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any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or is commenced against any officer of the United States, or other person on account of any act done under the provisions of Title XXVI, “THE ELECTIVE FRANCHISE,” or on account of any right, title or authority claimed by such officer or other person under any of the said provisions, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit 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 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 circuit 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 circuit 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, subpæna, petition or another process except capias, the clerk of the circuit court shall issue a writ of certiorari to the State court, requiring it to send to the circuit court the record and 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 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 circuit court, and any further proceedings, trial or judgment therein in the State court shall be void. And if the defendant in the suit or prosecution be in actual custody or 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 canse according to law and the order of the circuit 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 circuit court that no copy of the record and proceedings therein in the State court can be obtained, the circuit 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 circuit court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against hiin, with costs for the defendant.
2 Mar., 1833, c. 57, s. 3, v. 4, p. 633; 13 July, 1866, c. 184, s. 67, v. 14, p. 171; 28 Feb., 1871, c. 99, s. 16, v. 16, p. 438; 3 Mar., 1875, c. 130, s. 8, v. 18, p. 401.
This provision held not to be in conflict with the constitution. Tennessee 0. Davis, 100 U. S., 725. In this case the defendant was indicted for murder. In his petition for a removal of the prosecution from the State court to the circuit court of the United States, “he stated that although indicted for murder no murder was committed; that the killing was done in necessary self-defense, to save his own life; that at the time the alleged act for which he was indicted was committed, he was, and still is, an officer of the United States, to-wit: a deputy collector of internal revenue; that the act for which he was indicted was performed in his own necessary self-defense while engaged in the discharge of his duties as deputy collector, and while acting by and under the authority of the internal revenue laws of the Uni. ted States; that what he did was done under and by right of his said office; that it was his duty to seize illicit distilleries and the apparatus used for the illicit and unlawful distillation of spirits; and that wbile so attempting to enforce said laws, as deputy collector aforesaid, he was assaulted and fired upon by a number of armed men, and in defense of his life he returned
the fire, which is the killing mentioned in the indictment." It was held that the petition was in conformity with the statute, and that on being filed the prosecution was removed to the circuit court of the United States, and that court had jurisdiction of it.
The statute requires that it sball appear from the petition that the officer was sued on account of acts done by him acting under color of his office in the cases named. Abranches v. Schell, 4 Blatch., 257.
The post office laws of the United States are revenue laws, within the meaning of the acts providing for the removal of causes, where a suit is brought against an officer for an act done under the revenue laws of the United States. An action against a postmaster, brought in a State court for an alleged wrongful refusal to deliver a letter, may be removed to the circuit court. Warner v. Foroler 4 Blatch., 311 (1880); United States v. Bromley, 12 How., 88.
But a suit against an assistant treasurer of the United States to recover the value of bonds alleged to be wrongfully retained by him, is not a suit that can be thus removed. Victor v. Cisco, 5 Blatch., 128. Nor can a suit be thus removed commenced in a state court against a commissioner of the circuit court of the United States, to recover back money alleged to have been illegally exacted by him as costs and fees. Benchley 4. Gilbert, 8 Blatch., 147.
For a construction of the acts of congress for which this has been substituted, see City of Philadelphia v. The Collector, 5 Wall., 720; Hornthall v. The Collector, 9 Wall., 560; The Assessor v. Osbornes, Id., 567; holding, also, that suits brought during the existence of a statute fall with its repeal, unless provision is made for such suits.
It was held in Bultner v. Miller, 1 Woods, C. C., 620 (1871), that an action brought in a State court to recover damages for alleged slanderous words spoken by a United States collector of customs, while in the discharge of his official duty, and explanatory of it, could be removed under the act of 1833. For construction of former acts now embraced in $ 643, see Peyton v. Bliss, 1 Woolw., C. C., 170.
Finding of facts.—The finding of the circuit courts upon a question of fact, where it has been properly submitted to the court without a jury, cannot be reviewed in the Supreme Court on error. United States v. Dawson, 101 U. S., 569.
