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is applicable alike to all persons, does not constitute such prejudice or local influence as will entitle a litigant to a removal of the cause to the Federal court, upon the alleged ground that he cannot obtain justice in any State court.2
1 Neale v. Foster, 31 Fed. Rep. 55.
§ 97 b. Restriction on right to remove under original act.—The provision in Rev. Stats., sec. 639, subd. 2, for the removal of a separable controversy, and the provision in the third subdivision of the same section, for the removal of causes on the ground of local prejudice, have no relation to each other. To warrant a removal under the third subdivision, itis not enough that there may be a separable controversy between parties having the necessary citizenship. The Act of 1875 did not change this subdivision. The provision of subdivision 2 as to separable controversies does not apply. The removal of a cause from a State court on account of prejudice or local influence, under the Act of 1867, as re-enacted in subdivision 3, sec. 639 Revised Statutes, could only be had when all the parties to the suit on one side are citizens of different states from those on the other; that the language of the Act of 1867, on which such decisions were based, having been copied into the Act of 1887, the same construction must be given to the latter act; that while the original complainants were the only parties plaintiff, there was clearly no right of removal on the part of the defendants or either of them; thatthe joinder of co-complainantina representative suit in no way changed the character of the suit, and did not confer upon the defendant the right to remove the suit.3 The said subdivision of the Revised Statutes, sec. 639, is repealed by sec. 6 of the Act of 1887; and that the later act is not unconstitutional, although by the removal the circuit court obtains jurisdiction of the entire cause. Where the plaintiff is a citizen of Minnesota, and the defendant is a corporation of Wisconsin doing business in Minnesota, the circuit court for the district of Minnesota has, under the Act of Congress of 1887, original jurisdiction of the controversy; when that question depends solely on the fact of the diverse citizenship of the
parties, the defendant may remove the case on the ground of local prejudice.
1 Cambria Iron Co. v. Ashburn, 118 U. S. 54; Am. Bible Soc. v. Grove, 101 U, S. 611.
2 Hancock v. Holbrook, 119 U.S. 586; Whelan v. N. Y. L. E. & W. R. Co. (Ohio) 35 Fed. Rep. 819; Myers v. Swann, 107 U. S. 546; Grover & B. S. M. Co. v. Florence S. M. Co., 85 U. S. 553; Vannevar v. Bryant, 88 U.S. 41; Am. Bible Soc. v. Price, 110 U.S. 61; Jefferson v. Driver, 117 U. S. 272; Gaines v. Fuentes, 92 U. S. 10.
3 Thouron v. East Tennessee V. & G. R. Co., 38 Fed. Rep. 673, distinguishing Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 819.
4 Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849; Malone v. Richmond etc. R. Co., 35 Fed Rep. 25.
5 Fales v. Chicago M. & St. P. R. Co., 32 Fed. Rep. 673, overruling Yuba Co. v. Pioneer Gold Min. Co., 32 Fed. Rep. 183; Short v. Chicago M. & St. P. R. Co., 34 Fed. Rep. 225.
$ 97 c. Whether prejudice or local influence act is repealed-Query — Whether the Act of 1867 has been repealed, or is still in force, is as yet undetermined. As to whether sub-section 3 of section 639 of the Revised Statutes was repealed by the Act of 1887, it has been held that the right of the plaintiff to remove still exists." Nor did the later act repeal so much of that sec. tion as is necessary to carry the provisions of said sub-sec. tion into effect. Nor did it change the practice where a defendant seeks to remove a cause on the ground of prej. udice or local influence.3 That it was not repealed seems apparent from the fact that the cases provided for by it were not provided for by the Act of 1875.4 The Act of March 3, 1887, purports to be amendatory of that of 1875, “and for other purposes.
