Scott v. R. D. Kinney & Co.

137 F. 1009, 1905 U.S. App. LEXIS 5033

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: May 26, 1905
• Docket: No. 7
• Status: Published

Opinion

' . OCEEAMD, District Judge.

¡Suit was Instituted in this cáse ih ¡the - court fef common’- pleas' Mo. '3 of. Philadelphia -county, March ’ter.nii tt8á8, .to recover for -personal injuries resulting from the negIligetteeof -'the ¡defendants in failing to -provide a ¡sáfe place in which •thé plaintiff, could do his Work, in the capacity of á ¡boiler maker, ¡who was engaged, as he alleges, by the defendants to work on. a ¡tank whieh 'they were’erecting a't the time. Oh March 21, 1905, the ‘-defendants 'presented their petition -to 'the said court of coirimon pleas' of Philadelphia county for the removal of 'this casé into the ■United-'States 'Circuit Court for the-Eastern District-of Pennsylvania,-itnd'eSf section 641 of the Revised Statutes [U. ’S. Comp. St. ■'lUOl/p. -520], Wherein it is alleged they have been most anxious to -fiavé t'h'e said action brought to 'trial before the loss of -existing important evidence, necessary and material to the defense of said action, and that four different lawyers, members of the Philadelphia •bal, had been successively employed, each of whom had withdrawn from the-Cáse, and -that since August 7, 1902, the defendants have bfe'Cn Without counsel for the defense of their suit. The cáse was dt is'siié -on- March '2, 1&98,' and has beeii regularly ordered for trial three times since that time—first on May 10, 1899, then on January ^/•lSlOl; and again on December 2, 1904—and wás called fof trial feñ February -14, 1905, when the defendants insisted upon trial or feón pros,, ’both of Which were overruled against the objection Of the defendants. . Then follows a . citation of the rules of court and acts bf assembly enacted in the state of Pennsylvania for the purpose 'of'-enabling the defendants' to bring their ease tb trial. Where-fóre/ihé 'petition' alleges, the defendants “have been defaied and Vánríbt -enforce in -íHé proper 'tri-burial of the state bf Pennsylvania a right secured to them by the laws of Pennsylvania, providing for the equal civil rights of citizens of the United States, to wit,.the right, under the fourteenth amendment to the Constitution of the United States, to the equal protection of the laws, as also to the right, under said amendment and acts of Congress, for the enforcement thereof, to wit, the full and equal benefit of rill laws and proceedings for the security of persons and property as is enjoyed by other citizens of the state of Pennsylvania.” Copies of the pleading? gnd'other proceedings, in the case drere filed in this court oh March 23, 1Í9Ó5, and the samé were docketed here, as claimed by defendants; ¡in accordance with the .provisions of section 641. ..

The motion of the plairififf can be regarded as one to remand the case.to /the,epuft of common.pleas. All the allegations contained In the--petition for removal are to be taken as true, as there is no denial ori the part of the plaintiff;' but the facts set forth, together with the most favorable inferences to be drawn therefrom in favor ■of the petitioners,-fail tb make out a casé for removal to this court under section 641. At most, the facts alleged in the petition Show that the defendants have been.-delayed in .bringing théir cause to trial by reason of their inability to^ secure .an attorneyi- fpr that purpose, or for the reason that the plaintiff, ha?, been, able to. secure postponements of the trial .of the cáse in the state court against the protest of the defendants. There is no allegation that there is any law of the state of Pennsylvania, or rule of court of the city of Philadelphia, which discriminates against the defendants. If the defendants have been unable to bring their case to trial in the state court, it is because of their failure to secure an attorney for that purpose, or on account of the action or nonaction of the courts, and not from any command or authority of the state, or any provisions of the laws of the state. For such wrongs, in the language of the Supreme Court, section 641 has no application. It was not intended to reach such cases. It left-them to the revisory power of the higher courts of the state, and ultimately to the review by the supreme judicial tribunal of the land. Virginia v. Rives, 100 U. S. 319, 25 L. Ed. 667.

The denial or inability to enforce in the judicial tribunals of the states rights secured by any law providing for the equal civil rights of citizens of the United States, to which section 641 refers, and on account of which a- civil suit or criminal prosecution may be removed from a state court, is primarily; if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the Constitution or laws of the state, rather than a denial first made manifest at or during the trial of the'case. Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075.

It is only when some state law, ordinance, regulation, or custom hostile to these rights is alleged7 fo exist that a removal can be had under the first clause of this section. In re Wells, Fed. Cas. No. 17,-386. It was intended to protect against state action, and against that alone. In other words, the statute has reference to a constitutional or legislative denial of equal rights, or an inability to enforce them resulting therefrom, and not to any denial or inability .to enforce resulting from the .action .of .the judiciary. Virginia v. Rives, 100 U. S. 339, 25 L. Ed. 676. And it refers to legal disabilities and legal impediments, and not to private infringements by prejudice or otherwise, when the laws themselves are impartial and sufficient. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Le Grand v. U. S. (C. C.) 12 Fed. 577, note 583.

Thus it will be seen that the Supreme. Court has held that removals under section 641 can only be.had when the party complainant cannot enforce rights secured to-him by the law providing for equal civil rights of the citizens of the United. States in a judicial tribunal of the state by reason of some enactment or constitutional provision of the state, and the allegations in this ■ petition fail to show or even suggest such a case.

It was suggested at the argument that the case is not properly before this coúrt, and should be dismissed. We do not think it is necessary to examine this technical objection, as, upon the facts alleged in the petition, we are of the opinion that it is not such a case as can be removed to this court under section 641, and must therefore be remanded to the court of common pleas No. 3 of Philadelphia county, and it is so ordered.