Indictment in certain cases.--The circuit courts have jurisdiction of indictments under sections 5515 and 5522 of the Revised Statutes, which provide for punishment of officers of election for violation of duty and the punishment of parties for interfering with supervisors of election, or inarshals or deputies; and sections 2011, 2012, 2016, 2017, 2021, 2022, of the Revised Statutes which authorize the circuit courts to appoint supervisors of election and the marshal and special deputies to aid and assist them; and a sentence in pursuance of a verdict of guilty is lawful cause of imprisonment, with which the Supreme Court will not interfere on habeas corpus. Ex parte Siebold, 100 U. S., 371; see, also, Ex parte Lange, 18 Walli, 163;. Ex parte Parks, 93, U. S., 18.
Jurisdiction in special cases. The jurisdiction of the circuit court, under the provisions of section 2010, of the Revised Statutes, relating to the elective franchise, and providing a remedy for deprivation of certain offices, by reason of a denial of certain parties of the right to vote, is limited to those actions in which the sole question touching the title to office arises out of the denial to citizens of the right to vote on account of their race, color or previous condition of servitude; and the section gives no jurisdiction over a case brought to enable a party physically to regain an office to which he had a title established by the election, and into which he had been inducted, but from which he had been subsequently ejected. Johnson v. Jumel, 3 Woods.,
Sec. 644. Removal of suits by aliens in a particular case.—Whenever a personal action 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 circuit 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.
30 Mar., 1872, c. 72, v. 17, p. 44; 3 Mar., 1875, c. 137, s. 2, v. 18, p. 471. See act of March 3, 1875, post.
SEC. 645. When copies of records are refused by clerk of State court.-—In any case where a party is entitled to copies of the records and proceedings in any suit, or prosecution in a State court, to be used in any court of the United States, if the clerk of said State court, upon demand and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such record and proceedings are needed may, on proof by affidavit that the clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by aftidavit, or otherwise, as the circumstances of the case may require and allow; and, thereupon, such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court. 2 Mar., 1833, c. 57, s. 4. p. 634; 28 Feb., 1871, c. 99, s. 17, v. 16, p. 439.
SEC. 646. Attachments, injunctions, and indemnity bonds to remain in force after removal.- When a suit is removed for trial from a State court to a circuit court, as provided in the foregoing sections, any attachment of the goods or estate of the defendant by the original process shall hold the same to answer the final judgment, in the same manner as by the laws of such State they would have been held to answer final judgment had it been rendered by the court in which the suit was commenced; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States court into which the cause is removed; and any bond of indemnity or other obligation, given by the plaintiff upon the issuing or granting of any attachment, writ of injunction, or other restraining process, against the defendant petitioning for the removal of the cause, shall also continue in full force and may be prosecuted by the defendant and made available for his indemnity in case the attaclıment, injunction, or other restraining process be set aside or dissolved, or judgment he rendered in his favor, in the same manner, and with the same effect as if such attachment, injunction, or other restraining process had been granted, and such bond had been originally filed or given in such State court.
24 Sept., 1789, c. 20, s. 12, v. 1, p. 79; 27 July, 1866, c. 288, v. 14, p. 306; 2 Mar., 1867, c. 196, v. 14, p. 558; 27 July, 1868, c. 255, s. 2, v. 15, p. 227; 9 April, 1866, c. 31, s. 3, v. 14, p. 27; 3 Mar., 1863, c. 81, s. 5, v. 12, p. 756; 11 May, 1866, c. 80, ss. 3, 5, v. 14, p. 46; 5 Feb., 1867, c. 27, v. 14, p. 385; 2 Mar., 1833, c. 57, s. 3, v. 4, p. 633; 13 July, 1866, c. 184, s. 67, v. 14, p. 171; 28 Feb., 1871, c. 99, s. 16, v. 16, pp. 438, 439.
The validity, and constitutionality of acts of congress, can be urged in the circuit court after removal as well as the State courts, and on like grounds; the question cannot be determined on motion, but should be met in the ordinary way on trial, by demurrer or otherwise. Lamar v. Dana, 10 Blatch., 34 (1872.)