CASES . ARGUED AND DETERMINED IN TJDII
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICf COURTS.
CITY OF DETROIT v. DETROIT OITY RY. 00. et Ill. (Circuit Oourt, E. D. M1ch1gan. January 5, 1893.)
L
REHOVAL OF CAUSES-LOCAL PREJUDICE-PARTIES.
In a suit by the city ot Detroit as sole plalntitf against a street-rallWlQ' company of that city and others, some ot whom are citizens of the state, praying "that the franchise be decreed to expire," and the company compelled to vacate the streets, a nonresident mortgagee ot the company Is entitled, under Act Aug. 13, 1888, § 2, (25 St. p. 435,) to remove the cause to a federal court when local prejudice Is shown. Whelan T. RaUroad Co., 35 Fed. Rep. 849, followed
.. SAME-LoCAL PREJUDICE.
The right of removal to a tederal court on the ground ot local prejudice extends not only to cases where such prejudice would affect the jury, but also to those In which the decisions ot the judge as to questions ot law or fact may be affected thereby. Burgess v. Seligman, 2 Sup. Ot. Rep. 10, 107 U. S. 33, followed. Under the law of Michigan, a jecree by default against a nonresident, brought in by publication only, can be set aside by him as a matter ot right. Held, that a nonresident respondent, brought In by publicatlon,against whom an orner pro confesso before decree was entered, but was afterwarns set aside, could file its petition for removal to a federal court under Act March 3, 1875, at the term at which a hearing could first be had on its answer. McDonald v. McDonald, 7 N. W. Rep. 230, and Harter v. Kernocban, 103 U. S. 562, followed By the law of Michigan, where a respondent Is served by pUblication, and Is misnamed as "The Washington Trust Co.," the true name- being "The Washington Trust 00. of the City of New York," an order pro contesso against such absent respondent is void, and there can be no trial on such order so as to bar its right ot removal to a tederal court, under Act March 3, 1875, providing that such removal must be before the trial of the suit. Guarantee Trust & Sate-Deposit Co.v. Green Oove Springs & M. RCo., 11 Sup. Ct. Rep. 512, 139 U. S. 137, tollowed. Chancery ntle 27 of the. clreuit courts of Michigan giVeil a complainant 20 days to except against the answer, at the end ot which time, it no caption 18 taken, the answer is deemed su1Ilcient. Rule 45 gives a compla1nant 20 days atter the answer is deemed su1Iic1ent to 1lle & PJ!.eral
·. SAME-PETITION FOR REMOVAL-TIME OF FILING.
4.
SAME.
... SAxE.
v.54I'.no.l-1
2
FEDERAL REPORTER,
voL 54.
repllcation putting the case at issue. If no repllcation Is ftled, the cause stands for hearing on blll and llJ),Swer.Hel4 that, where a. new term would begin before the 40 n .. the ftllng of the answer, the respondent may at such new term remove the cause to a federal court on the ground of local prejudice, under Act Aug. 13, 1888, § 2, (25 St. p. 435,) although the have, set the, ,qase, down for hearing on blll and answer atLiliel.jWk)t term, ifu!'v1ngits ,rigb.t to exceptions and a repllcation, no such waiver having been actually made. &. SAMB.
" ., Under Act Aug. 13, 1888, I 2, (25 St. p. 435,) a cause may be removed to a federal court on the ground of local prejudice at any time before the first trial· ts" llct<ual,ly alijlough snch trial ,might have been held daM or 'tbeapPllctitioiI tor remov'ltl. FlSk v. Henarie, 12 SUp. at. Rep. /1 7. SAlIB-FoRM oj"'AFFi:bAVIT. ' " " ' " .' '",' , An order for removal of a cause to a federal court is Interlocutory In Its nature, and the atIldavlt need not state that the facts are sworn to of the personal knowledge of the atIlant,but it is sufficient that they are of Ws oplnlon and bellef, if he is a credible person, and the facts on which such bellef,is bll,8ed l;lre 8. SAMlll-!Molt :PR:tl:JUritcli. I " On an aPIlJ,;i9ll-ti{)nby, ,11 ,9f a !ltr,eet-railway company for reniov\l1 of Ii stiitagaffiSt: 'the compRny t9' a federal court, an atIldavit by the applicant's agent, stating, t,'nat there is prejudice and local In, ".11,u, riot a, (lQ"",m, P8J,lY . ' ':, received, mu,',6h public sympa. to protect the employes and Ilroperty, Bfllie COmpany that apubllo meeting, at· of all cmsse!!!Wd by themunlcipll! orocers, has advised auit; and that who would try the case In sufficient ground
, ' T4e right .:If ren.;tov81,to CQmt.'c>n the ground of local prejudice ,,;exists ,appUcant, if, defeated In the trial C()urt, has the right ofappee1, to, a ,Iltate .supreme court, lIS to, which no local, prejudice is 81-
,
10.
The fact that a decision by' state judges ,adver&ely to a party would ex, pose them ,to local crit1elstnaJld III will, and endanger their chances ot re, election., is ,sufficient: to: show that such party will not be 'able to obtain justice In SQ,Ch court within the mea.n1nC of Act Aug. 18, 1888, I 2, (25 St. ,p. 435,) regulating ,removals from state to federal courts,irrespective ot the, fact that the state judges would prc;>bably rlse above such local prejudice and ,render an entirely disinterested dec1ston. ' '
S.u.rll:-STATE COURT-INABILITY TO GBT JUSTIOE.
In Equity. Bill in the circuit court of Wayne county, Mich., by the city of ,Detroit a.gainat, the, Detroit, City Railway Company, the J)etroit Company,SidneyD. Miller and William K.;. Muir, trustees, and, the j WMhingtonTrust Company Of the Cityof':NewYoI'k. The, Tntst Company of the City of New; YQrk the to the fooeralclrcuit court, arid it is J;1Owon moiiion to rema.nd. Denied. Charles A. Kent and Benton Hanchett" for complainant. C. Donnelly, Ashley and Otto KirchIler,: fordefendarits. J;. BeforeTM!'T,Oireuit J'I1dge,'alId' SEVERENS and SWAN, District Judges. '. I
CITY OF DETROI'll ft. DETROIT CITY BY. 00.
a
,This'is a 'motion to' teinitD.d It sUit in equity,which 'has been;reinMed here 'from the ,circuit court of Way11e'oountYi 'Mteh. &'Vet1nents'bfthe"'billoi 1lIed 'by the eity' Of Detroit, stated::' genetaJIy, ttrethat, the Det11'lJit Citizens' Street Railway is in the possession 'aM' enjoyment·or,lt1Tanchise to operate street railways 'ina ·nurilberof .the ,streets: ()f the that by virtue of a limitation· of the,constitution of the state of Michigan the franchise will expire May 9, 1893; that theraiIway company not expil'e"until'1909; that the city claims that three franchise wishes to sell the franchise at once, so aB:to enable the purchaser to make neoo:lSarypreparations to operate railwayS in May, 1893" but that the claim of the company prevents the . The prayer of the petition is that the franchise of the company be decreed to expire as claimed by complainant, and that a mandatory injlinction issue, compelling the defendant company to vacate the streets with its tracks, etc., in May, 1893. The Detroit City,RaUway, upon which the .franchise was originally conferred, and from which, in 1891, by mesne conveyance, the present· company obtlai'ned it, is made a. party. Two deeds of trust conveying this franchise Were given,-"the one by the Detroit City, Railway, in 1890,. to,;Miller and Muir, trustees, to secure bonds amounting to $1,000,000.; and the other by the Detroit Citizens'Street-Railway Company to the Washington Company of the city of New York, to secure $2;000,000 of bonds. The trustees under the deeds of trust are made parties to the bill. .. , ' . ' The bill wasllled Mar,ch' 15, 1892. An ordel' for Ilervice by publication on the propel' affidavit was taken the Washington Trust Company March 22d. All the defendants except the trust company were personally served, their appearancea were tered, and their sE!parate answers filed. The answers set forth additionaldetaUs in the history of the franchise$ enjoyed by the railway company, deny that they will expire in May, 1893, and aver facts which are said to estop the complainant· from claiming as in its bill. OJ' August 13th, proof ,.f publication against the Washington Trust Company was made. The notice published advised the Washington Truat Company of the pendency of a suit described as a suit of the City of Detroit against the City Railway Company, the Detroit Citizens'Street-Railway Company, Sidney D. 'Miller and William K. Muir,. trustees, and the Washington Trust Company. An order pro confesso was taken on the saDlC day against the WMhington Trust Company. On August 19, 1892, the following Elntry was made in the case:
will
saId cause."
