he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim." 1

§ 551. Removal of proceedings against officers and soldiers of the United States, court officers, house officers and persons having defenses under the revenue laws. By the Judicial Code, which re-enacts with some alterations, the provision of the Revised Statutes in this respect,. “When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit and, together with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced or of

§ 550. 1 Jud. Code, $30, re-enacting 18 St. at L. 470, § 33, as

amended by 25 St. at L. 45. See supra, $50.

the United States stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said District Court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the District Court and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or any other process except capias, the clerk of the District Court shall issue a writ of certiorari to the State court requiring it to send to the District Court the record and the proceedings in the cause. When it is commenced by capias or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court or left at his office by the marshal of the district or his deputy or by some other person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the District Court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the District Court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the District Court that no copy of the record and proceedings therein in the State court can be obtained, the District Court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said District Court. On failure of the

plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant."1

An indictment against Federal revenue officers for killing a man while enforcing the National Prohibition law 2 may be thus removed.3

A receiver is an officer of the court which appointed him and may remove a case under this statute.4 The phrase revenue laws" does not extend to an appropriation law.5 A suit against, a naval officer to restrain him from action under a naval appropriation act cannot be removed."

The Reclamation Act of June 17, 1902,7 is not a revenue law within the meaning of the statute; and a suit against a Federal officer in charge of reclamation work to determine the water rights to a stream, or to enjoin the operation of a canal from which the water percolates on to private property,9 cannot be removed under this section. An action of libel against individuals cannot be removed by them because they claim that they are revenue officers and made the statements in such capacity.10

There can be no removal under the statute of a prosecution for the violation of a State liquor law by the sale of liquor which the Federal Prohibition Commissioner has approved.11

The Judicial Code continues, "Whenever a personal action

§ 551. 1 U. S. R. S., § 643, Act of March 3, 1875, ch. 130, § 8, 18 St. at L. 401, Act of Feb. 8, 1894, ch. 25, § 1, 28 St. at L. 36. Act of March 3, 1911, ch. 231, § 33, 36 St. at L. 1097. Act of Aug. 23, 1916, ch. 399, 39 St. at L. 532. Comp. St. § 1015.

2 41 St. at L. 305. Supra, § 506q. 3 State of Oregon v. Wood, 268 Fed. 975.

4 Matarazzo v. Hustis, 256 Fed. 882.

5 Underwood V. Dismukes, 266

Fed. 559.

6 Ibid.; State of Oregon v. Wood, 268 Fed. 975.

7 Ch. 1093, 32 St. at L. 388, Comp. St. Supp. 1909, p. 596.

8 Twin Falls Canal Co. v. Foote, 192 Fed. 583.

9 City of Stanfield v. Umatilla River Water Users' Ass'n, 192 Fed. 596.

10 People's U. S. Bank v. Goodwin, 160 Fed. 727. Cf. § 34, supra.

11 Application of Shumpka, 268 Fed. 686. It was so held before the Eighteenth Amendment of a prosecution under the State Prohibition Law of a man holding a license under the Internal Revenue Laws of the United States. State v. Elder, 54 Maine 381, citing Commonwealth v. Keener, 11 Allen (Mass.) 262.

has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the provisions of the preceding section." 12

This does not prohibit the removal of such a suit under the former section.1 13

By the Act of June 4, 1920, providing for the new Articles of War, "When any civil or criminal prosecution is commenced in any court of a State against any officer, soldier, or other person in the military service of the United States on account of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting the military forces thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court of the United States in the district where the same is pending in the manner prescribed in section 33 of the Act entitled "An Act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, and the cause shall thereupon be entered on the docket of said District Court and shall proceed therein as if the cause had been originally commenced in said District Court and the same proceedings had been taken in such suit or prosecution in said District Court as shall have been had therein in said State court prior to its removal, and said District Court shall have full power to hear and determine said cause." 14

The removal of suits against officers of the United States where the defense depends on the Civil Rights Laws is described in

12 U. S. R. S. § 644, Act of March 3, 1911, ch. 231, § 34, 36 St. at L. 1008, Comp. St. § 1016.

13 Matarazzo v. Hustis, 256 Fed.

14 Article 117, Comp. St. § 2308a.

St. at L.

the following section.15 A petition by revenue officer is sufficient, if it avers, in general language, that the suit or prosecution in the State court, which it describes, was brought against him for and on account of an act done by him in his official capacity under a revenue law of the United States, without specifying the facts.16 Where, however, the petitioner, in addition to the general averment in the statutory language, sets forth the specific facts of the case, and it appears that they do not fall within the statute, the case will be remanded.17 The petition. need not contain allegations of local prejudice.18 It should show that no trial had been had in the State court.19 It may be signed by the District Attorney of the United States when it states that it was presented as the petition of one or more revenue officers.20 When there are several petitioners, the affidavit may be executed by one of them.21

It has been held that the removal may be had when the complaint or information has been filed with a State justice of the peace, and a warrant issued by him in a prosecution for a misdemeanor, which is not the subject of indictment; 22 but otherwise, the removal cannot be had before an indictment or an information in the State court.2 23

The State court does not lose jurisdiction until after service upon it, or its clerk, of the writ of certiorari or habeas corpus cum causa.24 An order of the Federal court directing a removal cannot be substituted for these writs, which are specified in the statute.25 It has been held: that when the petition is

15 Infra, § 552.

16 Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; Abranches v. Schell, Fed. Cas. No. 21, 4 Blatchf. 256; Illinois v. Fletcher, 22 Fed. 776, 778. See also Kain v. Texas Pac. R. Co., Fed. Cas. No. 7,596; Reding v. Texas & P. R. Co., Fed. Cas. No. 11,630a. Contra, Salem & L. R. Co. v. Boston & L. R. Co., Fed. Cas. No. 12,249; Skeen v. Huntington, 25 Ind. 510; State of Alabama v. Peak, 252 Fed. 306.

17 Illinois v. Fletcher, 22 Fed. 776.

18 Virginia v. Felts, 133 Fed. 85. 19 State of Oregon v. Wood, 261 Fed. 975.

20 Ibid.

21 Ibid.

22 Virginia v. Bingham, 88 Fed. 561,

23 Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. ed. 386.

24 Virginia v. Paul, 148 U. S. 107, 116, 13 Sup. Ct. 536, 37 L. ed. 386.

25 Virginia v. Paul, 148 U. S. 107, 117, 13 Sup. Ct. 536, 37 L. ed. 386.