Cape Girardeau & S. L. R. v. Winston

5 F. Cas. 32

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: January 15, 1877
• Status: Published

Opinions

TREAT, District Judge.

This cause was removed into this court by Frederick S. Winston and William J. Alt. Plaintiff brought suit against the Illinois, Missouri and Texas Railway; also the trustees under the deed of trust named (Winston being the surviving trustee), and several corporations and individuals alleged to be holders of bonds secured by a deed of trust executed by the defendant corporation, to-wit: the Illinois and Texas Railway Company, upon the property of the plaintiff, pursuant to the alleged contracts and other writings obligatory in the petition set. out and referred to. The said cause was removed by Winston and Alt, on the hypothesis that the act of 1SGG, that is, the second clause of section 630, of the Revised Statutes of the United States, governed their rights, and that they were within its terms. It is apparent that, if the act of 1800, in the respect named, is still in force, the controversy, so far as it concerns said Winston, who is the trustee, can not be determined without the presence of the grant- or in the deed — which deed is sought to be invalidated — nor can the ease be determined as to the rights of Alt, who is one of the many. bondholders secured by the deed of trust. Therefore, if the motion is to be controlled by the act of 1866, the cause must be remanded. If this be not correct, it becomes necessary to decide whether the act of 1873 (18 Stat. 470) repeals the act of 1SG0, as reproduced in clause 2, section 639, of the Revised Statutes. Section 10 of the act of 1873, declares that “all acts and parts of acts in conflict with the provisions of this act are hereby repealed.” Section 2 of the act of 1873 declares that “when, in any suit mentioned in this section, there shall be a controversy wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit,” etc. If the purpose of this act (1875) was to restore what, obviously, is the constitutional limit of the jurisdiction of United States courts, by confining them to controversies which are wholly between citizens of different states, then the act of 18G6 is repealed.

The strange anomaly presented by the act of 18GG, whereby suits were “split.” leaving one portion to be tried in a United States court, and the other in a state court, it may have been designed by the act of 1S75 to remove from the statute-book. It will be observed that section 2 of the act of 1875 contemplates, as does section 1 of the same act, that the controversy must be “wholly” between citizens of different states. Under repeated decisions of the United States supreme court, prior to the act of 1866, all of the parties, plaintiff and defendant, had to fall within the provisions of the act of 1789. If the act of 1866 was constitutional, the strange result followed that, where a United States circuit court had no original jurisdiction, and could have none constitutionally, from the joinder of parties, it could acquire jurisdiction, despite the status of the parties, by removal from a state court. The constitution contemplated, as frequently decided, that the party plaintiff and the party defendant, whether including one or many persons, should be citizens of different states. How, then, consistent with its requirements, could a suit instituted in the state court, which, as there instituted, would be beyond federal jurisdiction, be removable into a United States court by changing the suit, through the splitting process, into two suits? If this were allowable, then ‘fragments of suits would be substituted for entire suits, and, through a strange process, the United States courts would obtain jurisdiction of fragments w'kere they had none of the suit itself. Hence the conclusion is: First, that this case does not fall within the terms even of the act of 1866; second, the act of 1866, in the respects named, is repealed by the act of 1875; third, if neither of the foregoing propositions is correct, those peculiar provisions of the act of 1866 must be held to be unconstitutional and void.