Caples v. Texas & P. Ry. Co.

67 F. 9, 1895 U.S. App. LEXIS 3368

• Court: U.S. Circuit Court for the District of Western Texas
• Decided: April 10, 1895
• Docket: Nos. 175, 178, and 187
• Status: Published

Opinion

MAXEY, District Judge

(after stating the case) delivered the following opinion:

As the defendant is a corporation owing its legal existence to acts of congress, removal of these causes is sought on the ground that they are suits arising under the laws of the United States'. It is said by Mr. Chief Justice Fuller, speaking for the court, in Railroad Co. v. Cox, 145 U. S. 601, 12 Sup. Ct. 905, that:

“The Texas and Pacific Railway Company is a corporation deriving its corporate powers from acts of congress, and was held in Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, to be entitled, under the act of March 3, 1875, to have suits brought against it in the state courts removed to the circuit courts of the United States on the ground that they were suits arising under the,laws of the United States. The reasoning was that this must he so, since the company derived its powers, functions, and duties from those acts, and suits against it necessarily involved the exercise of those powers, functions, and duties as an original ingredient.”

Under the act of March 3, 1875, § 2 (18 Stat. 470), either party to the suit, plaintiff or defendant, was entitled to remove a suit from a state court to the circuit court of the United States on the ground that the suit was one arising under the constitution or laws of the United States; and under that act it was held sufficient to justify a removal by the defendant that the record at the time of the removal showed that either party claimed a right under the constitution or laws of the United Stales (Tennessee v. Union & Planters’ Bank, 152 U. S. 460, 14 Sup. Ct. 654, citing authorities), whether the federal question, upon which the right of removal was made to depend was raised for the first time in the suit by the answer or plea of the defendant. Metcalf v. Watertown, 128 U. S. 589, 9 Sup. Ct. 173, citing Railroad Co. v. Mississippi, 102 U. S. 135, and other authorities. Under the act of August 13, 1888, § 2 (25 Stat. 433) the right to remove a suit from the state court to the circuit courts, on the ground that it is one arising under the federal constitution or laws, is limited to the defendant, and also to that class of suits of which the cmcuit courts are given original jurisdiction by the first section of the act. Thus it is said by Mr. Justice Gray, as the organ of the court, in Tennessee v. Union & Planters’ Bank, 152 U. S. 461, 462, 14 Sup. Ct. 654, referring to the act of August 13, 1888:

“But the corresponding clause in section 2 allows removals from a state court to be made only by defendants, and of suits of which the circuit courts of the United States are given original jurisdiction by the preceding section; thus limiting the jurisdiction of a circuit court of the United States on removal by the defendant, under this section, to such suits as might have been brought in that court by the plaintiff under the first section.” “And by the settled law of this court,” further says Mr. Justice Gray, at page 464, 152 U. S., and page 654, 14 Sup. Ct., “as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the constitution or laws of the United States does not make the suit one arising under that constitution or those laws.”

In those three suits as filed by the plaintiffs in the state court no right is claimed under the constitution or any law of the United States, nor is there the slightest intimation that any federal question arises in them, nor in either one of them is any mention made of the constitution or laws of the United States. They are suits based upon the right of the plaintiffs to recover damages of the defendant by virtue of the negligence of its agents and servants, and under the general and familiar principles of the common law. Whether, therefore, this court would have original jurisdiction of these suits, admits, to say the least, of serious doubt, particularly in view of the case of Tennessee v. Union & Planters’ Bank, supra. The decision of that question, however, not being absolutely necessary to the proper disposition of the motions to remand, its determination for the present will be reserved. These suits must be remanded to the state court on another ground. As already said, the original petitions of the plaintiffs suggest no federal question, and the first averment or intimation that the suits 'arise under the constitution or laws of the United States is found in the petition for removal filed by the defendant in the state court. It appears from the authorities cited above that the suits could have been removed under the act of March 3, 1875, as that act, according to the construction placed upon it by the supreme court, authorized removal by the defendant, as has already been shown, although the federal question was raised for the first time in the suit by his plea or answer or in his petition for removal. A different rule, however, obtains under the act of August 13, 1888, which forbids the removal of a suit by the defendant, unless the fact that it is one arising under the constitution or laws of the United States appears by the plaintiff’s statement of his own claim. Says Mr. Justice Gray, in Cable Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. 192:

“It is equally well settled that under the provisions above referred to of the existing act of congress no suit can be removed by a defendant from a state court into the circuit court of the United States as one arising under the constitution, laws, or treaties of the United States, unless the fact that it so arises appears by the plaintiff’s statement of his own claim; and that a deficiency in his statement in this respect cannot be supplied by allegations in' the petition for removal, or in subsequent pleadings in the ease.” Tennessee v. Union & Planters’ Bank, supra; Chappell v. Waterworth, 155 U. S. 102. 15 Sup. Ct. 34; Land Co. v. Brown, 155 U. S. 489, 15 Sup. Ct. 357.

It therefore clearly appears that the defendant was not entitled to remove the first and second of these suits, but it is suggested by counsel that the third cause—Juan Cruz against the company— should be retained here, because the plaintiff has cured any deficiency appearing in his original petition, as to the existence of a federal question, by alleging, in his amended petition, filed in this court, that the defendant is a corporation deriving its existence and corporate powers and functions from the Laws of the United States. The language of the court in Cable Co. v. Alabama, supra, furnishes a conclusive answer to this suggestion. “A deficiency in his statement, in this respect, cannot be supplied by allegations in the petition for removal, or in subsequent pleadings in the case.” And that such deficiency in the plaintiff’s original statement cannot be so amended in this court as to confer upon the court jurisdiction of a cause which was not properly removable when the petition and bond for removal were "filed by the defendant in the state court, appears also clear by reference to the following authorities: Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. 692; Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518; Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9. For the reasons stated, the motions to remand these suits should be sustained, and the causes remanded to the state court at the cost of the defendant; and it is so ordered.