KINNICK II. UNION INS.

co.

869

M)NNICK 11. UNION

INS. Co.

(Ctrc1tft CouTt, W. D. Michigan, 8. D. November 26,1880.)

L

REMOVAL OJ' CAUSES-LoOAL PRJlJUDIOE-REPEAL OJ!' STATUTE.

Rev. St. U. S. § 639, subel. 8, providing for the removal of suits between ott!zens of different states from state to federal courts, on the flling of an affidavit in the state court stating that affiant "has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court, "is repealed by the. removal act of March 8, Ib87, which repeals all ing laws, and section 2 of which p_'ovides for a removal of such causes into the federal circuit court by defendant, "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, " etc. An aftldavit, flIed in the federal circuit court, stating that affiant "has reason to believe, and does believe, " that· defendant will not be able to obtain justice in the state court, is not sufficient evidence of that fact to warrant a removal under the later statute. 1

.. SAME.

At Law. On motion to remand to state court. Rev. St. U. S. § 639, subd. 3, provides for the removal of suits between citizens of different states from state to federal courts, on the filing of an affidavit in the state court stating that affiant "has reason to believe, arid' does believe, that, from or local influence, he Rot be able to obtain justice in such state court." Act March 3, 1887, § 2, cl. 4, provides for a removal qf such causes into the federal circuit court, by defendant, "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," etc. Chaddock « Sullivan, for plaintiff. Norris «NorriB, for defendant. SEVERENS, J. This is an action at law, heretofore pending in thecircuit court of the state for the county of Muskegon; being a consolidation of two causes in that court, in which suits were brought upon two policies of insurance. An application was made to this court by the defendant, after issue joined, but before trial, for an order of removal from the of prejudice and local instate court into this court, upon the fluence. The petition of the defendant and supporting affidavit set forth the pendency of the suit, and the affidavit, which was made by a special agent of the company, alleged that the affiant had good reason to believe, and did believe, that, from prejudice and local influence, the defendant would not be able to obtain justice in the state courts. It was not shown by the petition or affidavit what sum was in controversy, but it appears from the transcript filed in this court that it was about 8500. The order for removal was made by me':' upon the supposed authority of Whelanv. Railroad Co., 35 Fed. Rep. 849. A motion to remand to
1 For a disoussion of how prejudice or local influence may be "made to appear" under the act of 1887, see Co., 35 Fed. Rep. 625, and SoutJ}wortb v. Reld, 86 Fed. Rep. 451, HuskinS v,. Rallway 117 Fed. Rep. 504, Denmson V. Brown, 38 Fed. Rep: 535 ; Amy v. MannlUg, Ill. 586,l:l'jlS; Goldworthy v. Railway ··.1d. 769; Hakes V. Burns, 40 Fed. Rep. 83. ·Not reported.