"It is hereby stipulated and agreed that the default heretofore entered in this cause against the Wa,shington Trust ComplJJlY of the City of New y"ork, one of the defendants herein,' for nonappOOrance in sald cause, may be set aside, and that salddefendant may answer to the bill of complaint tiled in
.
On the same day the allilwer was filed. The corporate name of the trust company is ''The Washingto:n Trust Company of '. the Clity of New York," the words "of the City of New York" being a. part thereof. On the 26th day' of August the solicitor for the com· plainant served the solicitor for the trust compa.nywith notice tba.t
vol 54.
be broQght on.tor.' on. bID and answer at of court, which would begin September 13th. On 19, 1892, before any hearing was b8.d in accordance with the company presented a petition to Judge Swan, of this court, for the removal of :the suit on the groUlld that by rear son ofp:fejQdice and local influence the petitioner could not obtain justice ill· the Wayne circuit [email protected], or in any other court in the state to which, for such cause, the case could be removed. The petition the jurisdictional facts, and refers to an affidavit accompanying it, to make it appear, to the court that its averment in regard to prejudice and local inftuence is well founded. Upon the petitio,n l\;J;!:d affidavit. Judge Swan made the order removing the ,8.9 prayed. Subsequently a motion to remand the cause was made' by; the solicitor f()!l" the. city of Detroit on the following grounds: "(1) The cause was not sU:bject to removal under the statutes of the United States applicable thereto. (2) The cause was not removed within the time by said statutes; it was nQtremoved until after the first term at which it C9uld have tried. (3) The affidavit and petition upon which such Qrder' was based do not contain any legal evidence of the facts therein stated. (4) 'The facts stated in said affidavit and petition, if true, do not offer any evidence that SlUd'Washington Trust Company, from prejudice or local was not ab,le, to obtwn justice in said circuit court for the county !J1:<iliancery."
We shaJIcoliSider these grouhdsin order. 1. The act under which this removal is to be sustained, if at all, was plll1lBOO AUgust 13, .1888, (25 St. c. 866, p. 433,) to correct the enro1fm.ent of an act a:pproved March 3, 1887, (24 St. Co 373, p. 552.) is an amendment of the act of March 3, 1875, determining the. jUiis,4iction of circuit courts of the United States, and regulating the remoral of causee from state courts. By the first section the original jUrisdiction of courts of the United States is defined. Part of the second section is as folloWs: "That in am"l suit of ac1vll IUl.ture in law or in equity arising under the constitution or 1aws of the United States or treaties made or which shall be mnde undertMir authority, of which the circuit courts of the United States are' given original jurisdiction by the prooeding section, which may now be pending or which may hereafter be brought· in any state court, may be removed by the ,defendant or defendants therein to the circult court of the United States fo),' the proper district. Any other sult of a civil nature at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending or which may hereafter be brought in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants tb,erein, nonresidents of that And when in any suit mentioned in this section there shall'be a controversy which is Wholly betweencltizens of different states, and' which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove 'said suit into the circuit· court of the United States for the proper district. And where a suit is now pending or may hereafter be brQught in any stl+tecow-t, in 'fhich there .is a controversy between a citizen of the state in WhiCh.. the suit is anl'l. a citizen of another state, any defendant being such,cltlzliln of anotherliltatetnay' remove such suit Into the circuit court of the United· States for the proper:district at any time before the trial thereof when. it, shall be made to appear to such circuit court that from prejudice or wUlnot be able to obt:a.in justice in such state
CITY OF DETROIT
v.
DETROIT CITY RY. CO.
5
court, or any other state court to which the defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause."
It has been held by the supreme court of the United States in Re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141, that only
$2,000 or more can be removed for local prejudice. suits The petition for removal shows that the necessary amount is involved. It has been held by Judge Jackson in Whelan v. Railroad Co., 35 Fed. Rep. 849, and in Thouron v. Railway Co., 38 Fed. Rep. 673, that under this act, where all the plaintiffs in a state court are citizens of the state where suit is brought, a single defendant, being a. citizen of another state, may remove the case into the proper United States circuit court for prejudice and local influence, even though he is united as codefendant with citizens of the same state as the plaintiffs, and even though there is no separable controversy between the plaintiffs and the nonresident removing defendant. We undersqtnd the chief justice in the case of Wilder v. Iron Co., 46 Fed. Rep. 676, to concede and assume the correctness of the view of Judge Jackson as given above. It follows that, as the city of Detroit, the sole plaintiff here, is a citizen of Michigan, and the trust company, one of the defendants, is a citizen of New York, the order of removal, so far as the citizenstrlp of the parties is concerned, was authorized by filtatute. Counsel for complainant do not seriously dispute the correctness of the foregoing views, but the ground which they vigorously press upon the court for excluding this from the cases included within the local prejudice clause is very different. They say that the only question at issue in this suit is one of law, and that questions only questions of law are not removable under the statute for prejudice and local influence. It is conceded that the questions on the bill and answer involve simply the construction of the constitution of the state of Michigan, and the laws and ordinances passed thereunder, and are purely of law. The contention of counsel is that the prejudice and local influence which congress had in mind was that which would operate upon a jury, and that it never could have supposed that a state judge would be affected thereby in deciding questions of law. We are clear that this claim of counsel cannot be supported. The local prejudice clause under discussion begins with the words, "And where a suit is now pending, or which may her.eafter be brought," etc. The proper limitation to be put on the meaning of this phrase has been authoritatively stated by the supreme court in the case of In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141, where Mr. Justice Bradley said: "The fourth clause [the one in question] describes only the special cases comprised in the preceding clauses. The initial words 'and where' are equIvalent to the phrase 'and when in any such case.' In effect, they are tanta· mount to the beginning words of the third clause, namely, 'and when in any suit mentioned in this section.'''
The suits mentioned in this section are suits at law and in equity. It necessarily follows, therefore, that the local prejudice clause relates to both suits at law and in equity. The words of the claUS8
6
vol. 54.
