Butterfield v. Home Insurance Co.

By the Court.

MoMillajst, J.

-This is an appeal from an order denying the petition of the defendant for a removal of the suit from, the State Court to the Circuit Court of the United States.

The petition is framed under and the application is based upon Section 12, of the Act of Congress entitled “ An Act to establish the Judicial Courts of the United States,” approved September 24th, 1789. U. S. Stat., at large, p. 79. The petition sets forth facts which show a compliance with the requirements of Sec. 12, of the Act of 1789, and if that "section is still in force and unchanged, entitled the defendant to a removal of the suit as prayed for.

But it is claimed by the respondent that section 12 of the Act of 1789, has been amended and changed by subsequent Acts of Congress, and that the petition upon which the application for the removal of the suit is based, does not comply with the requirements of the Act as amended. -The Act approved July 27th, 1866, 14 Stat., at large, c. 228, p. 306-7, and the Act approved March 2, 1867, 14 Ib., c. 196, pp. 558-9, are relied upon as amending and changing the Act of 1789.

The correctness of this position is the question presented in this case. All these acts relate to the removal of actions from State Courts to the Federal Courts. Section 12 of the Act of 1789, embraces suits against an alien, and suits by a citizen of the State in which the suit is brought, against a citizen of another State when the matter in dispute exceeds five hundred dollars exclusive of costs — together with another class of actions to which particular reference is not necessary at this time — and permits a removal of the action from the State Court to the Federal Court, upon the petition of the defendant, but requires the application to be made at the time of entering his appearance in the State Court. The Act of 1866 provides that if a citizen of the State in which the action is brought, is a defendant in an action in any State Court against an alien, or in an action in any State Court by a citizen of the State in which the suit is brought, against a citizen of another State, and the matter in dispute exceeds five hundred dollars exclusive of costs, if the suit so far as relates to the alien defendant, or the defendant who is a citizen of another State, is instituted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants, as parties in the cause, such alien - defendant, or such defendant citizen of another State than that in which the action is brought, may at any time before the trial-or final hearing of the cause, file a petition for the removal of the cause, as against him, into the next Circuit Court of the United States, &c., and permits the plaintiff to proceed at the same time with the suit in the State Court against the other defendants.

The Act of 1867 embraces actions in a State Court “ in which there is a controversy between a citizen of the State in which the action is brought, and a citizen of another State ”, and provides that such citizen of another State, whether he beplaimt/iff or defendant, if he will make and file in such State Court an affidavit, stating that he has reason to and does believe that from prejudice or local influence he will not be able to obtain justice in such State Court, may at any time before the final hearing or trial of the suit, file a petition in such State Court for the removal of the suit into the next Circuit Court of the United States,” &c.

It will be seen from this analysis of these Acts of Congress, that the Act of 1866, provides for the removal of a class of actions in a State Court, distinct from those embraced in Section 12 of the Act of 1789, and the terms prescribed for the removal of actions under the Act of 1866, are less restricted than those limited by the Act of 1789. There is, therefore, no conflict between these two acts; on the contrary the evident intention of the Act of 1866, was to extend the class of cases in which a removal might be applied for by a defendant, and the time within which such application could be made, beyond the Act of 1789.

It remains for us to consider the effect of the Act of 1867. This Act is in terms an amendment of the Act of 1866 ; but it does not expressly repeal either the Act of 1866 or Section 12 of the Act of 1789. It is true, the Act of 1789 embraces in its provisions cases in which the defendant is not a resident of the State in which the suit is brought, and that the Act of 1867 includes cases of that character also, but the ground for the removal df the action to the Federal Court prescribed by the Act of 1789, is the residence of the defendant in another State than that in which the action is brought, while the ground for such removal under the act of 1867, is that the defendant has good reason to, and does believe, that from prejudice, or local influence, he will not be able to obtain justice in the State Court. There is nothing in these grounds for removal which creates any conflict between them; they are of a distinct and separate nature, and may both exist together. This being the case, it is competent for Congress to prescribe the time at which the application for removal upon these grounds shall be made by-the defendant.

We see no reason why it is not altogether proper to limit the defendant in making his application for removal under the act of 1789, to the time of his appearance in the action, and at the same time permit him to make his application under the act of 1867, at any time before the final hearing or trial of the cause ; on the contrary, there would seem to be sufficient reason for this distinction. One great object in the establishment of courts of the United States, and regulating their jurisdiction, was to have a tribunal in each State, to which all who were non-residents, and aliens, might resort for legal redress. 16 Pet., 97.

The plaintiff, in cases within the jurisdiction of both the federal and state courts, without further legislation, would have his election to proceed in either court. But as a defendant has not the choice of the tribunal in which he .will be sued, some special provision was necessary to secure, to him in such cases, in a suit brought in a state court, the benefit of an election between the State and Federal tribunal; Section 12 of the Judiciary Act was passed, doubtless, for this purpose. But as his election, upon the ground of his residence in another State, should be made at the earliest practicable opportunity, it was altogether proper that the defendant should be required to do so at the time of appearing in the action in the State court. The ground for removal prescribed by the act of 1887 is based, not upon a legal presumption arising from the nature of the tribunal in which the suit is brought, or of that to which it is sought to be removed, nor from the residence of the defendant in another state than that in which the suit is pending, but upon the existence of a state of facts which would actually prevent the impartial administration of justice in the State court.

It will readily suggest itself, that such facts may not exist at the time the defendant is required to appear in the action, or, if in existence, that the defendant, non-resident, may have no knowledge whatever of their existence at that time ; in addition to this there may be no practical danger of injury before the final hearing, or trial of the cause. There would . seem, therefore, to be no substantial reason why the defendant, in such case, should be required to make his application at an earlier stage of the proceedings, than that specified in the act of Congress. ¥e see nothing therefore in either of these acts which bring them in conflict with, or render them repugnant to each other. In determining whether it was intended to repeal section 12 of the act of 1789, by the. act of 1867, it may also be considered, that the former act was passed at the foundation of the Federal Government, and has ever since been recognized by the courts ; that the act of 1866 was an extension of the right secured to defendants by the former act, and that the act of 1867, in permitting a removal of the actions embraced in it, by either the plaintiff or defendant if a resident of another State than that in which the suit is brought, confers upon the plaintiff a privilege not previously enjoyed by him.

These facts, in the absence of a manifest conflict between the acts, tend to show a positive intention on the part of Congress to extend rather than limit the right of defendants under the judiciary act. But neither the act of 1866 or 1867 expressly repeal the act of 1789 ; if it is repealed it must be by implication.

The rule is well settled that repeals of this character are not favored, and unless the latter statute is clearly in conflict with, and repugnant to the prior one, or if they may subsist together, both remain in force. Sedgwick on Stat. and Const. Laws, 127-8. While we are clearly of opinion that these statutes are in entire harmony with each other, yet if there were doubt in regard to it, under this rule, they must be sustained. We think Sec. 12 of the Act of 1789 is not repealed or changed by the subsequent acts referred to, and the defendant having complied with its requirements in his application, was entitled to a removal of the action from the State to the Federal Court.

The order denying the petition for removal of the action is reversed.