The procedure for removal is prescribed in section 29, Jud. Code, and those for dis missing or remanding a case improperly re moved are in section 27. Section 38 pre scribes that the federal court shall proceed in a suit removed as if it had been originally commenced in that court. Section 39 pro vides for securing the record by certiorari when a proper return is not made by the state court.
The removal acts are not penal and there fore not subject to any rule of strict con struction ; they are not in derogation of any right to a trial in a state court, as there is no such right ; the rule of construction is that applied to other statutes giving jurisdiction ; Woolridge v. McKenna, 8 Fed. 650; but the act of 1887 is to be construed with reference to its evident restrictive intent, and more strongly against one seeking to avoid its re quirements ; Dwyer v. I'eshall, 32 Fed. 497; and this, as all other cases of construction, applies to the present law under section 294, which provides that the Code is to be treated as a continuation of the previous act and not as a new enactment.
The right to remove is no more a vested right than the right to trial in the state court, and may therefore be taken away at will by congress; Manley v. Olney, 32 Fed. 708.
The cognizance over cases removed to the federal court has been referred to the appel late jurisdiction ; on the ground that the suit is not instituted in that court by original process; Martin v. Hunter's Lessee, 1 Wheat. (U. S.) 304, 4 L. Ed. 97; but this jurisdiction has been more accurately characterized as "original jurisdiction acquired indirectly by a removal from the state court"; Dennis town v. Praper, 5 Blatchf. 336, Fed. Cas. No. 3,804.
The federal jurisdiction attaches on the fil ing of the bond and petition; Crehore v. Ry.
Co., 131 U. S. 243, 9 Sup. Ct. 692, 33 L. Ed. 144 The validity of the legislation on this subject has been repeatedly affirmed ; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524 ; Ten nessee V. Davis, 100 U. S. 257, 25 L. Ed. 648; Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; State v. Hoskins, 77 N. C. 530; Baltimore & 0. R. Co. v. Cary, 28 Ohio St. 208. And it has been further decided that when the terms upon which the right is given have been complied with, the right of removal cannot be defeated by state legisla tion; Home Ins. Co. v. Morse, 20 Wall. (U. S.) 445, 22 L. Ed. 365. It has been said that a state has the right to impose conditions, not in conflict with the constitution or the laws of the United States, on the transaction of business within its territory by a foreign corporation, or having given a license, to re voke it with or without cause; and that it may therefore require foreign corporations to forego their right of removal, or cease to do business within the state ; Doyle v. lug. Co.,
94 U. S. 535, 24 L. Ed. 148 ; State v. Doyle, 40 Wis. 220, 22 Am. Rep. 692.
But in Barron v. Burnside, 121 U. S. 186, 7 Sup. Ct. 931, 30 L. Ed. 915, it was said that the point decided in Doyle v. Ins. Co., 94 U. S. 535, 24 L. Ed. 148, was expressly limited to the principle that an injunction would not be granted to restrain the action of state officers in such case; and it is settled that any legislation by the states intended to de feat the right of removal or to require from foreign corporations a stipulation in advance that they will not exercise it, is unconstitu tional and void ; id.; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942 ; Herndon v. R. Co., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970; Roach v. R. Co., 218 U. S. 159, 30 Sup. Ct. 639, 54 L. Ed. 978; Com. v. Coal Co., 97 Ky. 238, 30 S. W. 608 ; Erie R. Co. v. Stringer, 32 Ohio St. 468; or by a state law providing a special remedy in its own courts; Mason v. Boom Co., 3 Wall. Jr. 252, Fed. Cas. No. 9,232; nor can the right of removal be defeated by agree ment of parties; Hobbs v. Ins. Co., 56 Me. 417, 96 Am. Dec. 472. But a state statute providing that if a foreign corporation shall remove cases to the United States courts the license to do business shall be revoked, is not unconstitutional ; Security Mut. Ins. Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. 619, 50 L. Ed. 1013, 6 Ann. Cas. 317.
See JURISDICTION.
Formerly the right of removal was given to either party without regard to the posi tion occupied as plaintiff or defendant ; Mey er v. Const. Co., 100 U. S. 457, 25 L. Ed. 593; but under the act of 1887 this right is in most cases given to the defendant only, the ex ception being where citizens of the same state claim land under grants from different states and the defendant must be a non-resi dent; Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706, 37 L. Ed. 602; but a case is not removable from the state court on the ground of citizenship, unless both at the commence ment of the action, and also when the re moval is asked, the defendants are citizens of a state other than the one of which the plaintiff is a citizen ; Kellam v. Keith, 144 U. S. 568, 12 Sup. Ct. 922, 36 L. Ed. 544 ; Young v. Ewart, 132 U. S. 267, 10 Sup. Ct.. 75, 33 a Ed. 352. Some question has arisen as to which party is to be considered the plaintiff in proceedings for the exercise of the right of eminent domain, and if, by local practice, the landowner is the plaintiff, he cannot remove ; Mt. Washington Ry. Co. v. Coe, 50 Fed. 637; Hudson River R. & T. Co. v. Day, 54 Fed. 545.