#### C. W. LAWSON v. RICHMOND & DANVILLE RAILROAD COMPANY AND THE WESTERN NORTH CAROLINA RAILROAD COMPANY.

Removal of Causes — Diverse Citizenship — Jurisdiction—Order of Federal Judge — Rights of State Courts.

1. The Act of Congress of 1887 as amended by that of 1888, -which provides that “where a suit is pending or may hereafter be brought in any State Court in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States *391for the proper District, at any time before the trial thereof, when if shall be made to appear to said Circuit Court that from prejudice or local influence he will not he able to obtain justice in such State Court,” does not authorize the removal of a cause pending in a Superior Court of this State between a citizen of another State as plaintiff, and a resident corporation and a foreign corporation, doing business and having property in this State, as defendants.

2. Where the prerequisites for removal under the Act of Congress do not exist the Federal tribunal has no jurisdiction to remove or try a case, and where such Court makes an order that the case be certified thereto, the State Court may decline to permit the removal.

3. The mere filing of a petition for removal of a suit from the State to the Federal Court does not work a transfer, but the suit must be one that may be removed and the petition must show the petitioner’s right to demand a removal. Until these prerequisites appear the State Court is not ousted of its jurisdiction, and its orders and proceedings must be respected.

MotioN by defendant, Richmond & Danville Railroad Company, heard at August Term, 1892, of Iredell Superior Court, before Boykin, J.

The motion was that the Court sign the following order:

“ It appearing that defendant, the Richmond & Danville Railroad Company, has obtained an order for the removal of this cause into the Circuit Court of the United States for the Western District of North Carolina, all of which appears from the petition, affidavits and bond of said defendant and the order of said Court duly certified to this Court, it is considered and adjudged that this Court will proceed no further in this cause, and that the Clerk of this Court certify to said Circuit .Court, before the next term thereof, a cop,y of the record in this cause.”

This motion was founded upon the petition, affidavits and bond of said defendant, and the order of the Circuit Court of the United States for the Western District of North Carolina.

*392The plaintiff was at the commencement of this action, and now is, a citizen and resident of the State of Kentucky.

The Court declined to sign the order, and made the following entry on the docket, to-wit:

“The Court declined to permit the removal of this cause to the Circuit Court of the United States, and declines to sign the order presented'by the defendant.”

And from this judgment the defendant, the Richmond & Danville Railroad Company, appealed.

The affidavit for removal of cause upon which the motion was founded was as follows:

“A. B. Andrews, Vice-President of the Richmond & Dan-ville Railroad Company, being duly sworn, does say that the Richmond & Danville Railroad Company is one of the defendants in the above entitled cause which is now pending for trial in the Superior Court of Iredell County, in the State of North Carolina, and that from prejudice and local influence the said defendant shall not be able to obtain justice in the said State Court, nor in any other State Court to which the said defendant may, under the laws of the said State of North Carolina, have the right, on account of such prejudice or local influence, to remove said cause; that by the accident which occurred on the railroad of this defendant on the 26th day of August, 1891, and which is the basis of this action, a number of persons, passengers and employees on the train of the said defendant, were either killed or wounded, as many as twenty-two being killed, or having died from injuries received, and about twenty-seven injured,' and that the said accident was at a place called Bostian Bridge, in the county of Iredell, 'in said State, on the date above mentioned ; that the report of said accident was at once widely circulated, and many persons from the county of Iredell came to witness the scene of the accident, and also many persons from the adjoining counties to Ire-*393dell; that the dead and wounded were carried to Statesville, the county-site of Iredell county, where the dead bodies were viewed by numerous citizens from the locality, and where many of the wounded were taken into the houses of citizens of said town; that great indignation was expressed by numbers of persons in the community on account of the great loss of life and injuries resulting from the accident, and many harsh and unjust criticisms were made upon the said defendant and the alleged careless manner in which it had operated its said railroad; many leading citizens going so far as to charge publicly that the destruction of life and injuries to the persons were the result of the recklessness of the said defendant and its wanton disregard of human safety and human life; that a newspaper published in Statesville called the Landmark, generally circulated in the county of Iredell and circulating also widely in the counties and localities adjoining and around Iredell county, which said newspaper has great influence in its circulation, published articles adverse to the said defendant on account of said accident, bitterly arraying the defendant before the readers of said paper and the public on account of the said accident, whereby, and on account of which, much prejudice was aroused against the said defendant and which still exists; that many of the persons killed or injured in the said accident were residents of the said county of Iredell and the adjoining counties, where their families, relatives, friends and associates reside, all of whom are or have been active and zealous in denouncing and criticising the said defendant, and exciting against the defendant much ill and prejudicial feeling; that other newspapers than the Landmark above named, published and circulated in North Carolina and in the county aforesaid, and the adjoining counties, have published and circulated articles bitterly denouncing the said defendant on account of the said accident, using *394such expressions as rotten sills, loose rails, negligent employees and other like expressions to convey to the public the impression that the said accident was due to the gross and inexcusable negligence of the said defendant; that by reason of these things a strong public sentiment, prejudicial to the defendant, has .been manufactured and matured, so much so that this affiant verily believes that the said defendant cannot obtain justice hi the State Courts aforesaid; that a number of suits have been brought in the State Courts of North Carolina upon the alleged cause of action aforesaid, there being as many as twelve or fifteen in the county of Iredell, as many as ten in the county of Buncombe and several in other counties, and affiant is informed and believes that the parties plaintiff have made common cause in all the cases, and that they and their friends have been active in prejudicing the public mind against the said defendant with a view of placing it at a disadvantage in trials of said causes in the State Courts.”

