« ForrigeFortsett »
Cited with approval in In re Garnett, 141 U. S. 17, 35 L. 635, 11 S. Ct. 844, where laws of the United States relating to navigable waters were held to be applicable to navigable rivers as well as waters affected by the tide; Green Bay, etc., Co. v. Patten Co., 172 U. S. 69, 19 S. Ct. 101, holding the water power created by the erection of the dam and canal for purpose of navigation in Fox river is subject to control of United States. See monographic note, 10 Am. Dec. 388.
20 Wall. 445-459, 22 L. 365, INSURANCE CO. v. MORSE.
Removal of causes.- Party may waive his right to have a cause removed, p. 451.
Reaffirmed and adopted in Hanover Bank v. Smith, 13 Blatchf. 225, F. C. 6,035, holding right may be waived by conduct as well as by stipulation; Pollock v. Cohen, 32 Ohio St. 521, is to same effect; Wadleigh v. Standard, etc., Ins. Co., 76 Wis. 442, 45 N. W. 110, holding party should be allowed to withdraw his petition and bond for removal where he makes application before transcript of record has been sent to Federal court.
Distinguished in Quimby v. Insurance Co., 58 N. H. 495, holding foreign corporation doing business in State, by accepting service of process in conformity with State laws, is not thereby deprived of right of removal of cause to Federal courts.
Constitutional law. A citizen cannot barter away his life, freedom, or constitutional rights; therefore agreement by insurance company in its contract of insurance not to remove suit to Federal courts, any claim arising upon contract, is invalid, p. 451.
Cited and relied upon in Pope Mfg. Co. v. Gormully, 144 U. S. 236, 36 L. 419, 12 S. Ct. 637, holding contract not to set up any defense whatever to any suit which might be brought upon fifty different causes of action is in violation of public policy; Bauer v. Samson Lodge, 102 Ind. 269, 1 N. E. 575, Wortman v. Montana, etc., Ry. Co., 22 Mont. 279, 56 Pac. 321, Baltimore, etc., Ry. Co. v. Stankard, 56 Ohio St. 231, 60 Am. St. Rep. 747, 46 N. E. 578, Cupples v. Alamo Co., 7 Kan. App. 693, 51 Pac. 920, Supreme Lodge v. Raymond, 57 Kan. 651, 47 Pac. 534, and Supreme Council of Order of Chosen Friends v. Forsinger, 125 Ind. 55, 21 Am. St. Rep. 199, 25 N. E. 130, 9 L. R. A. 502, all holding an agreement which entirely takes away the right to invoke the aid of courts in enforcing claims arising under contract, is invalid; Hankinson v. Page, 24 Blatchf. 429, 31 Fed. 188, and Mitchell v. Dougherty, 90 Fed. 642, 644, 62 U. S. App. 451, 454, are to same effect; Hancock v. Yaden, 121 Ind. 369, 16 Am. St. Rep. 399, 23 N. E. 254, 6 L. R. A. 577, where ante cedent contract, assuming to waive right to receive wages for mining coal in money, was held void; German-Am. Ins. Co. v. Etherton, 25 Neb. 508, 41 N. W. 406, holding provision in policy that
no suit against Insurer shall be sustained in any court of law or equity until after award shall have been obtained by arbitration, fixing amount due after loss, is void; also, Mentz v. Armenia Ins. Co., 79 Pa. St. 480, 21 Am. Rep. 82, holding such a condition in policy will not oust jurisdiction of courts. Cited, arguendo, in Smith v. Preferred Assn., 51 Fed. 522, Wright v. Insurance Co., 110 Pa. St. 36, 20 Atl. 717, and McCoy v. Able, 131 Ind. 423, 30 N. E. 330, without special application. See note on agreements to submit to arbitration, 14 Am. Dec. 297; note on "by-laws of corporations restricting right to sue," 85 Am. Dec. 621; note, 25 Am. Rep. 104, also note, 29 Am. Rep. 602. See monographic note, 8 Am. St. Rep. 922.
Courts-State legislation cannot confer jurisdiction on Federal courts, nor can it limit or restrict authority given them by Congress, to contest a will was held valid.
Distinguished in In re Garcelon, 104 Cal. 590, 43 Am. St. Rep. 144, 38 Pac. 419, 32 L. R. A. 604, and n., where an agreement not p. 153.
Cited in the following cases, to the effect that no provision in a State law can prevent the removal of a cause to Federal court, if case falls within terms of Federal statute, providing for removal of causes: Kern v. Huidekoper, 103 U. S. 492, 26 L. 357, Martin v. Baltimore, etc., Ry. Co., 151 U. S. 684, 38 L. 315, 14 S. Ct. 537, Goldey v. Morning News, 156 U. S. 523, 39 L. 519, 15 S. Ct. 561, Filer v. Levy, 17 Fed. 612, Am. Finance Co. v. Bostwick, 151 Mass. 27, 23 N. E. 659, and dissenting opinion in Johnson v. Brewers' Ins. Co., 51 Wis. 580, 585, 9 N. W. 658, 661, the majority holding a decision by State court after attempt at removal is not necessarily void; East Tennessee, etc., Ry. Co. v. Atlanta, etc.. Ry. Co., 49 Fed. 612, 15 L. R. A. 111, holding where Federal court has Jurisdiction of a cause this jurisdiction cannot be restricted by laws of State respecting venue. Approved, arguendo, in Merchants' Mfg. Co. v. Grand Trunk Ry. Co., 21 Blatchf. 110, 13 Fed. 358.