"at any time before the trial thereof," used in fttingthe time With· in which the remo-val on account of prejudice or locMinftnence can be made, are relied on as indicating that only suitS at law can be relll{)ved;: because the word "trisJ."iB properly used only with reference to; .ucb snits. This view is TMuted by the foregoing language of Bradley, and by the' further fact that under the removal act ,of 1875, which, it is conceded, permitted the removal of causes, in equity as well as at la:w, 'the same words are used to fix a,tiine'within which removals n:tl.dertIlat act could bemade. When the words "trial" and ''hearing''',are'used as in the removal acts of 1866 and 1861. the one refers to a trial at common law and the other to a hearing on the meritsiri chancery, (Car Co.v. Speck; 113 U·. R84..86 1 5 Sup. Ct :Rep. 374j) but when the word "trial''" alone ·is, used. it includes both trial at common law and hearing in chancery as in the act of 1875. If the· prejudice and local influence clause applies to suits in equity, theuf:oongress must have intended to provide against the prejudice of jUdges as well as of juries, for there' are no juries in equity. The contention on behalf of compla.inant is, therefore, reduced to a claiJ;n. that it was the intention of congress to save suitors from injustice by a judge, in the determination of issues of fact, but not againSt injustice done by him in deciding issues of law. We do not see why a judge, if influenced improperly a.gainst a party, 'may not yield to such inflnence as well in' his decisions of legal questions as in his concllllilions of fact. The sole reason of the framers of the constitution for including in the 'jndicial power of the United States the right to decide con· troversies between citizens of different states was a fear of the operation of prejudiCe or local influence in the tribunals of one state 'against a citizen of another. It was thereby intended in the adm.iIlistration, of justice, both in determining facts and in deciding the law, to secure a judiciary independent of local in· fluences aild· sUlToundings. Recognizing this intention on the part of the framel's of the constitution, the federal courts exercise an independence of judgment in deciding many questions of state law, and under some circumstances decline to follow the state courts. In the leading ease of Burgess v. Seligman, 107 U. S. 33, 2 Sup.· at. .Rep. 21, Mr. Justice Bradley, in discussing the power and duties of the federal courts in administering state laws, spoke for the supreme court as follows: ' "The federal courts have an independent jurisdiction in the administration of state laws,. ep.ordlnate not subordinate, to, that, of the statecourt8, and are bound to exercise their own judgment as to the meaning and effect of these laws. The existence of the two co-ordinate jurlsdictions in the same tert'itory is pectlliar, and the result would be inconvenient but for the ex· ercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain· rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be W'/.'ong to disturb. This is ('specially trne with regard to the law of real estRteand the constrnctionof state constitutions and statutes. Such established Mils are often regarded by the federal courts, no less than by the state oourtBthemselves, as authoritative declarations of what the law is;
CITY OF DETROIT II. DETROIT CITY RY. CO.
7
but where the law has not been tht'lS settled It Is the right and duty of the tederal courts to exercise their own judgment, as they also always do with reference to the doctrines of commercial law and general jurisprudence. So when contractll and transactions have been entered into, and rights have accrued thereon in a particular state of the decisions, or when'there is no decision ot the state tribun.aI, the federal courts properIyclaim the right to adopt their own interpretation ot the law applicable to the case, although a different interpretation may be adopted in the state courts after such rights have accrued. But eVen in such cases, for the sake of harmony, and to avoid contusion, the federal courts 'will lean towards an agreement of views with the state courts if the question seems to them balatlced wit1ldoubt. Acting on these principles, tounded. as .they are on comity and good sense, the courts of the United States, without sacriflcing their own dignity as independent tribunals, endeavor to avoid, and in most Oases do avoid, any unseemly conflicts with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws ot the states in controversies. between citizens of ditrerent states was to Institute independent tribunals,.which It might.be supposed would be unatrected by local and sectional views, it wortld be a ,derelictionot their duty not to exercise an independent judgment in cases not f\)recJ.osed by previous adjudication."
. We have no better evidence than this that one of the objects of the makers of the. constitution, in conferring judicial power in controversies between citizens of different states, was to a.void pos· sible injustice to nonresident litigants from the influence of local prejudice on decisions by state courtB on pure questions of law. But it is said we are considering a statute, and not the constitution. That is true, but the reason for conferring a constitutional power, and its scope and object, are of controlling importance in construing a statute passed in the exercise of the power.. In eases whmre the right to sue in the federaJ courts, or the right to remove easelS to them, is made to depend only on the fact of diverse citizenship, congress merely assumes the existence of local prejudice, and proagainst its dangers to nonresidents, without regard to the actual fact, while in the clause under discussion, congress puts on him who would enjoy its benefit the burden of an affirmative showing. But in either case the evil sought to be avoided by the act of congress was the same as that which led the makers of the constitution to confer the power to pass the act,-possible injustice to nonresident litigants from prejudiced opinions of law as well as from prejudiced conclusions of fact. Neither authority nor federal statute has been cited which makes the distinction between questions of law and questions of fact contended for. If it was the intention of congress to so limit the right of removal, it could have expressed itself in language not to be mistaken, and would not have left the limitation to be inferred from an argumentative construction, which finds no basis either in the words used or in the reason of the provision. 2. The second objectiOOl to the order of removal is that the removal was not in time. The. statute provides tha.t the petition for removal in a proper cause shall be filed "at any time before the trial thereof." It is said that the .supreme c<>urt has decided in Fisk v. Henarie, 142 U. S. 459, 12 Sup.Ct. Rep. 207, that the time for removal. this act is the same as that in the act of 1875, a.nd that, under the act of 1875 the petition for removal was required
&
to be filed before or at the term at which the cause could first be tried, and before the trial thereof. Conceding for the purpose of the that the supreme. court has so decided, we are neverof the opinion that the petition for removal in this case was in time. The petition for removal was filed on the 19th day of Oetober, .in ·theSeptember term., which began on 'the 13th of Septembel'i .. '.rhe,appearance of the trust company was required, by the and the notice, to be at the April term, on July 220.' Upon the 13th of August an order pro confesso was taken trust company on proof of publication and in default of its appearance. Subsequently, on August 19th, the order pro con· fesso by stipulation set aside,and the trust company was allowed to file it.$ answer. The argument on behalf of the city is that, as a decree might have been taken at once on this order pro confesso against the trust company upon the complainant's making the necessary proofs, this would have been a trial on the merits, and therefore a. trial eould have been had in the April term. It would follow from this tlLat the petition for removal Shooid have been filed at the April term, and, as filed, was too late. If the order pro confesso had been taken on a personal and actual service, the argument would be unanswerable, for it is clear that generally a hearing on a default is a trial, within the meaning of the removal act of 1875. McCallon "v. Waterman, 1 Flip. 651. And it is also clear that under the act of 1875 It postponement of the triaJ. by stipulation between eounsel beyond a term when either party QOuld demand a trial did not en· large the time of removal beyond the first possible trial term. Babbitt "v. Clark, 103 U. S; 612. Under the circumstances of this case, the answer to the argumenl is twofold: First. Under the Jaws of Michigan, a decree by default against a nonresident brought in by publication only, can be set aside by such nonresident as a matter of right on payment of costs, and his right to answer the complainant's bill and to have a hearing on the merits is absolute. . McDonald v. McDonald, 45· Mich. 44, 7. N. W. Rep. 230. A fortiori, it. would seem that such a nonresident is entitled to have an order pro confesso before decree set aside, and to file an answer to the bill. Under the act of 1875, a nonresi· dent against whom a decree by default had been rendered on service by publication, and on whose application within a prescribed time agreeably to the laws of the state, a decree was set lUlide, and his answer filed, WM held entitled to file his petition for removal at the term at which the hearing could first be had on his answer. Harter v. Kernochan, 103 U. S. 562. It would seem to follow that, as the trust company in this case as a matter of right could have had the order pro confesso set aside, and it was set Mide, the first trial term within which it was required to file its petition for removal under the requirements of the act of 1875 Was the term at which a hearing could be had on its answer. Second. There could have been no trial on· the order pro confesso, because that order was void. The order could olily be valid in case all the steps required by the statute of Michigan in summoning an absent defendaD.t had been literally and exactly complied with. See Colton v. Rupert,· 60 Mich.
