State of Tennessee v. Union Planters' Bank Same/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I agree that the decrees in the first and second of the above cases must be reversed, with directions to dismiss the bills for want of jurisdiction in the circuit court.

But I cannot assent to the proposition that the third case, which was originally brought in one of the courts of the state, was not removable to the circuit court of the United States upon the application of the defendant bank. In that case, as the opinion of the court shows, the state sought to enforce a lien for taxes alleged to have been given by a general statute of Tennessee upon the capital stock of the defendant. The bank defended upon the ground that its stock was exempt by the terms of its charter from such taxation, and that the statute under which the state brought its suit was, if applied to the defendant, repugnant to the provision of the constitution of the United States forbidding the states from passing laws impairing the obligation of contracts.

The opinion of the court proceeds upon the general ground that, while a plaintiff, if his cause of action arises under the constitution and laws of the United States, or under some treaty with a foreign power, may invoke the original jurisdiction of a circuit court of the United States, a defendant is not entitled, under the existing statutes, to remove from the state court into the circuit court of the United States any suit against him, in respect to which the original jurisdiction of the federal court could not be invoked by the plaintiff, even where his defense goes to the whole cause of action set forth in the bill, declaration, or complaint, and is grounded entirely upon the constitution of the United States, or upon an act of congress, or upon a treaty between the United States and a foreign power. Of course the cases excepted by the fifth section of the act of 1887 (25 Stat. 436), c. 866, to be presently referred to, cannot be brought under this rule.

By the judiciary act of 1789, the original jurisdiction of the circuit courts of the United States in suits of a civil nature, at common law or in equity, was restricted to those in which the value of the matter in dispute exceeded, exclusive of costs, the sum or value of $500, and in which the United States were plaintiffs or petitioners, or an alien was a party, or the suit was between a citizen of the state in which it was brought and a citizen of another state. And the right of removal was given only to the defendant in a suit commenced in a state court against an alien, or by a citizen of the state in which the suit was brought against a citizen of another state; and, under certain circumstances, to the party in an action in which the title to land was concerned who relied upon a grant from a state other than that in which the action was pending. 1 Stat. 78, 79, c. 20.

The act of 1875 enlarged the original jurisdiction of the circuit courts of the United States so as to embrace all suits of a civil nature, at common law or in equity, in which the matter in dispute exceeded, exclusive of costs, the sum or value of $500, and 'arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects.' In respect to each of these cases that act provided that 'either party may remove said suit into the circuit court of the United States for the proper district.' 18 Stat. 470, c. 137.

The act of 1887, as amended in 1888, left the original jurisdiction of the circuit courts of the United States precisely as it was established by the act of 1875, except that it increased the sum or value of the matter in dispute necessary to give jurisdiction to $2,000, exclusive of interest and costs. 25 Stat. 434, c. 866.

The act of 1887 further provided as follows:

'Sec. 2. That any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding 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 circuit court of the United States for the proper district. Any other suit 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 therein being nonresidents of that state; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens 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.'

'Sec. 3. That whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein.'

By the fifth section of that act it was declared that nothing in it should be 'held, decreed, or construed to repeal or affect any jurisdiction or right mentioned either in section 641, or in 642, or in 643, or in 722, or in title 24 of the Revised Statutes of the United States, or mentioned in section eight of the act of congress of which this act is an amendment, or in the act of congress approved March 1, 1875, entitled 'An act to protect all citizens in their civil and legal rights." Section 641 of the Revised Statutes relates to civil suits and criminal prosecutions commenced in state courts, and involving the equal civil rights of citizens of the United States. Section 642 prescribes what shall be done when the petitioner who seeks the removal is in the actual custody of the state court. Section 643 gives the right of removal to the defendant in any civil suit or criminal prosecution against an officer, or any person acting under him, for any act done under the authority of a revenue law of the United States. Section 722 relates to proceedings, civil and criminal, in vindication of civil rights. Title 24 of the Revised Statutes relates to civil rights. The eighth section of the act of March 3, 1875, prescribes the mode in which absent defendants, in suits brought to enforce any legal or equitable lien upon or claim to property within the district, may be brought before the court. The act of March 1, 1875, has reference to the full and equal enjoyment of the accommodations, advantages, facilities of inns, public conveyances, theaters, and other places of public amusements.

