People v. Russell & Co., Sucrs., S. en C.

12 P.R. Fed. 309

• Court: District Court, D. Puerto Rico
• Decided: July 25, 1921
• Docket: No. 1474
• Status: Published

Opinion

OdliNj Judge,

delivered tbe following opinion:

This action was originally commenced by the People of Porto Pico as plaintiff in the district’court of Ponce, being an Insular •court, and in March of this present year the action was removed to this court upon the usual petition and bond, which petition set forth that the defendants Pussell & Company were a limited partnership consisting of six members, none of whom were domiciled in Porto Pico, one of whom was a subject of the kingdom of Great Britain, two of whom were citizens of the state of New York, one of whom was a citizen of the state of New Jersey and two of whom were citizens of the state of Ohio.

After the transcript of the record had been filed in this court, counsel for the People of Porto Pico for some reason difficult to understand proceeded to apply to the supreme court of Porto Pico for a writ of certiorari seeking to set aside the order of the judge of the Insular court at Ponce, directing that the ease should be removed to this court; and shortly after this application to the supreme court of Porto Pico and while the certiorari was there pending undecided, counsel for the People of Porto Pico also presented a motion in this court for a remand of the case. That motion was argued before the Honorable Peter J. Hamilton, who was the judge of this court prior to the 7th day of May, 1921, and Judge Hamilton denied the motion to re-maud. The order of Judge Hamilton denying the motion to remand was signed on tbe 5th day of May, 1921. On the 10th day of May, 1921, after Judge Hamilton had retired from the bench and after the present judge had followed him upon the bench, counsel for the People of Porto Pico filed a petition for a rehearing, setting forth fifteen alleged grounds why the petition for a rehearing should be granted.

The first ground is that the petition for the transfer of the case, which petition was presented to the district court at Ponce, was vague and indefinite; but nothing is set forth to show wherein or whereby such petition is vague and indefinite. Therefore the statement in the first ground is a mere conclusion of law and is not worthy of consideration.

The second ground is that neither from the complaint filed in the said cause nor from any other document filed therein nor from the said petition for the transfer does there appear sufficient 'cause for removal to this court; but said second ground fails to set forth any specific facts showing such lack of sufficient cause; therefore the statement in the second ground is a mere conclusion of law and deserving of no consideration by this court.

The third ground for rehearing is that the petition for the transfer of the cause has neither any petitioner nor any petitioners. It is very evident that counsel who prepared this application for a rehearing have failed to read the petition for the transfer of the cause, because the names of the petitioners are distinctly set forth therein with all the allegations required by the rules of this court and by the acts of Congress.

The fourth ground of this application for a rehearing is that the said petition for the transfer of the case is so vague and indefinito tliat it is impossible to determine from its face wlio is the petitioner or who are the petitioners therein. It may be true that the counsel who prepared this application for a rehearing are unable to determine from the face of the petition for the transfer who the petitioners are, hut it is very easy for this court to determine; and a simple reading of the petition shows that the petitioners asking for the transfer are the same parties who were originally sued by the People'of Porto Eico in the Insular court at Ponce.

The fifth ground alleges that from the face of the petition for transfer it is impossible to determine whether the said petition is the petition of Havemayer, Dillingham, Morgan, Arnold, Orde and Welty; or whether the said petition is the petition of Russell & Company, Suers., S. en O. A simple reading of the petition shows that it is the petition of Havemayer, Dillingham, Morgan, Arnold, Orde, and Welty, who are the members of a limited partnership, and that the style and name of such limited partnership is Russell & Company, Suers., S. en C. In other words, counsel for the People of Porto Rico seem to be complaining that the parties whom the People of Porto Rico sued in Ponce are the same parties who have removed the case to the Federal court. It seems perfectly plain to the writer of this opinion that the People of Porto Rico is estopped to present any such complaint to any court.

The sixth ground set forth for this rehearing is that if the said petition for the transfer of the case is the petition of Havemayer, Dillingham, Morgan, Arnold, Orde, and Welty, it is the petition of persons who are not parties to the cause or of a person who is not a party to the cause. This sixth ground assumes that the People of Porto Rico brought a suit against Havcmayer, Dillingham, Morgan, Arnold, Orde, and Welty, while the original complaint filed in the court at Ponce showed that the People of Porto Eico did not sue these six gentlemen in their individual capacity.

