Barber v. St. Louis, Kansas City & Northern Railway Co.

43 Iowa 223

• Court: Supreme Court of Iowa
• Decided: June 6, 1876
• Status: Published

Opinion

Beck, J.

The first application of defendant was under the Act of Congress of March 3rd, 1875, which authorizes either party to suits of the character and between parties specified, to remove them to'the United States Circuit Courts, upon a petition filed “before or at the term at which said cause could be first tried, and before the trial thereof.” Sec. 3. Counsel for defendant first claim that their petition was within the spirit of this statute, and their application should have been granted under it.

1. jurisdicai°? cause to ignorance™!’ statute. I. They insist that, as the law had not been published and was not known to them, which is shown in their affidavits, cou^ have complied with its requirements while the cause was pending in Wapello county. It is not claimed that the law was not in force at the time, or that it was not published in such a sense as to make it operative. We understand from the showing of counsel, that they simply claim it was not so published as to be known to them. If the law was in force, the ignorance, from any cause, of those affected by it is no reason why it should not be enforced against them.

2. application II. It is next urged that it was shown to the court that, on account of other business pending before the Wapello court, cause could not have been tried there at the retum term. But the language of the statute above quoted evidently is intended to indicate the first trial term of the court. It was not intended, upon applications of this kind, to raise questions as to the possibility of reaching a cause and the like, but simply whether, under the law and rules of the court, the cause ecm be tried. As the • cause before us was triable at the appearance term of the Wapello court, the application for its transfer to the United States Court should have been made at that term, if at all.

II. The second application of defendant for the transfer of the cause was made to conform to the requirements of the Act of Congress of July 27, 1866, as amended by the Act of March 2, 1867. These acts, together' with that of Sept. 24, 1789, are substantially incorporated into Sec. 639 of the U. S. Revised Statutes, and, it is presumed, are repealed thereby. § 5596. It is insisted by counsel for plaintiff that § 639 is repealed by the later Act of March 3, 1875, and that, as-the last application of defendant was in conformity with that section and not with the statute in force, the Circuit Court correctly ruled in refusing to send the cause to the United States Court. We are required to determine whether the prior enactments are repealed by the act last mentioned.

The statute, it will be observed, applies to all cases of which the State and Federal courts have concurrent jurisdiction under the constitution of the United States, as interpreted by the Supreme Court, and provides that either party, in any such case, may remove it to the Circuit Court of the United States for the proper district. § 2. The section next following provides at what time such removal may be made, and the proceeding to be had authorizing it. The application is to be at the appearance term, before trial, and may be made at the option of the party without showing cause therefor. This statute confers the right of removal, and prescribes the conditions under which it may be exercised. The right can only be exercised in the manner and at the time provided by the statute.

3 _._. ?oc1ínnflu-an<* eiice. Under the Bevised Statutes, § 639, in cases of the character of the one before us, namely: those between citizens °f the State wherein they are brought, and citizens of other States, the ground of the removal is the showing of prejudice and local influence, whereby justice would be defeated. This statute provides that the right of removal conferred thereby may be exercised at any time before trial, upon a showing of prejudice and local influence.

4.-: —: subsequent enactment, It will be observed that, while the two statutes confer the same right, they contain different provisions gov-r. . t ernmg its exercise, in one instance the right is to be exercised at the option of the party, during the appearance term, before trial; in the other, for prejudice or local influence, at any time before trial. The subjects of the statutes are not confined exclusively to the right of removal — the time thereof and the proceedings to authorize the removal are of the subjects of the enactments. The statutes, having different subjects in their provisions, are not in conflict. The last section of the later act (§ 10), which provides that all conflicting statutes are repealed, does not repeal the provision of § 639, Bevised Statutes, providing for the removal of cause on the ground of prejudice and local influence. There is no ground for holding the last act to be repealed by implication.

It follows, from these views, that the Circuit Court erred in refusing to order the removal of the cause, upon the application of defendant, grounded upon prejudice and local influence.

Beversed.