In re Matthew Addy Steamship & Commerce Corporation/Opinion of the Court
The Coalmont Moshannon Coal Company, a Pennsylvania corporation, filed its petition in the circuit court of the city of Norfolk, Va., against the petitioner, Matthew Addy Steamship & Commerce Corporation, a Delaware company, for the recovery of damages for the alleged breach of a contract, and, under Virginia practice, garnisheed other defendants. In due time, and in proper form, the defendant, the petitioner herein, filed its petition for the removal of the case to the District Court of the United States for the Eastern District of Virginia. Thereafter the plaintiff in the state court filed a motion to remand the case claiming that it was not removable for the reason that the plaintiff and the principal defendant were nonresidents of the Eastern District of Virginia. The District Court sustained this motion and ordered the case remanded to the state court.

The petition in this proceeding prays that a writ of mandamus shall be issued, directing the District Judge for the Eastern District of Virginia, to vacate the order remanding the case, to redocket it in the District Court, and that it thereupon be heard and determined according to law. A rule to show cause was issued and the judge has filed his return, in which he asserts that the petition should be dismissed, for the reason that mandamus is not an appropriate remedy, because not permitted by the provisions of section 28 of the Judicial Code (Comp St. § 1010), reading as follows:

'Sec. 28. * * * Whenever any case shall be removed from any      state court into any District Court of the United States, and      the District Court shall decide that the case was improperly      removed, and order the same to be remanded to the state court      from whence it came, such remand shall be immediately carried      into execution, and no appeal or writ of error from the      decision of the District Court so remanding such cause shall      be allowed.'

This language of the Judicial Code first appeared in the Act of Congress of March 3, 1887 (24 Stat. 552, c. 373), as re-enacted on August 3, 1888 (25 Stat. 433, c. 866), and it has continued unchanged, except by the substitution of the District for the Circuit Court.

In 1890, in the case of In re Pennsylvania Co., Petitioner, 137 U.S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738, it was held that the power which this court had before the passage of the acts, supra, to afford a remedy by mandamus when a cause, removed from a state court was improperly remanded thereto, was taken away by these acts. Upon full consideration of the prior legislation, this court in the opinion in that case said of the language of the statute quoted (137 U.S. 454, 11 Sup. Ct. 142 [34 L. Ed. 738]):

'In terms, it only abolishes appeals and writs of error, it      is true, and does not mention writs of mandamus; and it is unquestionably a general rule, that the abrogation of      one remedy does not affect another. But in this case, we      think it was the intention of Congress to make the judgment      of the Circuit Court remanding a cause to the state court      final and conclusive. The general object of the act is to      contract the jurisdiction of the federal courts. The      abrogation of the writ of error and appeal would have had      little effect in putting an end to the question of removal,      if the writ of mandamus could still have been sued out in      this court. It is true that the general supervisory power of      this court over inferior jurisdictions is of great moment in      a public point of view, and should not, upon light grounds,      be deemed to be taken away in any case. Still, although the      writ of mandamus is not mentioned in the section, yet the use      of the words 'such remand shall be immediately carried into      execution,' in addition to the prohibition of appeal and writ      of error, is strongly indicative of an entent to suppress      further prolongation of the controversy by whatever process.      We are, therefore, of opinion that the act has the effect of      taking away the remedy by mandamus as well as that of appeal      and writ of error.'

In Fisk v. Henarie, 142 U.S. 459, 468, 12 Sup. Ct. 207, 35 L. Ed. 1080, In re Pennsylvania Company, supra, was cited as authority for the declaration that 'review on writ of error, or appeal or by mandamus is taken away' by the statutes cited.

In Missouri Pacific Railway Company v. Fitzgerald, 160 U.S. 556, 581, 16 Sup. Ct. 389, 395 (40 L. Ed. 536) this court said:

'It was subsequently decided in the case of In re      pennsylvania Company, 137 U.S. 451, 454, that the power to      afford a remedy by mandamus when a cause, removed from a      state court, is improperly remanded, was taken away by the      Acts of March 3, 1887, and August 13, 1888.'

In Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 98, 18 Sup. Ct. 264, 266 (42 L. Ed. 673) it was said that an order remanding a case such as we have here 'is not reviewable by this court.' In McLaughlin Brothers v. Hallowell, 228 U.S. 278, 33 Sup. Ct. 465, 57 L. Ed. 835, it is held that an order of the United States Circuit Court, remanding a case to a state court, in not reviewable here, directly or indirectly, citing Missouri Pacific Railway Co. v. Fitzgerald, 160 U.S. 556, 16 Sup. Ct. 389, 40 L. Ed. 536.

It is obvious that this statute, and these decisions interpreting it, rule the case at bar, and require that the petition for mandamus be dismissed.

It is not important to inquire to what extent, if at all, Ex parte Wisner, 203 U.S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, and In re Moore, 209 U.S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164, departed from the statute and decisions cited, for the correct rule with respect to the function and use of the writ of mandamus has been so often announced in other later cases that it has become entirely settled. Ex parte Harding, 219 U.S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392; McLaughlin Brothers v. Hallowell, 228 U.S. 278, 33 Sup. Ct. 465, 57 L. Ed. 835; Ex parte Roe, 234 U.S. 70, 34 Sup. Ct. 722, 58 L. Ed. 1217; Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 447, 36 Sup. Ct. 637, 60 L. Ed. 1084; Ex parte Park Square Automobile Station, 224 U.S. 412, 37 Sup. Ct. 732, 61 L. Ed. 1231; Ex parte Park & Tilford, 245 U.S. 82, 38 Sup. Ct. 15, 62 L. Ed. 164.

The conflict of opinion in the lower courts with respect to the right of removal from a state court of a case in which the opposing parties are citizens of different states and neither is a resident of the state in which the case is commenced, is much to be regretted, but section 28 of the Judicial Code is controlling, and Congress alone has power to afford relief.

Rule discharged.

Petition dismissed. 

Notes