The seventh ground set forth in this application for rehearing is to the effect that neither from the face of the complaint in said cause nor from any other document filed therein nor from the face of said petition for the transfer of the case does it appear that there is any diversity of citizenship between the People of Porto Eico and the defendants in said cause. Counsel preparing this application for a rehearing have evidently failed to read with care the record of this case, for the petition for the transfer of this case distinctly shows that the plaintiff does not know the citizenship of the said plaintiff, the People of Porto Eico, but believes that the plaintiff is a citizen of the United States domiciled in Porto Eico, and the petition further alleges that the said plaintiff is not a citizen of and is not domiciled in New York or New Jersey, or in Ohio, or in the Dominion of Canada. This court holds that the People of Porto Eico is capable of suing and is a creation of the Congress of the United States, and that it has a perfect right to sue in its own courts, but this right cannot deprive defendants, who are not citizens of Porto Eico and who are not domiciled in Porto Eico, from removing such suits to this court, r where- the amount involved exceeds $3,000, exclusive of interest and costs. This court, therefore, finds that the required diversity of citizenship does exist. It is, of course, conceded that if the People of Porto Eico had desired to commence this action in this United States district court against these same defendants this Federal court would beyond question bave bad jurisdiction of tbe case. Now, then, can it bo argued tbat, by choosing tbe Insular court at Ponce for tbe institution of this action, tbe defendants were thereby deprived of tbe right of removal? This seventh ground, to my mind, has no force whatever.

Tbe eighth ground is, to my mind, extremely ingenious, but without legal force. It seeks to prevent tbe removal of the cause from tbe Insular court to tbe Federal court upon tbe theory tbat, while the individual inhabitants of tbe Island of Porto Pico have been made citizens of tbe United States by act of Congress (except tbe 288. misled inhabitants who declined to accept such citizenship), tbe People of Porto Pico as a body politic is without citizenship; and tbe claim is then made tbat because tbe People of Porto Pico is without citizenship there cannot exist any diversity of citizenship between the People of Porto Pico as a body politic and any person or persons, natural or juristic. It has been expressly enacted by Congress that, while the People of Porto Pico as a body politic may not be sued without the consent of the People of Porto Pico, still such consent has been given under certain conditions by the legislature of Porto Pico herself; and it has been further held that the People of Porto Pico may be the plaintiff in a lawsuit against other parties, and it has been also held by the circuit court of appeals at Boston that the People of Porto Pico may be the intervener in a suit pending betwéen A and B. Therefore, it is clear to me that counsel for the People of Porto Pico may not be heard to complain that the People of Porto Pico lack citizenship so as to prevent in every case the removal of an action properly commenced by the People •of Porto Pico in the Insular court when such litigation might have been begun b}^ the People of Porto Rico in the Federal court, if so desired.

The ninth ground sets forth that the People of Porto Pico is not a citizen of the United States. To my mind it is inconceivable that the inhabitants. of Porto Pico are lawfully citizens of the United States and that the People of Porto Pico, who is made up of the inhabitants of the Island of Porto Pico, may make the claim that the People of Porto Pico is not a citizen of the United States. And it is surprising to the, writer of this opinion that the Attorney General of Porto Pico should put himself upon record as claiming that the People of Porto Pico as a body politic disclaims citizenship of the government of the United States.

The tenth ground is based upon the claim that the People of Porto Pico has no domicil whatever. Sufficient to say that this court will take judicial knowledge of the fact that the People of Porto Pico as a body politic can only have one dom-icil, and that domicil is the Island of Porto Pico. If the People of Porto Pico had no domicil, the People of Porto Pico could have no existence. I cannot conceive of a body politic without a domicil.

The eleventh ground sets forth that the People of Porto Pico is not domiciled in the Island of Porto Pico. . To me it seems that this statement approaches a degree of levity, and ridiculousness not properly embodied in formal court pleadings. If the People of Porto Pico as a body politic is not. domiciled in the Island of Porto Pico, inquiry naturally arises, where is that body politic domiciled? The discussion of claims of this nature seems to me to be most puerile and most useless.