If there be any ambiguity in a section of the United States Revised Stat. utes, resort may be had to the original statute from which the section was taken, to ascertain what, if any, change of phraseology there is, and whether such change should be construed as changing the law.6
Conflicting views. —That the act of March 3, 1987, section 2, repeals by implication sub-section 3 of the Revised Statutes, section 639, is held in the following cases.? While appeals by implication are not favored, it is well settled that, where two acts are not in all respects repugnant, if the latter covers the whole subject of the earlier, and embraces new provisions which plainly show that it was intended as a substitute for the first, it will operate as a repeal. The legislation of 1887, with respect to prej
udice and local influence, was intended to supersede entirely the Act of 1867, and to plant the matter upon a new basis, and to let the Act of 1887 take the place of that of 1867.9
1 Hills v. Richmond & D. R. Co., 33 Fed. Rep. 81; Fisk v. Henarie, 32 Fed. Req. 417; Speer, Rem. Causes, 72.
2 Baltimore etc. R. Co. v. Bates, 119 U. S. 464. 3 Fisk v. IIenarie, 35 Fed. Rep. 232.
4 Baltimore & 0. R. Co. v. Bates, 119 U. S. 464; National S. S. Co. v. Tugman, 106 U. S. 118; Speer, Rem. Causes, 27, 74; Brodhead v. Shoemaker (Ga.), 41 Fed. Rep. 518; Cope v. Cope, 137 U.S. 682; McCool v. Smith, 66 U. S. 45); Bowen v. Lease, 5 Hill, 221; Ex parte Yerger, 75 U.S. 85; Furman v. Nichol, 75 U. S. 44; United States v. Sixty-seven Packages, 58 U. S. 85;
Red Rock v. Henry, 106 U. S. 596; Wood v. United States, 41 U. S. 362; Chew Heong v. United States, 112 U. S. 513.
5 Fisk v. Henarie, 32 Fed. Rep. 420. 6 United States v. Lacher, 134 U. S. 624; 7 R. R. & Corp. L. J. 514,
7_Short v. Chicago etc. R. Co., 33 Fed. Rep. 114; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 813; Southworth v. Reid, 36 Fed. Rep. 451; Minnick v. Union Ins. Co., 40 Fel. Rep. 369. Contra, Fisk v. Henarie, 13 Sawyer, 38, 318. See King v. Cornall, 106 U. S. 396.
8 Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 849; Short v. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 114; Southworth v. Reid, 36 Fed. Rep. 451., See also Baltimore & 0. R Co. v. Bates, 119 U. S. 464; Ayers v. Watson, 113 U. S. 594; Holland v. Chambers, 110 Ú, S. 59; Hyde v. Ruble, 104 U. S. 407.
9 Short v. Chicago, M. & St P. R. Co., 34 Fed. Rep. 225; Dillon, Rem. Causes, 60; Canal & C. Sts. R. Co. v. Hart, 114 U. S. 654.
§ 97 d. General restrictions which do not apply under this clause. The restriction as to suits by assignees does not apply to this clause. The fact that Congress has not given original jurisdiction to the circuit court in cases of local prejudice does not affect its jurisdiction on removal by non-resident defendants. 2
1 Claflin v. Insurance Companies, 110 U.S. 81; Bell v. Noonan, 19 Fed. Rep. 225.
2 Whelan etc. v. York etc. R. Co. (Ohio), 35 Fed. Rep. 849. But see Thouron v. East Tenn. etc. R. Co., 38 Fed. Rep. 673.
897 e. Restriction as to amounts in controver. sy.-The right of a non-resident defendant to remove a cause on the ground of prejudice or local influence is confined to cases in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.1 The amount in controversy is not an element of removability of a suit on the ground of prejudice or local influence, under the act of 1888.2 Courts are in direct conflict
on the question whether or not, on motion to remand, the amount in dispute is to be determined by the plaintiff's demand, or by defendant's demand where he sets up a counter-claim.3 Although the sum sought to be recovered is less than $2,000, yet if the defendant interposes a counter-claim exceeding that sum, the suit is removable under the local prejudice clause of the Act of Congress of March 3, 1897.* The question whether a suit can be removed into the circuit court on the ground of local prejudice, under the Act of Congress of March 3, 1887, where it involves more than $500 or less than $2,000, has elicited conflicting opinions in the different circuits.5 A motion to remand a suit on the ground that the matter does not exceed the value of $2,000 has no merit, where the petition for removal alleges that the value is more than that sum, and there is nothing is the pleadings to show that it is less. 6
1 Bierbower v. Miller (Neb.), 9 L. R. A. 228; Malone v. Richmond etc. R. Co., 35 Fed. Rep. 025; Roraback v. Pennsylvania Co., 42 Fed. Rep. 420.