",as
CITY OF DETROIT V. DETROIT CITY RY. CO.
9
318, 27 N. W. Rep. 520; Guarantee Trust & Safe Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 11 Sup. Ct. Rep. 512. One of the most im"JX)rtant requisites of a service by publication is that it shall correctly state the parties to the suit in which the defendant is summoned, and that it shall correctly state the name of the defendant. In the case of Colton v. Rupert, 60 Mich. 318, 27 N. W. Rep. 520, the suit was by Garrett B. Hunt and Henry S. Cunningham against Palmer Colton, and the defendant, a nonresident, was sought to be brought in by publication. In three of the publications the name of the first complainant was printed "Grant" instead of "Garrett." aa contained in the order and in the bill of com· plaint. It was held by the supreme court of Michigan that the service was void. See, also, Entrekin v. Chambers, 11 Kan. 368; Magoffin v. Mandaville, 28 Miss. 354; Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. Rep. 44; Whelen v. Weaver, 93 Mo. 430, 6 S. W. Rep. 220; McRee v. Brown, 45 Tex. 503. In the present case the name of the first defendant sued and as given in the order was the "Detroit Oity Railway." As published, it was "The City Railway," which does not correctly give the corporate name of the company intended to be sued. Again, the name of the defendant, as given in the bill of complaint, was the "Washington Trust Company of the City of New York," and the order of publication was against "The Waahington Trust Company," and this was the name in the notice published. The real name of the defendant is "The Washington Trust Company of the City of New York," and as such it is entitled to be sued. The service against it under the name of "The Washington Trust Company" cannot be regarded aa valid. The importance attached to corporate names in Michigan is sufficiently shown in the case of People v. Oakland Co. Bank, 1 Doug. (Mich.) 282, where it waa held that an act of the legislature repealing the charter of the Bank of Oakland County could not be considered to be the repeal of the charter of the president, directors, and company of the Oakland County Bank It is quite true that by coming in with im answer the trust company waived all defects in the service, and could not now be heard to object that it is not properly in court. That, however, is aside from the point we are considering, which is whether, when the order pro confesso was taken, the trust company was then before the court, so as to make a default decree against it possible. If it was not legally served, then it was not in court, and there could have been no trial of its case until after it had filed its answer. For these reasons the appearance of the trustcOnipany must be regarded as voluntary, and the question whether, by an order pro confesso, the right of a defendant to remove for local prejudice is cut off, is not in the case. The answer of the trust company was filed on the 19th of August. Chancery rule No. 27 of the circuit courts of Michigan gives the complainant 20 days in which to allege exceptions against the answer, at which time, if no exceptions are filed, the answer is deemed sufficient. By chancery rule No. 45, 20 days after the answer is deemed sufficient· are ¢.ven to the complainant to file a general replication putting the case at issue. If no replication is filed the cause stands
10
for answer·...Forty days from:tb.e 19th of brings US to the 28th of. September,-15 days after the beginning of term. The case could not have been regularly tried before the 28th of September as against the trust company, the removinll defendant. It is said that the complainant might have set the case down for hearing on bill and answer, waiv· ing its right to allege exceptiollS or to :tile tlo replication, and therefore the caUlile could have been tried before the 13th of September, in the April term. 'It is sufficient answer to claim to say that the complainant did not waive its right not to have a hearing on bill and answeJ;' until after the beginning of the September term. As, on the one hand, a waiver of either party under the act of 1875 could not postppne the time at which a cause could first be tried for the purpose of removal under that act, so, clearly, the possible waiver of either party, not in fact made, could not be construed to advance the time of trial '1:10 as. to defeat the right of removal before the cause could regularly"e tried. It is true that on the 26th of August the complainant: notice. pnthe defendants, stating that the case would be bl'Ought On forbearing on bill and answer at the September term. . certainly not a waiver of the right of complainant to delay a hearing until the September term. The petition for removal was :filed at. the September term, and before the trial of the cause. It therefore follows that it was in time in any view which may be taken of the holding· of the supreme court in Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. Rep. 207. In our opinion, however, the decision of the supreme court in Fisk v. Henane is not to be given the meaning contended for by counsel for the complainant. In that case the cause was removed frOm a state court to a federal court under the act of 1888, after it had been three times tried in the state court. The contention on thf,l part of the removing defendants was that the words in this act, "at any time before the trial thereof," used in regard to removal oil the gr\>und of prejudice or local influence, were,. in effect, "at any time before the final trial thereof," and were to be given the same meaning as the words of the act of July 27, 1866, and the act of March 2, 1867, "at any time before the trial or.final hearing of the suit," under which language it had often been ruled that it was not too late to apply for a removal after trials which had been set aside by the trial court or by an appellate court. The chief justice, in giving the opinion of the court, refers to, the omission of the word "final" in the acts of 1887 and 1888, and points out that in this respect the language is like that of. the act of 1875, in which the words are, "before or at the term at which said cause could be first tried and before the trial thereof." The chief justice says: "This has been construed t() mean the tlrst term at which the cause Is In law trlable,-the first terJn at which the cause would stand for trial, if the parties had taken the usual. steps as topleadlngs and other preparations; and It has also been decided that there cannot be a removal after a hearing on & demurrer to the complaJ,nt because It does not state fac18 BU1Iictent to oonstltute a cause of action.",
After quoting theJanguage of the act of 1887, carried into the act of 1888, the, chief justiee .continues:
CITY OF DETROIT tI.DETROIT CITY BY.
co.
11
"In view ot the repeateddec1stons of this court In exposition of the llcts of 1866 and 1867 and 1875,lt 18 not to bE! dOllbted that, congress, the interpretation placed on the word 'final' in the connection in which it was used in the :prior acts and the settled of the act of 1875, deliberately changed the language, "at any time before the :final hearing or trial of the suit,' or 'at ilny time before the :tr1a1 or final hearing of the cause,' to read, 'at any time before the trial thereof,' as In the act of 1875, which requiredthe:petition to be before or at the terma,t which the cause could be first tried, and before the trial thereof. The. attempt was manifest to Jestl'a1n the volume of litigation pouring into the federal courts, ana turn to the standard of the judiciary act, and to effect this in part by resortIng to the language Used 1n the act of 1875 as its meaning had been determined by jud1cial interpretation. This is more obvious in view of the fact that the net of March 3, 1887, was evidently 1ntended to restrain the jurisdiction. of the circuit court, as 'we have heretofore held."