Coming to the twelfth ground of this application for a re-bearing counsel for tbe People of Porto Eico say tbat it appears from the face of the complaint that the defendants constitute a civil, agricultural partnership “in commcndam” organized under the laws of Porto Eico; and there is nothing in any document filed in said cause or in the said petition for the transfer of the case which contradicts in any manner whatever the said allegation of the complaint. It is the opinion of this court that if these six gentlemen whose names have been given were to come to Porto Eico and were to invest their capital in the form of a corporation and obtain a charter from the People of Porto Eico, such corporation, if made the defendant in this cause, would not be allowed, of course, to remove the action to this Federal court; but it is very clear that these six gentlemen, citizens of various states and domiciled outside of Porto Eico, had a perfect legal right to come to Porto Eico and invest their money in Porto Eico and form either a general partnership or a limited partnership, as they might see fit; and that such partnership, whether general or limited, would have the same rights of removal as if one of these gentlemen alone were the defendant in a suit similar to this. •

Coming- to the thirteenth ground in this application for a rehearing, counsel for the People of Porto Eico try to make it appear that these six gentlemen by forming this limited partnership ceased to be citizens of any country or of any state or of any territory other than Porto Eico. The only answer I can make to.this contention is that counsel for the People of Porto Eico seem to fail to distinguish between a limited partnership and a corporation.

The fourteenth ground set forth in this application for a rehearing is to the effect that it docs not appear from any of the papers filed in this case that Russell & Company, Suers., S. en C.,-are- domiciled'in any other country, state or territory than Porto Rico. In the opinion of the writer the limited partnership operating under the name of Russell & Company, Suers., S. en C., has no domicil distinct and separate from the' domicil of the gentlemen who compose such partnership.

The fifteenth and last ground in this application for a rehearing shows that counsel for the People of Porto Rico have failed to read the petition for the transfer of the case. It is alleged in this fifteenth ground that it does not appear from the petition for the transfer that the matter or amount of the controversy in said cause exceeds the sum or value of $3,000, exclusive of interest and costs. This statement is expressly set forth and is found at page 13 of the transcript of the record filed in this court, and it is sworn to by Mr. H. P. Orde, on March 8, 1921, he being one of the defendants.

There is one more feature of this unusual proceeding which it is rather embarrassing for the writer of this opinion to dwell upon, but silence might be misunderstood; and for that reason it is deemed proper to conclude this opinion by reference to the singular conditions which surround this application for a rehearing. The writer of this opinion assumed his duties as judge of this court after the first application for a remand had been denied, such ruling having been made by the Honorable Peter J. Hamilton, who was the judge of this court previous to the 1th day of May, 1921. Three days after the retirement of Judge Hamilton the petition for a rehearing was filed by the Attorney General of Porto Rico. There has likewise been presented to this court what purports to be a decision of the supreme court of Porto Rico, being in the form of an opinion by the Honorable Adolph G-. Wolf, Associate Justice, tinder date of May 17, 1921, which is based upon an application made to the supreme court of Porto Eico by the Attorney General of the People of Porto Eico for a writ of certiorari to the clerk of the Insular district court of Ponce, from which court this case has been removed to this court.

The writer of this opinion has very great respect for Justice Wolf and for his associates upon the supreme court of Porto Eico. The writer of this opinion also considers that all the decisions and opinions of the supreme court of Porto Eico are entitled to great weight and consideration and careful study when they are presented to this court. Therefore, the opinion signed by his Honor, Justice Wolf, has been thoroughly studied by the undersigned before reaching a decision in the present controversy. The trouble is, however, that the Supreme Court of the United States has decided numerous times that the question of lawful removal or unlawful removal must be decided only by the Federal court itself, subject to the proper appellate procedure to another and higher Federal court, which shall effect the remand desired if such remand should be improperly denied.

Eeference is had first to the case of the Home L. Ins. Co. v. Dunn, found in 19 Wall. 214, 22 L. ed. 68. It is there held that when a state court refuses to recognize the removal of a cause and further proceedings are had therein, the order made or judgment rendered is subject to review and reversal by the Federal court, and the power of paramount and final decision rests with the hitter. It is furthermore held in the case of Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992, 7 Sup. Ct. Rep. 1030, that after a cause has boon removed into the Federal court tbe state court can proceed no further until its jurisdiction bas been in some way restored.