A certified copy of the record of the Circuit Court, showing the petition and order of said Court, was filed in the Superior Court. One of the allegations in the petition for removal was as follows: “Your petitioner further shows that in said suit there is a. controversy between a citizen of Kentucky and a citizen of Virginia, as it is informed and believes, the plaintiff’s pleadings in the action however not showing of what State the plaintiff is a resident or citizen. The plaintiff and the petitioner are citizens of different States, and the controversy between your petitioner, which avers that it wras at the time of bringing said suit and still is a citizen of Virginia, and that this action is brought in the State of North Carolina.”

Messrs. Armfielcl & Turner, for plaintiff.

Messrs. I). Schenck and F. IT. Busbee, for defendants.

*395Avery, J.:

The right of removal depends upon the construction of the Act of 1887 as amended in 1888, the pertinent portion of which is as follows: “And where a suit is now pending or may be hereafter brought in any State Court in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States for the proper District, at any time before the tidal thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to.obtain justice in such State Court, or any other State Court to which the said defendant may, under the laws of the State, have a right 'on account of such prejudice or local influence to remove said cause.” Foster’s Fed. Pr., sec. 386; Malone v. Railroad, 33 Fed. Reporter, 631. The privilege of removal on account of prejudice or local influence is granted to defendants who are citizens of a State other than that in which the suit is brought, and the Richmond & Danville Railroad Company is entitled to the benefits of its citizenship in Virginia. But the action here is brought in the Superior Court of North Carolina by a citizen of Kentucky against a resident corporation and a foreign corporation, and is not, therefore, a controversy “between a citizen of the State in which suit is brought” and the citizen of a State who, as defendant, seeks to remove the cause. A citizen of a State other than this has sued a resident corporation in our State Court, which, under our statutes, has cognizance of such a suit against it, and joins a non-resident corporation having property and conducting business within the State. The facts bring this case neither within the letter nor the spirit of the Act of 1888. It does not come within the language of the law, because the plaintiff is a citizen of Kentucky and *396not of tlie District ill which the action was brought. On the other hand, the mischief evidently intended to be remedied in the enactment of the statute was the procurement of verdicts in State Courts by bringing local influence to bear and engendering prejudice against non-residents ■who have no community of interest with the jurors of the vicinage and in favor of persons who reside amongst and are identified with them. It will not bo contended for the plaintiff, we suppose, that the fact of the existence of local prejudice or the exertion of such influence is a jurisdictional question, since it seems to be settled that it is within the sound discretion of the Federal Court, to which removal is asked, to determine whether sufficient evidence has been offered to establish the truth of the allegation as to local influence and prejudice. In re Pennsylvania Company, 137 U. S., 451.

It is conceded, too., that under the Act of 1888 the practice as to removal for local prejudice differs from that where the application is founded upon diverse citizenship, in that the motion in the one case must originate in the Federal, and in the other in the State Courts. Foster, supra, sec. 386; 20 Am. and Eng. Enc., p. 1000, note 2; Fisk v. Henaric, 142 U. S., 468.