There can be no question as to the import of the words, 'arising under the constitution or laws of the United States,' to be found in the acts of 1875 and 1887. It has long been settled that a suit was of that class if it necessarily involved a title, right, privilege, or immunity asserted, by either party, under the constitution or laws of the United States. If the defense was based upon the constitution or laws of the United States, the suit was one arising under that constitution or those laws, although the plaintiff may not have asserted, in his pleading, any claim whatever of a federal nature. Railroad Co. v. Mississippi, 102 U.S. 135, 140; Feibelman v. Packard, 109 U.S. 421, 3 Sup. Ct. 289; Ames v. Kansas, 111 U.S. 449, 462, 4 Sup. Ct. 437; Pacific Railroad Removal Cases, 115 U.S. 2, 5 Sup. Ct. 1113; Starin v. City of New York, 115 U.S. 248, 257, 6 Sup. Ct. 28; Bachrack v. Norton, 132 U.S. 337, 10 Sup. Ct. 106; Bock v. Perkins, 139 U.S. 628, 630, 11 Sup. Ct. 677. But the court now holds that the effect of the words in the first clause of section 2 of the act of 1887, 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' is to make the right of the defendant in a suit arising under the constitution or laws of the United States, or under a treaty, to remove it from the state court, depend upon the inquiry whether the suit was one in respect of which the original jurisdiction of the circuit court could be invoked by the plaintiff. In my judgment, this is an erroneous interpretation of the statute. It is too narrow. No such interpretation was suggested at the bar, nor do I think it has ever been before suggested in any case.

The main purpose of the second section of the act of 1887 was to restrict the right of removal to the defendant or defendants in suits of the kind mentioned in the first clause of that section, and to the defendant or defendants, 'being nonresidents' of the state, in all other suits mentioned in that section. It was not intended to deny to a defendant the right of removal where the suit, by reason of the nature of the defense, was one arising under the constitution or laws of the United States, or treaties with foreign powers, while allowing the plaintiff, whose bill, declaration, or complaint made a suit of that kind, to invoke the original jurisdiction of the circuit court. What possible reason could there have been for denying to a defendant the right, by a removal of the suit, to invoke the jurisdiction of a circuit court of the United States for the protection of his rights under the constitution or laws of the United States, while giving to the plaintiff the right to invoke the jurisdiction of the same court for the protection of similar rights under the constitution and laws of the United States? One effect of the present decision is except in the cases mentioned in the sections of the Revised Statutes and in the acts of congress referred to in the fifth section of the act of 1887-to prevent an afficer of the United States, when sued in a state court on account of some act done by him, from removing the suit into the federal court, although what he did is alleged to have been done in execution of some act of congress, or pursuant to an order of a court of the United States.