v.40F.no.8-24

the state couri is now ma8e by the attorneys for the plaintiff, upon sevimportant pf are-First, that there was eral grounds,-the no sufficient evidence exhibited to the court to make it appear that from prejudice 'arid' local the defendant cbuld" not obtain justice in the state courtj and, 8econd,that it was nQt show:n that a sufficient.amo,unt was involved to entitle the defendant to Ii removal. It is also further ,urged that a removal made upon an ez parte ap,plication,heard withoutu()tice, nor upon the bare general allegation of .the patty, or,bis agent, tQat such prejudice or local influence exists as to, prevent, the obtaining ofjustice. But I am concluded, in respect to these lilst ground's, by the decision of the circuit judge of this circuit, and the district judge, who concurred with him, in the case of WMlan y. If4uroad, Co., above referred to. Up0n the, <lccasion ofthemakirigof the order for removal, a somewhat ('ursory reference was made by me to the opinion of Judge JACKSON in the Whelan OaBe, and I that he expressed his concurrence in the op.inio,n;Qf J \ldge PEArlY,. in Fi8k v. Henarie. 32 Fed. Rep. 417421, thatitqe,cll!-use following ll\lbdivision3, Rev. St., providing for the of removal, of causes. on account.of prejudice, etc., was not.re,. pealed by the of 2 of the Act of Mar«;:h 3, 18'S?, removals for and I also observed tha,t in hIs "nalysis of tqe difi'ering.partlcula,rs in the,old and the new law ,Judge noted,at Page 854. 35 FeQ. that in new law no : concj.itioi) of, removal. Judge DEAPYheld, in substance, in Fi8k v. i'Ienarie, that the ,clause of the old law providing the method of removal was not repealed, and, being left operative by the new law, supplied the mode of when the right of removal was given by the clause of section 2 in the later act, relating to this Qlass,ofcasesjandthe judge, 11,1 the Whelan (4Be, referring to that ,his CQllcurr.Cij.c.Je, Jf I felt. sure tha.t Judge JACKSON founded his decisionJu; that case,upon it would be , my duty to hold accc;>rdinglynowjbut anexamiQation.ofthat ca,seshows ,that the,remo"al was sustainable, and was sustained, upon .f\nother ground. . The defendant hf\.Q made and filed in the statecQurt its applicatlGniJ), t1:lemannerprcscribEld by: .theold law in· cases of preju,Qice and locl\l. the affidavit being that the petitioner "had,reaaon tOJ;l6.. .and didbelieve,','t1:lat on account thereof the obmin justice, etc. Apcl.it was in refere,pce to that application that ,.Judge alludcfI tQJudge DEADY'Sopinioll . But it furt,b,ertJ.p, ,pear.sthat thedefend.ant. distincttJ.pplication for removal, addressed, to the federal cou,rt,Jn the auppo.rted " by aI)., a,t'fidavit statiUg iJ,1direct. terms thtJ.t such .prejudice, etc., existed j ,'JUld lam .satisfied :thAt JJ.l«ge JA,cKsQN:,intenp,ed to put the. stress of his holding upon that ground, and that to that extent only is the decision -'conclusive..;. '., . ' .... . I . . . ' . : \It is extremely Jor. metothhlk tha.t. the. provisions . i 'inoval"ifithis' alaS!! bf· ca:ses contained' following subdivision 3, § 639, Rev. St., are not repealed by tne provisions in section 2 <ofthe

811
new act, under the operation of the repeal of conflicting laws contained for the old Jaw in' referin section 6 of that act. It seems with the eXprf;J8S of the new As ence to pointed out by Judge JACKSON at page 854, 35 Fed. Rep., in his comold law required that the parison of the differences, should be'taoddressedtdthe state court. Under the new act, it must be applied for totbe circu$t court, which acts upon the application." Under the old law, upon the filing of the proper petition and bond in the state court, jurisdiction in that court ceased,and was transferred to the circuit court, iP80 jaw. .The circuit court was passive, and got jurisdicbrought into it. Under the new law,tbe circuit tion by the receives and entertains the application, and acquires juriscourt diction by .its own machinery. It appears to me that these two .methods are inconsistent and conflicting; and I cannot help thinking the old law '.,.. '.. . If, then, the old provision for the method ofremoval is repealed, how is it to be "made to appear" to the circuit court that the case is one properfor removal? So far as known to me, it has never been held that, except by the warrant of the provision in the clause in the former statute, above referred to, an allegation of the fact of prejudice, etc., like the one in this affidavit, would be sufficient. By all analogies, it seems necessary 1K> that the fact should be made to appear by evidence which is by legal rule regarded as competent. By this test, it a.ppears to me that it is not properly shown by the allegation that a party has good reason to believe, and does believe, that the fact is so. Sucha. staternentis not competent evidence. True, congress may accept the sworn faith of the party as sufficient ground for removal, by an express deClaration to that elfect, as was done in the former law. But, without -such declaration, it a.ppearsto me that the fact must be shown by legal evidence, and that if, as the circuit judge holds, it may be shown by a direct and positive averment of its existence_, it is the least· that could be regarded as sufficient. If the allegation is not controvertible, .it makes. itull the morenectissary to attend to the argument from inconvenience in allowing· such great facility in bringing cases into the federaI·courts under this dauseof the statute. This argument from inconvenience could not prevail against plttin language; but,when the statute is open to construction, it is of considerable weight. Broom, Leg. Max. 184. Thus, a more careful and mature consideration of the subject leads me to think, contrary to what seemed necessary when the order of removal was made; that the existenoe of prejudice and local influence was 110t made to appear by e\7idencecompetent to prove the fact, and that, therefore, the case should be remanded. It is not 'necessary to paSs upon the question whether the amount involved il!l sufficient to warran-ta removal. That is one of the many nnsettled points:arising on thisjurisdictional act which have given the judges so great a burden of difficulty tlIld doubt. Let I1n order be enteredremanding the case to the circuit court for the county of Muskegon. There "iROO' no 008tS on the motion. · : -:

nDERAL REroRTJ:R,

vol. 40.

In ,.,

FBDBRAL COtIRTB-JURISDJOTION-"No

JACKSON.

, (O-trC'wtt Court, D. KansaB. November 28, 1889.)
The Indian Territory is defined by Aat Congo June 80,1884, (4 St. at Lal'g8, '729 ) u
LAND.·

isians, and Arkansas, and all east of the river, and not within any state to whic'b the JJ!,dian title has not yet been extinguished. The tract of land known as "No Man's Land" was not then a part of the United States, and many treaties and acts of congress passed afterwards, by implication at least,locate the western boundary of tbe !ndian Territory at the looth meridian, which is the eastern boundary of "No Man's Land." !nothers, this tract isolearly, or by implication, recognized asa part of the territory. Act Congo 1889, (25 St. at 783,) established a United States court with jurisdiction extending over the Indlan Territory bounded so as to include. "No Man's Land." Section 17 attachea to the eastern district of Texas all of the Indian Territory not otherwise assigned, which included this land, if it was a part 01 the'territory. Held, that the jurisdiction of the United States court for the eastern district of Texas over this tract of land was sufficiently clear to grallt a removal to the state of Texas of one indicted by that court fora crime committed ill "NO l\!lan's LaJ;ld," and l!orr8sted in another state.

all that part of the United States west 01 the Mississippi, and not in Missouri,

Applieation for Habeas Corpua. J. W.Ady and P. L. Soper, for the United States. HaheU Hwme and E. Hagan, for petitioner. BREWER, C. J. In the case E'J! parte Jackson, the facts are these: The petitioner was indicted by the federal court or the eastern 4istrict of Texas for tPlil crime of murder, conimitted in th f3 year 1888, in the district known a& "No Man's Land." He was.arrested in this state; and a removal sought to the Texas district. To preveut that, this petition in habeas corpus has been filed; and the question presented is as to the jurisdiction of ,the Texas court over the territory and the offense, and the duty of this court on habeas C<>ryUS. lithe jurisdiction of that court, both al;l to the territory and the offense, was clear,the duty of this court would be imperative to deny the petition, and see.that the petitioner be removed to that district. On the other hand, if it were clear that that court did not have jurisdiction, either as to the territory or the offense, then it would in like manner be the imperative duty of this court to suspetition, and discharge the petitioner. But neither of those is this case. ..Again, if it was a case where the question was which of two courts had jurisdiction, then it would be the duty of this court to determine, if it were a. matter of doubt, which most probably had jurisdiction, and send the petitioner there. But this case does not even present that question, for here, confessedly, no court has jurisdiction, unless it .be the Texas court; and the question is, what is the duty of this court, under such circumstances as these? Conceding that the jurisdiction of .the Texas court be, doubtful, if it have no jurisdiction, then there is no .jurisdiction to punish this offense. In a case like that, I that .if there be fair renson for, believing that that court has jurisdiction, or .that that C01ll't, being a court of equal authority withtl)is, with the right ·to determine of its own jurisdiction, .would on inquiry hold in favor of that jurisdiction, then, as ill no other _ way 9all inquiry be