The affidavit filed in this case seems to be sufficiently full to meet the requirements of the more rigid, but apparently more just, rule adopted in some of the circuits, that the petition should set forth specifically the evidence of the existence of local prejudice. Foster, supra, p. 578; In re Pennsylvania Company, supra; Malone v. Railroad, 35 Fed. Rep., 625. If, therefore, the only contested point were whether the defendant had offered sufficient proof of the existence of local prejudice, we would hold, without hesitation, that the plaintiff can contest that question only by a motion to remand made in the Federal Court.

*397The questions presented here, however, are, first, whether it was-made to appear to the Judge below that the Circuit Court of the United States would have jurisdiction to try the suit upon removal; second, whether on the failure of a petitioner to show from the affidavits and record the legal power of the Federal Court, or where it appears affirmatively from inspecting them that the Court in which the action is pending alone has cognizance, the State Court must, without contesting the right to subject litigants to the delay and expense incident to an appeal to the Supreme Court of the United States, submit to the usurpation of authority, send up the transcript and await the action of the appellate (hurt for redress of the grievance.

Ft is settled beyond all reasonable controversy that the Federal tribunals can take jurisdiction not at the discretion of a Circuit Judge, but upon defendant’s adducing not only proof satisfactory to such Judge of the existence of local prejudice and influence, but at least prima facie evidence that, both as to the parties and subject-matter, such Court has the legal authority to order the removal and take cognizance of the suit. Jn our case one of the plain prerequisites to removal is that the petitioner shall show by affidavit, or the record, that all of-the plaintiffs are “citizens of the State where the suit is brought.” 20 Am. and Eng. Enc., p. 999 ; Foster, supra, 579 ; Pike v. Floyd, 42 Fed. Rep., 247 ; Niblack v. Alexander, 44 Fed. Rep., 306 ; Anderson v. Bowers, 43 Fed. Rep., 321; Young v. Parker’s Administrator, 132 U. S., 267; Jefferson v. Driver, 117 U. S., 272.

Where causes have been inconsiderately removed to the Circuit Courts by order of the State Courts on affidavits purporting but failing to show diverse citizenship, the Supreme Court has invariably remanded them to the Circuit Courts, with directions to send-them back to the State Courts, with costs. Stevens v. Nichols, 130 U. S., 230; Mans *398 field Railroad Company v. Swan, 111 U. S., 379 ; Gibson v. Bruce, 108 U. S., 561.

The case of Young v. Parker was removed from the State Court of West Virginia to the Circuit Court of the District of West Virginia upon the ground that the defendant petitioner would not be able to obtain justice on account of prejudice and local influence, and is,'therefore, in point, except that it was a construction of Revised Statutes, 639. Chief Justice Fuller, delivering the opinion of the Court, said: “It was and is essential in order to such removal, where there are several plaintiffs, or several defendants, that all of the necessary parties on the one side must be citizens of the State where the suit is brought, and all on the other side must he citizens of another State or States. * * * It does not appear from either of these petitions and affidavits, or elsewhere in the record, that diverse citizenship, as to the parties therein named, existed at the time of the commencement of the suit, nor that diverse citizenship existed between the complainant and all the necessary defendants at the time the petition and affidavits were filed. The cause was not properly removed, and the State Court has never lost jurisdiction.” Stevens v. Nichols, supra; Cretrove v. Railroad, 131 U. S., 240. So far as the principle involved in this appeal is affected, the only change made by the Act of 1887, as amended by the Act of 1888, was to limit the right of removal to the defendants and to require additional allegations in the petition or affidavit. 20 Am. and Eng. Enc., 999; Tullock v. Webster, 40 Fed. Rep., 706.

Since, therefore, the defendant sets forth in its petition the fact that the plaintiff is a citizen of Kentucky, and it appears from the statement of case on appeal that “ the plaintiff was at the commencement of this action and now is a citizen and resident of the State of Kentucky,” it is *399clear not only that the defendant has failed to show affirmatively what is essential to give the Federal Court power to remove and try, but that in fact the Federal Court 'lias never liad and the State Court has never been ousted of the jurisdiction to hear and determine the cause. The State ’Court is not bound to stay proceedings; nor are its orders void except where the Circuit Court of the United States has rightfully assumed cognizance. The Supreme Court of the United States has repeatedly held, in that class of cases where the affidavit for removal must be filed in the State Courts, that after the requisite bond and affidavit are filed “ in a suit that is removable), the State Court is absolutely divested of jurisdiction and its subsequent orders are coram nonjudice, unless its jurisdiction be in some form restored.” Steamship Co. v. Tugman, 106 U. S., 118 ; Insurance Co. v. Dunn, 19 Wall., 214; Marshall v. Holmes, 141 U. S., 589.