Two members of the court-Mr. Justice Field and Mr. Justice In their opinion, the language "any time before the trial" meant the same 118 in the acts of 1866 and 1867; that is, "at any time before the final trial." The question at issue in the cll8e, therefore, Wll8 whether the trial referred to in the act was a final trial or a first trial. The majority of the court held that, because the words ''before the trial thereof" had been used in the act of 1875 in connection with words which left no doubt that there they meant the firSt trial, therefore the same words in the' act of 1887 must. be taken to have the same meaning. We do not understand from the opiniOn, however, that the majority of the court intended to incorporate bodily into the acts of 1887 and 1888, from the act of 1875, the words, ''before or at the term at which said cause could be first tried." It is not apparent on what grounds this could be done. The act of 1875 fixed the time for· removal, not only before the first actual trial, but alsd before or Within the first term when a trial was possible. The supreme court holds that the words "before the trial thereof," in the act of 1887, were taken from the act of 1875. This being the case, the omission in the act of 1887 of the words limiting the period of removal to that before or within the term of possible trial which appear in the act of ,1875 would seem to clearly' indicate the congressional intention not to impose such a limitation in the subsequentact. The case'before the supreme court did not require the construction contended for, and for the reasons stated we do not feel authorized to attribute such a view to that court until some further expression from it on the subject. The words "at any time before the trial" should be given their ordinary meaning, i e. "at any time be· fore the first trial thereof;" and up to the time of that first trial, whether that occur at o11e term or another, the right of removal under the local prejudice clause remains. It follows that 'tlilil cause WaB removed in time. 3. The next objection to the order of removal is that the affidavit in support of the petition is not legal evidence, because the facts which' it states are sworn to on the information and belief of the affiant, a;ndnot of his personal knowledge. Neither the order removing nor, the order remanding a cause is a final order. In re Pennsylvania Co., 137 U. S. 451, 453, 11 Sup. Ct. Rep. 141. The petition for is in the nature of an interlocutory motion. It Wll8 long the practice in the high court of chancery in England to permit par-
ties tO$ubnrlt lJ,t the hearing of interlocutory motions affidavits on lJelief,iprovidedthat the facts were stated upon which such belief was founded. see Bird v.Lake, 1 Hem. & M. 111; 2 Daniell, Ch. Pr. 1509; 1 Daniell, Ch. Pr. 394. And by equity rule 90 the practice of the circuit court is to be regulated by the practice of the high court of chancer.r in England so far as the same may be applicable. The .Same practice now prevails in the high court of jUdicature of England. See Bidder v. Bridges, 26 Ch. Div. 1. In that case one rule provided that the court or judge might make an order for examination of witnesses de bene esse "when the judge is satisfl.ed, and when it shall appear neceSsary for the purpose of justice;" and it was held that such satisfaction could be produced on affidavits on belief the following rule: "AfIldavi1:$Blulll'be confined to such facUl as the witness is able of his own knowledge except on interlocutory motions, on which I;ltatements as to belief, with the grounds thereof, be admitted."
We do not think it would be too much to say that the rule thus stated is. in practice, and that for the purpose. of a hearing it is not .necessary that the affiant should have personal Imowl¢ge of every fact stated, if the. grounds of his belief are sufficiently set forth. Much reliance is placed upon the opinion ()f. Mr. Justice Bra,dley in the case of In re Pennsylvania Co., supra, where he discussed the amount and kinds· of evidence necessary to make local prejudice appear to the court within the meaning and requirements of the clause under consideration. lie said: "Our opinion. is that the circuit court must be legally (not merely morally) satisfied of the truth of the allegation that, from prejudice or local influence, the defenda,nt will not be able to obtain justice in a state court. Legal satisfaction reqUires some proof suitable to the nature oif the case; at least an affidavit of a credible person; and a statement of facts in such amdavit, which sufficientiyevtnce the truth of the allegation. The amount and manner of proof In each case must be left to the discretion of the court itself. A perfunctory showing by a formal amdavit of mere bellef will not be sufficient. If the petition for removal states the facts on which the allegation 1s founded, and that petition be proven by the amdavit of a person or persons in whom the court has this may be regarded as priIi:la fa.c1e proof, sufficient to satisfy the ooD$Cience of the oourt. If more should be required by the court, mOore should be offered.. In view of these considerations, we are di&posed to thiIik that the proof of prejudice and local influence in this case was not such as the circuit court wM bound to regard as satisfactory. The only proof offered was contained in the affidavit of the general manager of the defendant corporation, to the effect that from prejudice .and local influence the company would not be able to obtain justice in the court of common pleas for Litchfield coUnty, or any other state court to which, ete. We do not say that, as a matter of law, this affidavit was not suffi:cierit,but only that the court was not. bound to "regard it so, and might well have regarded it as not sufficient."
An affidavit on' belief of a credible person as to the facts showing local prejuQj.ce or influence which will prevent the removing party from obtaining justice in the state court, if the grounds Of that belief are statepin the affidavit, is "proof suitable to the nature of the case," and a ·court may therefore be "legally satisfl.ed" of the truth of'theallegations. Such an affidavit is not a "perfunctory
CITY OF DE'IROIT '/I. DETROIT CITY RY.
13
showing by a formal affidavit of mere belief," but is that kind of eyidence which for many years has been accepted in all courts of equiq on interlocutory motions as a substitute for the direct evidence of witnesses having personal knowledge required in the hearing on the merits of a case. The affidavit in this case is made by Francis H. Page, the secretary of the Washington Trust Company of the City of New York. Mter a positive averment of prejudice and local influence, he goes on to state that M is secretary of the Washingtoln Trust Company of the City of New York, and that by direction of his company he visited the city of Detroit, to. ascertain the condition and situation of the suit, and to protect its interests; that, after 80 careful and impartial investigation and examination, he hlUl thor· oughly familiarized himself with the actual condition of affairs in Detroit in connection with the controversy in this action. The affiant then refers to facts, of which the following are examples: A riot, .(01 which it may be remarked in passing, the supreme court of Michigan has taken judicial notice;) the conduct of the mayor and council in reference thereto. as evidenced by official records and otherWise; the calling and proceedings of a public meeting; the appointment of a committee by that meeting, and their public acts; the speeches at the public meeting, as evidenced by a stenographic report thereof; extracts from the local press; the issues of a local election and its results; the messages of the mayor; the resolutions of council,and many other facts, all in the nature of looal history, of which, an investigation for the purpose would give the affiant reasonably abeurate knowledge. His statement of such facts on information and belief, therefore, if he be a credible person, (whieh we have no reason to doubt,) furnished the court trustworthy legal evidence upon. which to dispose of the petition for removal, and, if. the facts· stated were sufficient, might reasonably and legally satisfy the court of the existence of such prejudice and local influence either against the trust company or in favor of the city in this controversy: as to justify the removal of the cause. 4. .Lila final objection urged dn behalf of the complainant, to the or'der of removal, is that the facts stated in the. affidavit do not show the necessary prejudice and local influence. The . statute directs a removal "when it shall be made to appear to said circuit court that, from prejudice or local influence he (the removing defendant) will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, u;rider the laws. of the state, have the right, on account of such prejudice or local influence, to remove said cause." The defendant trust company has no right, under the laws of Michigan, to remove this cause from the wayne circuit court to any other court of the state on account of prejudice and local influence. This is conceded. That it is within the power and discretion of a Wayne circuit judge to invite a judge from an· other circuit to hear the case, is not material, because the delendant cannot request it as a matter of right. The inquiry mtist' be limited, therefore, to· the existence of such prejudice and 16'MI influence as will affect the defendant's gettingj1lStice in circuit court. . r