Modified in Schollenberger v. Insurance Co., 21 Fed. Cas. 727, holding State legislation combined with consent of parties may confer jurisdiction on Federal courts.
Removal of causes.- On filing of proper petition and bond in suit which is removable, no further power of action in cause remains in State court, p. 454.
Reaffirmed in Ellerman v. New Orleans, etc., R. Co., 2 Woods, 125, F. C. 4,382, and Dennis v. County of Alachua, 3 Woods, 690, F. C. 3,791, the latter holding the approval of bond by State court is not necessary to jurisdiction of Federal court; Friedman v. Israel, 26 Fed. 804, holding where property has been seized under attachment and cause has subsequently been removed to Federal court, sheriff cannot interpose his writ when property is demanded by
marshal; Nat. Union Bank v. Dodge, 42 N. J. L. 320, and in case State court exercises further jurisdiction, its proceedings, if not held void, as being coram non judice, will be reversed as erroneous. Approved, arguendo, in Warren v. Wisconsin, etc., Ry. Co., 6 Biss. 431, F. C. 17,204.
Distinguished in Continental Ins. Co. v. Kasey, 27 Gratt. 222, 225, holding a party is not entitled to remove cause on grounds of diverse citizenship, after cause has once been tried in State court and new trial has been ordered by appellate court.
Removal of causes. — State statute forbidding foreign insurance companies to do business in State without filing an agreement not to remove causes to Federal courts, is void, and an agreement so entered into is void, p. 458.
Reafirmed and doctrine relied upon in Barron v. Burnside, 121 U. 8. 197, 199, 200, 30 L. 919, 920, 7 S. Ct. 933, 936, a case presenting the same question; Southern Pac. Co. v. Denton, 146 U. S. 207, 36 L. 945, 13 S. Ct. 46, applying rule to State statute making similar requirement of all corporations; Cunningham v. County of Ralls, 1 McCrary, 118, 1 Fed. 454, holding State statute requiring all actions whatsoever brought against counties to be commenced in Circuit Court of that county, does not deprive Federal courts of jurisdiction; Hartford Ins. Co. v. Doyle, 6 Biss. 463, F. C. 6,160, holding the statute above being void, the provision therein authorizing the revocation of license of such companies as apply to have causes removed, is also invalid; Commonwealth v. East Tenn. Coal Co., 97 Ky. 243, 244, 30 S. W. 610, construes a similar Kentucky statute likewise; Moore v. Chicago, etc., Ry. Co., 21 Fed. 819, holding State act providing foreign corporations doing business in State shall be deemed domestic corporations, is, in so far as it seeks to deter such corporations from submitting their controversies to Federal courts, invalid; Allen v. Texas, etc., Ry. Co., 25 Fed. 515, is a similar case and holds likewise; Vincent v. County of Lincoln, 30 Fed. 753, where section in act under which county bonds were Issued, providing suit thereon should only be brought in State court, was held invalid; Chicago, etc., Ry. Co. v. Becker, 32 Fed. 853, holdlng State act relating to foreign corporations and providing that if such corporations, when sued in State court, shall attempt to remove cause to Federal courts they shall be subject to certain penalties, is repugnant to Federal Constitution; Bigelow v. Nickerson, 70 Fed. 121, 34 U. S. App. 261, 30 L. R. A. 340, holding Wisconsin statute providing that actions for death in that State caused by negligence must be brought in some court established by State Constitution and laws, is invalid; Baltimore, etc., Ry. Co. v. Cary, 28 Ohio St. 214, 216, and Railway v. Stringer, 32 Ohio St. 473, 478, where Ohio statute, pro. viding that foreign railroad corporations by operating roads in that State will be deemed to have waived the right to remove cases
brought against them to Federal courts, was held repugnant to Federal Constitution; Rece v. Newport News, etc., Co., 32 W. Va. 170, 173, 9 S. E. 214, 215, 3 L. R. A. 575, 576, and n., holding State cannot, by statute, make all foreign corporations doing business within its territory domestic corporations, so as to deprive such corporations of the right to remove suits to Federal courts; dissenting opinion in Doyle v. Insurance Co., 94 U. S. 543, 24 L. 152, the opinion of the majority distinguishes (see infra); Phil. Fire Ins. Co. v. New York, 119 U. S. 125, 126, 127, 30 L. 349, 7 S. Ct. 116. 117, majority holding valid a tax imposed on foreign corporations doing business in State. Cited, arguendo, in Barrow Co. v. Kane, 170 U. S. 111, 42 L. 968, 18 S. Ct. 530, Reimers v. Seatco Co., 70 Fed. 575, 37 U. S. App. 426, 30 L. R. A. 366, Metropolitan Ins. Co. v. McNall, 81 Fed. 897, Blake v. McClung, 172 U. S. 256, 19 S. Ct. 172, Parrott's Chinese Case, 6 Sawy. 384, 1 Fed. 516, Tinker v. Van Dyke, 1 Flipp. 533, F. C. 14,058, and Chattanooga, etc., Ry. Co. v. Evans, 66 Fed. 814, 31 U. S. App. 432, without special application. Approved, arguendo, in Hollingsworth v. Southern Ry. Co., 86 Fed. 354, where South Carolina statute relating to foreign corporations is construed; Hartford, etc., Ins. Co. v. Raymond, 70 Mich. 503, 504, 38 N. W. 483, where Michigan statute, authorizing the revocation of license to foreign corporations to transact business in State, in case such corporations failed to comply with law relating thereto, was held valid; Koshland v. Insurance Co., 31 Or. 220, 49 Pac. 849. See monographic notes, 95 Am. Dec. 538, 96 Am. Dec. 343, and 15 Am. St. Rep. 221.