If it be said that this was the condition of things under the original judiciary act, my answer is that congress did not, by the act of 1887, evince a purpose to return to the policy indicated by the act of 1789 in respect to the concurrent jurisdiction of the courts of the United States and the state courts. This is shown by the fact that while, under the act of 1789, the circuit courts of the United States had no original jurisdiction of suits arising under the constitution or laws of the United States, or under treaties with foreign powers, or of suits between citizens of the same state, claiming lands under grants of different states, or of controversies between citizens of a state and foreign states, citizens, or subjects, original jurisdiction in all such cases, as conferred by the act of 1875, is preserved to those courts by the act of 1887. It seems to me contrary to the general purpose of the latter act to hold that a suit, which is made by the plaintiff's pleading one arising under the constitution or laws of the United States or a treaty, can be brought in the proper circuit court of the United States, while a suit which is made by the defendant's answer one arising under the constitution or laws of the United States or a treaty, cannot be removed to the federal court for hearing or trial. The words in the first clause of the second section of the act of 1887, 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' have, I think, been construed by the court with too much strictness. They were inserted in the act, in part, for the purpose of indicating that the suits mentioned in the second section as suits 'arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority,' and which could be removed, were of the same nature as the suits of the same kind described in the same language in section 1, and not for the purpose of limiting the right of removal to those suits arising under the constitution or laws of the United States, or under treaties, which could be brought by an original action in a circuit court of the United States. The court, by its construction, does what the act of congress does not do, and what it should not be supposed congress intended to do, namely, it divides suits arising under the constitution or laws of the United States and suits under treaties with foreign powers into two classes, and excludes one of those classes altogether from the original cognizance of the circuit courts of the United States. It thus-except in the cases saved by the fifth section of the act of 1887-makes a discrimination against a defendant whose defense rests entirely upon the constitution or laws of the United States, or on a treaty, that is not justified either by the policy or the words of the act of 1887.

The judiciary act of 1789 and 1875 restricted the original jurisdiction of the circuit courts of the United States to suits at law or in equity in which the matter in dispute exceeded the sum or value of $500, exclusive of costs. The act of 1887 fixed this amount at $2,000, exclusive of interest and costs. It may well be held-indeed, the natural and reasonable construction of the act of 1887 is-that the words, 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' were introduced for the purpose of making it clear that no suit arising under the constitution or the laws of the United States, or under any treaty, should be removed, unless the matter in dispute exceeded in value the sum of $2,000, exclusive of interest and costs. But for the words in the second section of the act of 1887, 'of which the circuit courts of the United States are given original jurisdiction by the preceding section,' any suit arising under the constitution or laws of the United States, or under a treaty, however small the amount in dispute, could have been removed from the state court. Those words being in the second section, no suit of that class could be removed into the federal court, unless the value of the matter in dispute was such as is prescribed in 'the preceding section,' namely, $2,000, exclusive of interest and costs.

Again, if, instead of suing to enforce the lien given by the statute, the state had levied upon the property of the bank, the officer making the levy could have been enjoined, at the suit of the bank, upon the very ground now set forth in its answer, namely, that the statute under which that officer proceeded was repugnant to the contract clause of the constitution of the United States. Such a suit would have been one arising under the constitution, and therefore cognizable by the circuit court. Allen v. Railroad Co., 114 U.S. 311, 5 Sup. Ct. 925, 926; Virginia Coupon Cases, 114 U.S. 307, 5 Sup. Ct. 923; Barry v. Edmunds, 116 U.S. 550, 6 Sup. Ct. 501. Yet, under the decision just rendered, the bank cannot, by removing the present suit, invoke the jurisdiction of the circuit court for the determination of the same question.

Further, it was held in Railroad Co. v. Cox, 145 U.S. 593, 12 Sup. Ct. 905, that, without reference to the citizenship of the plaintiff, a suit for damages can be brought in a circuit court of the United States against receivers appointed by a circuit court of the United States of a railroad corporation created by an act of congress, although the case involves no question of a federal nature. This, upon the ground that the receivers, in executing their duties, were acting under judicial authority derived from the constitution of the United States. Such a suit, if brought in a state court, could, I take it, be removed under the present decision, upon the ground simply that the plaintiff's suit was within the original cognizance of the circuit court. And yet, under the act of 1887, as now interpreted, a suit against a citizen or against a corporation created by a state cannot be removed, even if the defense rests exclusively on the constitution of the United States. I cannot believe that congress contemplated any such result.

I am of opinion that, under the act of 1887, a suit, involving the required amount, and 'arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority,'-whether the suit becomes one of that kind by reason of the allegations in the bill, declaration, or complaint, or by reason of the answer or defense,-may be removed, not, as under the act of 1875, by either party, but by the defendant or defendants, of whatever state residents or citizens, in the mode and at the time prescribed by the act of 1887.

Mr. Justice FIELD authorizes me to say that he concurs in this dissenting opinion.