Reference may also be bad to tbe case of Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354. Tbe Supreme Court there saj's distinctly that when the statute for tbe removal of a cause bas been complied with, no action by tbe state court can prevent the removal. Tbe very distinguished Chief Justice Waite in the year 1884 wrote an opinion which is found in 111 U. S. 134, 28 L. ed. 378, 4 Sup. Ct. Rep. 353, in the case of the Chesapeake & O. R. Co. v. White. In this case the Supreme Court was called upon to decide the proper method of proceeding where'the state court insisted upon proceeding with the trial of a case after it had been properly removed from such state court to the Federal court. It was argued that there might be a remedy for this improper action by means of a writ of prohibition, or by means of a complaint in the nature of contempt of court. The Supreme Court of the United States, however, distinctly holds that the proper remedy is by writ of error after final judgment. The court distinctly holds that where a sufficient case for removal had been made the rightful jurisdiction of the state court ceased, and such state court could not properly proceed any further.

Many other decisions of the Supreme Court of the United States might be cited, but it seems to me sufficient to refer to .an old case in 16 Pet. 97, 10 L. ed. 900, entitled Gordon v. Longest, which has been cited and approved at least a hundred times. It is there held that every step subsequently taken in a state court after the proper application for removal to a Federal court is coram non judice.

It is therefore apparent that the distinguished justice of the supreme court of Porto Pico either overlooked these numerous decisions of the Supreme Court of the United States, or That ho deemed the same inapplicable upon the theory that Porto Pico is not a state. But the court to which this case was removed, being a Federal court established under an act of Congress, must have necessarily the same power and authority with respect to the removal of causes as if Porto Pico wore a state; otherwise this court would not be a Federal court. The very purpose of the creation of this Federal court was the same as is expressed by Justice M’Lean of the United States Supreme Court nearly eighty years ago in the case last cited, to the effect that one great object in the establishment of the courts of the United States and regulating their jurisdiction was to have a tribunal in each state presumed to be free from local influence; and to which court all who are nonresidents or aliens may resort for legal redress; and that this object would be defeated if any state judge in the exorcist1 of his discretion might deny the removal of a cause to a party entitled to it.

In conclusion, the writer of this opinion regrets extremely that the attitude of the attorney general of Porto Pico in this present controversy has been such as to require the present judge of this court to decide a question already passed upon by his own predecessor, and in apparent conflict with the informal views of an honorable associate justice of the supreme court of Porto Pico. It is the. purpose and desire of this court to operate in complete harmony with the Insular courts of Porto Pico. It is certainly fair that this court should request all counsel practising before it, whether representing private clients or whether representing the People of Porto Rico, to so present their cases as to promote harmony between the two systems of courts in this Island rather than tending to promote conflict. It is furthermore observed that the opinion of the Honorable Associate Justice Wolf docs not conclude with any specific statement or direction that the order of the Insular district court of Ponce is annulled, or is. declared to be annulled; but merely expresses the view of the writer of that opinion that the action of the clerk of the Insular district court of Ponce should be annulled.

It is of course quite possible that this case is one that should be remanded. The natural desire of the judge of this court would be to remand the case if it is one which should be remanded. This court has no desire to occupy its time and attention with the trial of cases not properly brought before it. If the order in this case denying the rehearing is an erroneous order, the People of Porto Rico has one of three remedies, as outlined in a case reported in Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A.(N.S.) 392, 31 Sup. Ct. Rep. 324, modified and amplified and discussed at length by the decision, in Ex parte Park Square Auto. Station, 244 U. S. 412, 61 L. ed. 1231, 37 Sup. Ct. Rep. 732, bot-h of the opinions being written by the late lamented Chief Justice White. Ho makes it clear that where a case is improperly removed and should be remanded, but the Federal trial court refuses such remand, the only proper remedy is either by inandamus to the .Federal appellate court in extraordinary cases, or- by means of a writ of error or appeal or certiorari in cases not extraordinary.

For the reasons herein set forth the petition for rehearing is denied, and the former opinion rendered by his Honor Judge Hamilton is approved and confirmed.

It is so ordered.