i
·C8(n ca.rr;y :the suprem.e ,liIufficient Ilottend to court alsQ will be affected ,in ,this view. It ,is,d9lle,to a party Uti· or if the case involves only .a.D;nppealable,questl.OI\ of lrov" He, is, 011 general principles, iy,every tribunal whose aid or PP(i)1;oo1;iQll gives, him, no' matter whether tbtJ judgment is law.: It.,i$ an injustice to him to be .WI a :b,ighercouM;,to, ri,ght a wropg ,done him by trial judge. In the disadvantage to J1'Ilat'corn;Lps,ny, .ill, :of anadvmse decision, ,by the Wayne ,cou,.,"I;r:;wM! sub$t%n:tW.Tbe:r.n8sJldatory injunction prayed .bYi'tlte ,Qi1iY'ii;(,grantedby thecircnit·cwul't,. woll1d ,com.pel the street· J.'ai.hylty, tbe ,a.ppeal to. the suprem.e court, to tear ,fr9m the ,stt'eeW,of tlle pity, and materially injure the ;-tAe" trust CQmpaI;ly;. 8sl\dif, on the other :. 1t, bpn4 $lpu!d,be given to stay, the enforcement ,of, ,givil\gq! SUCh a heaVY bQn<li.sa burden which wu,st ,nor' its DWrtgagor ,s)lould ' have imposed q1!. e,xcep,t. ,Pril>llnal Ol'lOQaJ influence. j ;Co;rning; :p.PW; wethld, ,in. it a averment of as foUowl!l:
CAA PJ.'QyE;lj'thl'lotltble__ decision Qf the l;).Q,(llQIW
nq
01; 1m, adY$'se
pf ,}8(W p.wbich;tl;J.e
trust com-
circuit
:.«
)L'IDeponent ttil'tbersaith'that'!tM sald the' WashIngtOn Trust Company of tbe,Qlity> of NeMI:,'Y.ork, from,ipnejudlce and:looal influence. w'lll not be able to for, ,the. county,. of, W'aYJJe, in the state of otJ;ler the said. Vla.$fngtOn Trust ComPtl,'IfY Ule laws of,t1ie state of Michigan, Mfe the rlght,'onJaClOOuntofsuoo'prejlldiooandIOCllllIitluence, to remove said cause; that said prejudice and local influence also exist against, the fran· Detroit Citizens' $J;reeYRallWay Of and operating the street railways ' 'S1lch francWi!eB'/ tnd thro1J,ghlhem the saId prejudice and locann1hience against ''the''WllBhlngton Trust Ooml:iany ot the Olty of NeW'York, Whlch'ls the ,grantee ina deed (}f trust executed by the said DetroIt to the the Trust Company "the .a:Q.d .that ·sa!d and l?,.cal. in1luenc;e: e:x:lst 1D:''ravor of ot Detroit" the compIa!nantiil said suit, and is MinI: usE!dby'sllfa cumplalilantag8.1nilt the 8aldthe Washington Trust Oompany oftheOity of New' Yorkaa 8'aljl defendant tntlle said sUit."
caty
r
. ',' thenglve8 history of the 'Controversy between tlm,straet-rAUway.l;lompany. and the ,city 8(Ild the people of :Detroit, ·w:bich, f4f the]Rll'PPs,e of. ,this opinion,·may be suriunarized in the fol· JR:WWgrTlle CQmpany organized May 9, piV,ordim\..n.cegiveIl,afr@cWset09perate a street rail;way w.aiJ:l. of 'theclty· ,for periQd of 30 years from it, iij,oCilOl"PQra.tiOA 1879, thepo:w,mon council of Dethe' lif,e, Qt 1;4e uutil 1909, which was sixteen years after the time when the company's I I
CITY OF" DETROIT tI. DETROIT CITY :RY. CO.
15
porate life, as llinited b:rthe oonstitutlion'of Michigan, mll.Qt expire. During theyeal''l.890 thei'e had been much pUblic critieism of the-rail· way company because of itslloor equipment and service, and its fall· ure to adopt a'. system of rapid The public feelingthu8 aroused against-the company was increased by the continl1ous com· ment in the public press that the stock of the cOmpany was largely nwned by aliens, and that the railway was operated by persons of foreign birth. January 1,1891, the Detroit City Railway transferred ,all its property and francllliles to a Corporation known as the Detroit Street-Railway Company. In April, 1891, a general strike of the employes of the new company took place, because a few of their number had been dischkrged. The dOmpany would have had no difficulty in supplying new men and operating its lines if a mob of citizens and strikers had not forcibly resisted the running of its cars. Policemen were placed on the company's cars for a short time to protect them from attack, when the dommon council of the city passed a resolution formally against the, use ,of the police force. The mayor was appealed to by the company" and, he replied that he had no ]lower in the premises. Several riots took place" in which thepN'Perty and emploYe8of the compariywere attacked and injured.' The only official act of the mayor in connection with the riots· was to issue a proclamation calling upon all persons to preserve the ]leMe, which he took no steps to' ellforce. The supreme court of Michigan, in the clJ,Se of Geist v. BalIWay Co., N. W. Rep. 1112, tOOk juQi¢ial notice of this riot, and set aside a verdict against the company because of a reference to it in the speech of counsel for the plaintiff. The words of the court are: ' "In view of the great excitement' and anger of the populace, wblcb:oulminated in mob violence against the railway company but a few weeks before the trial, of which. we cannot fall to take judicial knowledge a,s a matter of cnrrent history, this remark might have revived the feelIng, and had a prejudicial effeCt upon tlie jury against the defendant."
A large publio meeting, attended by citizens of all classeB,was held to express sympathy with the strikers, and to denounce the railway oompany. The common council and the mayor pl'1blidy called upon the railway company to submit the matters in difference between it and its former employes to arbitration, and, in order to avoid further ,IOflS from lawless violence in the absence of adequate police protection, the company was compelled to' do so. Soon after these occurrences, the public demand for rapid transit became 80 great that in June following the railway company agreed to put in the necessary plant if its franchise should be· extended from 1909 to 1920. The common council accordingly passed an ordinance granting the extension. The people of the city were much incensed at this action of the council, and charges of bribery against the memo bel'S of the council and the company were made, and reiterated in the public press: The conditions imposed on the company in the ordinance were declared to be insufficient. A very large indignation mass meeting, the caJ.l for which. was signed by prominent, citizens, was held in July, 1891, and was attended by the mayor, and nearly all the aldermen. Theraij.way company was denounced in all the speeches.
16 .
FmDERAL REPORTER.VO}.
54.
Xhe attomeF for the company, In attempting to present the case of his client" was intel'l"Upted and shouted down. Resolutions were stating that the franchises of. the company would expire in MQ{V, that they could be m.ade to realize a million dollars Ol'i,woreto the city treasury; demanding that the present compan, give'the.publicrapid trarulit,and, on failure to immediately comply, that the. franchises be condemned, and put up for sale· to the highest bidder; and,pl'()testing against the action of the council in extending the: Jl'anchises, and demanding· that the mayor veto the ordinance. A cQltUl'Uttee of 50 leading citizens was appointed to present the protest t<'kthe mayor and the common council, and to take action in' ,the. courts. or otherwise in resMCt, to the street franchises. The tnay()ll'vetoed the ordinance in a. mel.lSage in which he reiterated the sentiment of the indignation meeting, as expressed in its resolu. The public feeling against the street-railway company had become so great in the faU of 1891 that the then. owners of the stock sold out to a new and controlled by leading citizens of Dettoit;but this change of. ownership was denounced in the pubfrom one set Of monopolists to another. One lic wess as· article, in the affidavit, concludes as follows: usqmmered down, it looks as·1f ,the street-rallway corporations which have bellnmakipg so much trouble tor the and creating so much scandal U1 the mUnicipality, had simply been reWtorc!!d by a cordon ot other great 'andpowerfuJ, that they "tiie endeavoring to disarm public suspicion' of theirintentloDs until they close 'all avenues of escape, then to draw their lines oloserand closer, then to swoop down' and get what the old comPlUlY tried put, tailed to,-extension of in the streets, worth wUlions, for nothing."