Distinguished in Doyle v. Continental Ins. Co., 94 U. S. 537, 539, 540, 24 L. 150, 151, and State v. Doyle, 40 Wis. 188, 189, 190, 192, 194, 105, 196, 198, 22 Am. Rep. 694, 695, 696, 697, 699, 700, 701, 702, both holding act of legislature authorizing the revocation of license of foreign insurance company which transferred a suit brought against it in State court to Federal court, was valid; dissenting opinion in Bigelow v. Nickerson, 70 Fed. 126, 34 U. S. App. 261, 30 L. R. A. 343, 344, see opinion of majority, supra; followed, though not approved in Railway Pass. Assn. v. Pierce, 27 Ohio St. 158, where a similar Ohio statute was construed; dissenting opinion in Baltimore, etc., Ry. Co. v. Cary, 28 Ohio St. 230, see opinion of majority, supra.
State has right to exclude foreign insurance companies from transaction of business within its jurisdiction, per Waite, C. J., dissenting, p. 458.
Cited to the effect that a State may forbid a foreign corporation from transacting business within its territory in the following: Desmazes v. Insurance Co., 7 Fed. Cas. 532, Metropolitan Ins. Co. v. McNall, 81 Fed. 896, and Insurance Co. v. Commonwealth, 87 Pa. St. 182, 30 Am. Rep. 354. See note, 96 Am. Dec. 341.
Removal of causes.- State court has jurisdiction to try question of citizenship upon petition to remove a cause to Federal courts, per Waite, C. J., dissenting, p. 459.
Reaffirmed in White v. Holt, 20 W. Va. 807.
Miscellaneous. Cited incidentally in Baltimore, etc., Ry. Co. v. 8. W., etc., Ry. Co., 17 W. Va. 878. Cited in State v. Stone, 118 Mo. 401, 40 Am. St. Rep. 394, 24 S. W. 166, 25 L. R. A. 246, as authority for holding a State may impose conditions on a corporation that it cannot impose on individuals.
20 Wall. 459-474, 22 L. 371, SPROTT v. UNITED STATES.
War.- Purchaser of cotton from Confederate government cannot recover value thereof in Court of Claims when same, after purchase, had been captured and sold under authority of United States, p. 463.
Cited and principle applied in Whitfield v. United States, 92 U. S. 170, 23 L. 707, holding, where party sold cotton to Confederate government and accepted Confederate bonds in payment, but while it was still in his possession it was seized and sold by Federal authorities, he is not entitled to recover from the United States the value thereof; Lamar v. Micou, 112 U. S. 476, 28 L. 760, 5 S. Ct. 232, holding courts of United States will not regard Confederate bonds as securities in which trust funds could be lawfully invested; Branch v. Haas, 4 Woods, 589, 16 Fed. 55, where contract made since Civil War for sale of Confederate bonds was held based on illegal consideration, and void; Clements v. Yturria, 81 N. Y. 290, holding purchaser of cotton from Confederate government cannot recover the value thereof from a defendant with whom it was deposited by such government, and who converted it to his own use. Cited in Dewing v. Perdicaries, 96 U. S. 195, 24 L. 655, as authority for rule that all acts done in aid of Rebellion were illegal and of no validity; Ford v. Surget, 97 U. S. 623, 24 L. 1027, and Young v. United States, 97 U. S. 58, 24 L. 997, as authority for holding that, during the war, cotton found within the Confederate territory, though owned by non-combatants, was a legitimate subject of capture by Federal forces; Snell v. Dwight, 120 Mass. 15, and Walker v. Beauchler, 27 Gratt. 520, without special application. See note, 91 Am. Dec. 280.
Distinguished in Baldy v. Hunter, 171 U. S. 398, 402, 18 S. Ct. 893, 895, upholding investment by guardian of ward's Confederate money, in Confederate bonds.
States. Powers of government exercised by insurgent States during Rebellion, when not exercised for purpose of aiding Rebellion, were valid and binding, p. 464.
Cited and relied on in United States v. Insurance Co., 22 Wall. 102, 22 L. 818, where an insurance corporation created by the legislature