit is brought and a citizen of another state, any
defendant, being such citizen of another state, may remove such
suit into the circuit court of the United States for the proper
district at any time before the trial thereof, when it shall be
made to appear to said circuit court that from prejudice or local
influence he will not be able to obtain justice in such state
court, or in any other state court to which the said defendant may,
under the laws of the state, have the right, on account of such
prejudice or local influence, to remove said cause."
Here the first two clauses expressly require an amount exceeding
two thousand dollars. The third clause, in referring to "any suit
mentioned in this section," evidently means the two first clauses
of the section, and of course is limited to cases in which the
matter in dispute exceeds two thousand dollars. The fourth clause
(the one in question) describes only a special case comprised in
the preceding clauses. The initial words "And where" are equivalent
to the phrase "And when in any such case." In effect, they are
tantamount to the beginning words of the third clause, namely, "And
when in any suit mentioned in this section." On this point, the
circuit judge refers to an opinion of MR. JUSTICE HARLAN in the
case of
Malone v. Richmond & Danville Railroad, 35 F.
625, which seems to us to express the correct view of the law. It
is true, other judges have taken a different view; but, on a
careful consideration of the subject, we have come to the
conclusion above expressed.
There is another question raised in this case on which it is
proper that we should express our opinion. It arises upon the
following words of the act: "
When it shall be made to appear to
said circuit court that from prejudice," etc.
How must it
be made to appear that from prejudice or local influence the
defendant will not be able to obtain justice in the state court?
The act of 1867 only required an affidavit of the party that he had
reason to believe that from prejudice or local influence he would
not be able to obtain justice in the state court. Rev.Stat.
Page 137 U. S. 457
ยง 639, Subdiv. Third. By the act of 1887, it must be made
to
appear to the court. On this point also various opinions have
been expressed in the circuit courts. Our opinion is that the
circuit court must be legally (not merely morally) satisfied of the
truth of the allegation that, from prejudice or local influence,
the defendant will not be able to obtain justice in the state
court. Legal satisfaction requires some proof suitable to the
nature of the case at least an affidavit of a credible person, and
a statement of facts in such affidavit which sufficiently evince
the truth of the allegation. The amount and manner of proof
required in each case must be left to the discretion of the court
itself. A perfunctory showing by a formal affidavit of mere belief
will not be sufficient. If the petition for removal states the
facts upon which the allegation is founded, and that petition be
verified by affidavit of a person or persons in whom the court has
confidence, this may be regarded as
prima facie proof
sufficient to satisfy the conscience of the court. If more should
be required by the court, more should be offered.
In view of these considerations, we are disposed to think that
the proof of prejudice and local influence in this case was not
such as the circuit court was bound to regard as satisfactory. The
only proof offered was contained in the affidavit of the general
manager of the defendant corporation to the effect that, from
prejudice and local influence, the company would not be able to
obtain justice in the Court of Common Pleas for Litchfield County,
or any other state court to which, etc. We do not say that, as a
matter of law, this affidavit was not sufficient, but only that the
court was not bound to regard it so, and might well have regarded
it as not sufficient.
The petition for mandamus is denied.