In a communication. to all .the papers of the city, the secretary of the mayor chal"ged, that the ownership of the railway company had not in fact but that· the present seeming owners were purely conveniences for the'.old sWckholders. The term of the mayor ended January 1, 1892, and an election for his successor took place in November, 1891. The leading issue of the campaign was the street-railway question,and the mayor was re-elected, although a maj'ority of the electors of Detroit are members of the political party opposed to that of the mayor. The citizens' committee of 50, appointed at the meeting in July, 1891, issued an address in this campaign, asking the public· to vote against 9 aldermen, because they were said to be favorable to the street-railway company. The result was the election of a majority' of the council on an antistreet-railway platfonn. The mayor, in his official messages to the coliimoncouncil, and in open letters to· the leading newspapers, which were published during the winter of 1891--92, frequently called attention to the great pecuniary value of the street-railway franchise to the city, ·if itoould ohly sell the same to the highest bidder, and to;the opinion of leading lawyers t1J.Il.t the franchise of the present company would expire .in May, or earlier. .He recommended the employment of counsel in additiOn to the regular attorneys of the city,f,o"act' on· her behalf. This course was also recommended by thecitizens',eommitteeof.50, and in January, 1892, they suggested· the :names of two lawyers for such employment. The mayor
17
The. council tabled a resolution authorizing him to do so, and considerable discussion as to his authority in this matter was had. One of counsel retained for the city withdrew from the case in March, 1892. Thereupon the mayor, in a message to the council, charged that such withdrawal was the result of "subornation of treason" by the railway company. In the same month the council passed an ordinance limiting the life of the franchise of the railway company to May, 1893, and repealing the ordinance of 1879, by which the franchise of the railway had been extended to 1909. A few days later the bill in this case was filed. The city of Detroit is a municipal corporation, forming a large part of the county of Wayne. The judges of the Wayne circuit court are elected by the qualified electors of Wayne county, once in six years. The terms of the present judges expire December 31, 1893, but their successors will be elected on the first Monday in April next. The present judges are all candidates for re-election. The affidavit closes with this positive statement: "And this further saith that all the above-stated prejudice and 10CM influence in favor of the city of Detroit, complainant in this snit, and against the Detroit Citizens' Street-Railway Company, operate upon and adversely to the holders of bonds issued by said Detroit Citizens' Street-Railway Company to the Washington Trust Company of the City of New York, b:v reason of the latter's relation as trustee of the Detrott Citizens' Street-Railway Company, and trustee for the holders of bonds of said street-railway company. That by reason of the prejudice and ill will existing against the said street-railway company. and. through it, against the Washington Trust Company of the City of New York, as above set forth, and the determinar tion of the public and the pUblic authorities that said railway company shall be defeated, if possible, in anything- which it undertakes or proposes, the judges of the Wayne circuit court are placed in a most trying and embarrassing situation, and are subject to constant and persistent importunity and pUblic and justice requircs that 1hey should not be called upon to determine the questions in issue between the city of Detroit and said railway company, in which the Washington Trust Company of the City of New York is interee.ted."
repOl'ted that he had retained the gentlemen named for the city.
No affidavit has been tendered in contradiction of the facts here set forth. Judge Jackson, in the case of Whelan v. Railroad Co., 35 Fed. Rep. 849, and in 1'houron v. Railroad Co., 38 Fed. Rep. 673, expressed the opinion that on a hearing of this kind affidavits could not be introduced to contradict or rebut the affidavit filed in support of the petition for removal on the issue of the existence of prejudice and local influence. Counsel for the city state that they acquiesce in this decision of Judge Jackson, and have therefore filed no rebutting affidavits. Whether the language of the snpreme court in the case of In re Pennsylvania Co., supra, does not shake the decision of Judge Jackson as autharity upon this point we are not called upon now to consider or decide. Suffice it to say that no affidavits contradicting the averments of the Pag-e affidavit have been filed, and the action·of the court must be predicated upon that alone. If the facts stated in the affidavit, of which we have only lllf'ntioned a part, do not show prejudice and local inti uence in the community of the city of Detroit against the defendants in this C3.'>e v.54F.no.1-2
18
FEDERAL REPOHTER,
vol.
and infavot' of 'the city as complainant, then 1MB, difficult;to .imagine facts that would. It is very cleal' that the citizens of Detroit generally are impressed with a feeling that the street-railway ·company has abused its privileges; that the continued enjoyment by it of the franchiseswill·be an injustice to the city, and will deprive the city of a very large sUJl? of money which it may acquire by the sale of these franchises to the highest bidder in the coming spring; and that the feelinghll8ripened into a conviction that the company has no rights in the streets after May, 1893. Whether such public feeling is due to misconduct of the railway company, and m.a.ybe justified, is not here the question. For the purpose of this argument, such justification. may be conceded. With that we have nothing to do. All that we hold is that the community of Detroit have :prejudged the case now before. us, and, therefore, that prejudice and local influence in favor of the city and against the defendants, including the trust company, do exist. It is contended by counsel, however, that, even if prejudice and local influence be shown, there is no evidence that by reason thereof the defendant will not obtain justice from the judges of the Wayne circuit court; The "justice" which the defendant must be vented from obtaining in the state court to entitle him to it removal is certainly not a judgment or decree in his favor. The phrase does not refer to any particular result in the rase, but rather to the influences which will operate upon the tribunal in deciding it. The "justiee" which defendant has the right to obtain is a hearing and decision by a court wholly free from, and not exposed to the effect of, prejudice and local influence. If it is made to appear to the United States court that prejudice and local influence do exist, which would have a natural tendency to operate directly on the sta,te court, and furnish an interested motive for the judges to decide the case against the petitioning defendant, it is the duty of the United States court to grant the removal, without any inquiry into the fact whether the particular state judges before whom the case is pending could and would rise above such prejudice and local influence, and decide the case unmoved by any personal benefit or disadvantage which would follow their d,ecision. In a majority of cases, doubtless, the state judges would do their duty without fear or favor, but the petitioning defendant is not to be exposed to the chance that prejudice and local influence may work against him. The existence of local influence, and its natural tendency to operate upon the court, being shown, the tribunal is no longer one in which, in the sense of the removal statute, "justice" can be obtained. A decision in this case adverse to the city of Detroit would probably cause many electors of the city in the approaching judicial election, convinced of the righteousness of the city's cause, to vote against the judge rendering the decision; and no judge could be unconscious of that fact in passing upon the case. We quite agree with counsel when they say that there is nothing here to show that the judges of the Wayne circuit court would not rise above influences of a personal character, and render a just decision; but the adverse in-
CITY OF"DE,TROIT V.DETROIT CITY RY. CO.