2 McDermott v. Chicago etc. R. Co. (Iowa), 38 Fed. Rep. 529; Fales v. Chicago etc. R. Co., 32 Fed Rep 673; Speer, Rem. Causes, secs. 35, 36.
3 Whelan v. New York etc. R. Co. (Ohio) 35 Fed. Rep. 849; Frishman v. Insurance Co , 41 Fed. Rep. 419. See Clarkson v. Manson, 4 Fe Rep. 257: Falls Wire Manuf. Co. v. Broderick, 6 Fed. Rep. 651; West v. Aurora 73 U. S. 139; Ryan v. Bindley, 68 U. S. 66; Hilton v. Dickinson, 108 U. S. 165; Bradstreet Co. v. Higgias, 112 U. S. 227; New York I. & P. Co.v. Mil buru G. & M. Co., 35 Fed. Rep. 225.
4 Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Rep. 578.
5 Frishman v. Insurance Co., 41 Fed. Rep. 449. See Clarkson v. Manson, 43 Fed. Rep. 257.
6 Langdon v. Hillside Coal & Iron Co., 41 Fed. Rep. 609.
§ 97 f. Plaintiff no right to remove.-A party who has brought an action in the court of his own State against a citizen of another State cannot remove the action to the United States circuit court, under the Act of March 2, 1867.1 And by the fourth clause of the Act of March 3, 1887, the right of removal is restricted to the defendant. But a non-resident plaintiff suing in the State court, against whom a counter-claim is interposed, is a defendant within the meaning of the local prejudice clause of the Act of Congress of March 3, 1887, limiting the right of removal to a defendant who is a citizen of another State than that in which suit is brought.3 Under Act of 1875, sec. 3 of the Act of March 3, 1875, does not permit a citi.
zen of the State in which suit is brought to make the application for renoval. 4 Under Act of 1887, plaintiffs have no right of removal under the Act of March 3, 1887, on the ground of local prejudice."
1 Hurst v. Western & A. R. Co., 93 U, S. 71.
2 Canal H. S. R. Co. v. Hart, 114 U. S. 654; Spear, Rem. Causes, 73, 74.
3 Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Rep. 578; Walcott v. Watson, 46 Fed. Rep. 529.
4 Aldrich v. Crouch, 10 Fed. Rep. 315; Babbett v. Clark, 103 U S. 606; Gurnee v. Brunswick County, 1 IIughes, 270; Murray v. Holden, 3 Fed. Rep. 740; Forest v. Keeler, 17 Blatchf. 522; Kerting v. American Oleograph Co., 10 Fed. Rep. 17.
5 Tullock v. Webster County, 40 Fed. Rep. 706. See, however, Carson & R. Lumber Co. v. 1. oltzclaw, 39 Fed. Rep. 885.
§ 97 g. The right based on adverse citizenship. -The right to remove does not exist where the controversy is between a citizen of the State wherein suit is pending on the one side and a citizen of the same State and a citizen of another State on the other side. That diversity of citizenship must have existed at the time the action was brought. A railroad company incorporated in a State in whose courts it is sued by a citizen thereof cannot obtain a removal into the United States circuit court, although it was previously incorporated in another State.3 The party in whom a cause of action is vested as a trustee is the one whose citizenship is to be regarded, instead of those beneficially interested.4. A cause to which an alien is a party cannot be removed, under the local prejudice clause of the Removal Act of 1887.- A resident alien defendant has no right to a removal of the cause on the ground that he is an alien. 6 A defendant sued in a court of his own State cannot remove the cause into a Federal court, under the Act of 1887, on the ground of citizenship.? All necessary parties on side of plaintiff must be citizens of the State in which suit is brought to permit a removal on this ground. And where part of the defendants were citizens of the same State as the plaintiff, and the controversy is not severable, it cannot be removed on the ground of prejudice or local influence. 9
1 Anderson v. Bowers, 43 Fed. Rep. 321; Gaines v. Fuentes, 93 U. S. 10.
2 Seddon v. Virginia T. & C. S. & I. Co. (Va.), 36 Fed Rep. 6. 3 Memphis & C. R. Co. v. Alabama, 107 U. S. 581.