Clark v. Delaware Hudson Canal Co. , 11 R.I. 36 ( 1874 )

This action has been once tried before a jury in this court and the jury disagreed. The defendants now file a motion, with the proper papers, to remove the cause to the United States Circuit Court, under the acts of Congress of July 27, 1866, and the amendatory act of March 2, 1867. 14 U.S. Statutes at Large, 306, 558.

The plaintiff opposes the motion on the ground that the cause cannot be removed under the acts of Congress, as a trial has taken place in the state court.

The act of 1866 provides for removal of a suit at any time before the trial or final hearing. The act of 1867 varies the language somewhat, and provides for removal at any time before the final hearing or trial.

We have been referred to the recent decision of the Supreme Court of Massachusetts, in the case of Galpin v. Critchlow,112 Mass. 339, where the circumstances were similar to those of the case before us. There had been one trial resulting in a disagreement of the jury, and that court decided that the cause could not be removed. We cannot acquiesce in the reasoning or the conclusion in that case, and we think the weight of argument and authority is decidedly in favor of the right to remove.¹

With the policy of the acts of Congress, we, as a court, whatever our individual opinions may be, have nothing to do. Their effect, no doubt, is to carry into the United States courts a great mass of litigation which would otherwise remain in the state courts. The act of 1867 has been decided not to be unconstitutional by the United States Supreme Court, in 1872, in the case of the Railway Company v. Whitton's Administrator, 13 Wall. 270. See, also, Fields v. Lamb, Deady, 430.

Upon the construction of the act we must, however, decide. This, indeed, seems to be a mere form on our part, as in two cases, Hazard et al. v. Durant et als. 9 R.I. 602; andEllis v. Pope et als., where this court decided there was no ground for removal, the United States Circuit Court, nevertheless, took immediate jurisdiction of them.¹ See alsoWhitton v. Chicago N.W.R.R. Co. 25 Wis. 424; S.C. 13 Wall. 270; Akerly v. Vilas, 24 Wis. 165; and S.C. before Miller, District Judge, in 1 Abbott's U.S. Rep. 284.

It might be desirable that some mode should be provided by which questions relating to the construction of these acts, involving possible conflict of jurisdiction, might, even before a trial upon the merits of a case, be taken to the United States Supreme Court for their decision. Congress, however, has made no provision for it. In one case, indeed, where the state court refused the removal, and proceeded immediately to trial, the suit was removed to the United States Supreme Court by writ of error.²

Our conclusion is, that an order should be entered that this court will proceed no further in the cause. And we are clearly of opinion that the amendments made to the declaration should be considered as made of the time when the declaration was filed. But if the cause is to be removed it should be removed as of the date when the motion for removal was made; and the papers should be certified as they were at that date.

¹ See Insurance Company v. Dunn, 19 Wall. 214.

¹ But the Circuit Court after a hearing decided, June T. 1869, not to retain jurisdiction of Hazard v. Durant, and the case returned to this court. See infra.

² See the case of the Sewing Machine Companies, 18 Wall. 553-587.