19
finences of present,. and in. such a ca.se we must presume mall judges to prevent injlliltice from the frailty of a few. It is by force.of a presumption of like character that all judges are. hel(J to be disqualified because of a pecuniary interest in the event· of a.suit. At common law the ownership of a single. share of stock in .a corporation, which. is party to a suit, abso· lutely disqualifies a judge to hear it. Dimes v. Junction Canal, 3 H. L. Oas. 759. It is held by SOme courts that where a judge is a taxpayer of a county he cannot hear a case in which the county is in· terested. Peck v. Freeholders, 21 N. J. Law, 656; Pearce v. Atwood, 13 Mass. 324. No one claims that in many of such cases the judge is not able to discard utterly from his consideration of the merits of the case every motive of pecuniary interest, but the policy of the law forbids that litigants should be exposed to the of bias arising therefrom. If disqualification is presumed in a judge becau$e of a pecu¢ary interest in the suit, however small, we think it reasonable, under a statute in terms framed to protect nonresident litiganta from injustice arising from prejudice and local influence, topresmp.e that Judges, for their election and continuance in office).lpon the suffrages of a community, are disqualified to hear and determine. a legal controversy between a nonresident and that it is clearly shown that the community has prejudged the case, and would be likely to visit the judges, in case of an adverse decision, with its ill will.. Without such a presumption as this, the would Qe a dead letter in all cases to be heard by a without a jury,. for, in the nature of things, direct proof that a judgewow.dbe illfluenced by pnblic sentiment and a desire for re-election. would be impossible. Congress could never have intended the federal judges to pass on the personal qualities of an in· dividual sUite judge every time an application is made to remove a suit inequity from a state court under the statute. Congress did, in the claWle under discussion, compel the nonresident to make proof of.prejudice and local influence, which, if it exists, can be elj-Sily f;lhown;but when. it is shown the presumption of its injurious influence upon a nonresident's case must follow. This presumption is the basis of the constitutional provision for a federal judiciary in diverse citizenship cases. Mr. Jlliltice Miller states it in his lectures on the Constitution as follows, (pages 332, 333:) "'I'he rl'ason for this, as has been said by commentators and courts, was the fear in the minds of the makers of the constitution that local prejudice likely to. arise in favor of a man sued in the courts of his own state would reSUlt in unfair decisions against his nonresident adversary. * * * It was thought that-a court owing allegiance to :md receiving its commission from the United States would be a safer tribunal than a court which was commiSSioned bya state, which could. be influenced by a vote of its citizem'l, and be swayed more or less in its .decL<oions from the absolute principles of jUlltice." . .
It is lmid that at common law prejudice was never a ground for challenge to a judge.. That is true. Interest "was the only ground of Favor would not be presumed in a judge, and it was, at (iommon law, no ground for excepting to a judge that he was relate(i to either party. In Dodge & Stevenson Manuf'g
20
FEDERAL REPORTER,vol.
Co., 77 N. Y. 101, 112; Inter Brookes and the Earl of Rhrers,Har<Jr. 503. But public opinion has grown more sensitiVe, and now by statute in most of the states relationship to the parties, and sev· eral other grounds unknown at the common law, disqualify a judge. In several states a party may, under the statute, except to a judge for personal prejudice or bias, and the affidavit of the excepting party asserting the existence of such bias has, under some statutes of this kind, been held to be conclusive evidence thereof. Carrow v. People, 113 m. 550; Smelzer v. Lockhart, 97 Ind. 315; Turner v. Hitchcock, 20 Iowa, 310; Runals v. Brown, 11 Wis. 185. The fact, if it be a fact, that there is no provision in the laws of any of the states for removals on the ground that prejudice and local intluence in the community affect the judge, has no weight in considering a· federal statute of removals, the reason for which we have several times alluded to. Counsel insist· that we must impugn the judicial integrity of the judges of the Wayne circuit court to reach a conclusion that, by reason of prejudice and local intluence, the defendant cannot obtain justice in that court. This does not at aU follow. We entertain the highest respect for our brother judges of the state court, as we ought, for those exercising concurrent jurisdiction with us. By our conclusion here, we no more reflect upon them than did the supreme court of errors of New Jersey reflect upon the great jurist Chief Justice Hornblower when it held that he was disqualifled to render the judgment he had rendered in a suit by the freeholders of Essex county on the bond of a defaulting official, because he was a taxpayer of that county, (peck v. Freeholders, 21 N. J. Law, 656,) or than did the house of lords reflect on the lord chancellor of England, Earl Cottenham, when it held that he was disqualified to render the judgment he had rendered in a suit against a canal company, because he held a few shares of its stock. Men may be unconsciously influenced by personal motive$, and public policy will not trust any judge, however great and pure, when such motives are present. Said Chief Justice Bell in Moses v.Julian, 45 N. H.
"The most perfect integrity that can be in Judges Is no hindrance why the parties, who have causes before them, may not challenge them, or except against them, and why they ought not of their own accord, to abstain from hearing causes in which they may have some interest, or where there may be some just ground for suspecting them; and they themselves are obliged to declare the causes which may render them suspected, if the llRJ;ties are ih"IlOrant of them; for, although a judge may be above the wealmess of suffering hirn$elf to be biased or corrupted, and may have resolution enough to render justice against )JiB own relations, and in other cases where it may be lawful for the parties to except agl$St the judges, yet they ought to mise trust themselves, and not draw upon themselves the just reproach of a rash proceeding whieh· would be, in eirect, a real misdemeanor. Dom. Pub. Law, Lib. 2, tit. 1, I 214." .
Nor, in reaching this conclusion, do we attack the whole system of an elective judiciary, as was claimed in argument. We simply hold that, under extraordinary circumstances, judges elected by &. community must be presumed to be affected by a. prejudice shown to pervade that entire comDlunity, so as to make it unjust to compel
UNIT]!)D STATES 11. GOODRICH.
a nonresident to try his controversy with the community before its own judges. If this holding is an attack on the system of an elective judiciary, then it is the constitution and laws of the United :States which are responsible for the attack, and not the courts which administer them. The motion to remand is denied. UNITED STATES v. GOODRICH. (Circuit Court of Appeals, Eighth C1rcuit. No. 176. APPEAL-AssIGNMENTS OF ERROR-TIME OF FILING.
February 6, 1893.)
In pursuance of rule 11 of the United States circuit court of appeals for the eighth circuit, requiring an assignment of errors to be filed with the petition for the writ of error or appeal, and declaring that errors not assigned according to this rule will be disregarded, the court will not consider errors the assignment I)f which is not made and filed In the court below until after the appeal or writ of error is allowed.
Appeal from the Circuit Court of the United States for the East· ern District of Arkansas. Suit by Ralph L. Goodrich, clerk of the United States oircuit and district court for the western division of the eastern district of Arkansas, against the United States for fees. The circuit court en· tered a judgment for plaintiff. 47 Fed. Rep. 267. Defendant appeals. .Affirmed. Charles C.Waters, U. S. Atty. U. M. Rose and G. B. Rose, for appellee. Before CALDWELL and SANBORN, Circuit Judges, and BHIRAS, District Judge. SANBORN, Circuit Judge. This is an appeal from a judgment against the United States for fees due to the clerk of the circuit court for the eastern district of Arkansas, rendered under the provisions of the act of March 3, 1887, (24 St. c. 359.) The judgment appealed from was entered on October 5, 1891, and on the same day an appeal to this court was prayed for and granted. No assignment of errors was filed until June 30, 1892. By the act of March 3, 1891, (26 St. pp. 826, 829,) no appeal by which this judg· ment could be reviewed in this court could be taken, except within six months after the entry of this judgment. The eleventh rule of this court which was adopted on June 17, 1891, reads as follows: "The pillint;iff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, wbich shall set out separately and particularly each error asserted and intl:'nded to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged Is to the admissio)l or, to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted 01· rejected. Wben the error allegEd is to the cbarge of 'the court, the assignment of errors shall set mit the part referred to totidem verbis, whether it be in instructions given or:in instructions refused. Such lIBsignment of errors shall form part of the . transcript of the record, and be printed with it. When this is not done, coun·