But in all these cases it was conceded, either directly or by implication, that if the requisite.petition and bond had not been filed, the State Courts would still have had rightful cognizance to finally hoar and determine the cause. In Steamship Co. v. Tugman, supra,, the Court (at page 122) said : “ The requirements of the law are met if the citizenship of the parties to the controversy sought to be removed is shown affirmatively by the record of the case.” E con-verso, if the statute requires, as a prerequisite to removal, that the plaintiff shall be a citizen of the State in which the suit is brought, when it appears of record that he is a citizen and resident of a different "State, the jurisdiction of the State Court must remain undisturbed, and its orders made in the exercise of its rightful .authority must be valid. In the earliest case in which.this doctrine was distinctly announced, Justice SwayNE;. for the Court, said, in discussing therquestion whether the remoVal was made within the *400time prescribed by the statute, viz., before final trial: “ It is maintained by counsel for the administratrix that the order of removal by the Common Pleas was erroneously made, the first verdict and judgment being final within the meaning' of the Act of Congress and the laws of Ohio. If the point be well taken the judgment must be affirmed, otherwise reversed.”

In Marshall v. Holmes, supra (cited by' counsel for defendant), the Court said: “If ■under the Act of Congress the cause was removable, then, upon the filing of the above petition and bond, it was in law removed, so as to be docketed in that Court, notwithstanding the order of the State Court refusing to recognize the right of removal.” '

In every case relied upon it will appear that the exclusive jurisdiction of the Federal Court was made to depend on compliance with the Act of Congress. The Federal Court lias no jurisdiction till the State Court acts on a sufficient affidavit. Hall v. Chattanooga, 48 Fed. Rep., 599.

But in Stone v. South Carolina, 117 U. S., 430, Chief Justice W-Aite lays down the rule for which the plaintiff contends in very clear and unmistakable language, when he says: “A State Court is not bound to surrender its jurisdiction of a suit on petition for removal until a case has been made, which on its face shows that the petitioner has a right to the transfer. * * * If he fails in this, he lias not in law shown to the Court that it cannot proceed further with the suit. Playing acquired jurisdiction, the Court may proceed until it lias been judicially' informed fhat its power over the cause has been suspended. The mere filing of a petition for removal of a suit, which is not removable, does not work a transfer. To accomplish this the suit must be one that may' be removed and the petition must show a right in the petitioner to demand removal. This being made to appear on record and the necessary security' having been *401given, the power of the State Court ends and that of the Circuit Court begins.” It is manifest, therefore, that under this rule the case is still pending in the State Court, and its orders and proceedings must be respected until the Federal Court shall make an order upon a petition or record showing at least prima facie its rightful «authority to make it. Thompson v. Railroad, 38 Fed. Rep., 673.

The Constitution and statutes made in pursuance thereof fix the bounds of the concurrent jurisdiction of the Federal Courts and provide the machinery for a transfer where it is lawful to remove, but no judicial officer, however exalted his position, has the power to invest his own Court with jurisdiction not recognized bjr law, Qr to suspend the legal authority which another Court is rightfully exercising. An inadvertent order of a Federal officer cannot, for the mere sake of harmonious action between the two governments, be allowed to subject suitors to needless delay in prosecuting causes before the propertribunal in a State.

The case of Fisk v. Henaric, supra, establishes only what has been admitted, that it was -within the discretion of the Circuit Court to pass upon the evidence of prejudice, but it has no bearing upon the other question, whether the action shall be considered as removed by an order of a Federal Judge upon an affidavit plainly insufficient to authorize the order.

Upon a careful consideration of the authorities, we think there is No Error.

Ll Boioley v. same defendants:

Avery, J.: This appeal involves precisely the same question discussed in Lawson’s case, supra, and for the reasons given in the opinion in that case we hold that there is

No Error.

*402Iii Weber v. same defendants:

Avery, J.-: This case involves precisely,the same question presented in Lawson’s case, supra. For the reasons given in the opinion in that case we conclude that there is

No Error.

In Moore v. same defendants :

Avery, J.: It having been agreed that the decision in this case was to depend upon that in Lawson’s case, supra, and the two cases involving the same question, we conclude, for the reasons sot forth in the opinion in the last named cáse, that there is No Error.