affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein."

This provision of the Judicial Code repeals the previous acts on the subject, as the act of August 13, 1888, had been held to supersede the acts which preceded it.49

The language of this sentence is quite different from those of the three preceding sentences. The first limits the removal of cases on the ground of a federal question to those of which the district courts are given original jurisdiction by the preceding section. The second, regulating the removal of entire controversies on the ground of citizenship, also applies only to those cases of which the district courts are given jurisdiction by the preceding section. The third, authorizing removal on the ground of a separable controversy, limits such right to "any suit mentioned in this section," which amounts to the same thing. The fourth contains no such qualifying clause, and, independent of authority, it may be questioned whether this qualification was intended to be inserted. However, the Supreme Court, in Re Pennsylvania Co.,50 in which the question involved was whether the two thousand dollar limit applied to causes removed on the ground of prejudice or local influence, construing the acts preceding the Code, held that it was the intention of Congress to limit these causes, also, to those of which the court would have had original jurisdiction. The court construed the first part of the sentence, "where a suit is now pending" to be equivalent to the words "and when in any suit mentioned in this section." The re

49 Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685. See "Removal of Causes," Dcc. Dig. (Key-No.) § 2; Cent. Dig. §§ 2, 3. 50 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. See "Removal of Causes," Dec. Dig. (Key-No.) § 11; Cent. Dig. §§ 29-31.

enactment of them in the Judicial Code indicates the intention of Congress to adopt this construction.

The Parties

The controversy removable under the language of the statute is "a controversy between a citizen of the state in which the suit is brought and a citizen of another state." Hence controversies between citizens and aliens are not removable on this ground.51

In reference to the parties plaintiff, the word is used collectively, and under the principles established in other cases of jurisdiction, the plaintiffs, where there are more than one, must be citizens of the state where the suit is brought.52

Whether all the plaintiffs and all the defendants must be different in citizenship is a question on which there was a violent conflict of authority. Under the removal acts previous to the present, this was necessary."

53

But the language of the present section is that "any defendant" may remove the case. Influenced by this language, there is a line of authorities to the effect that any defendant who is a citizen of another state from that in which the suit is brought can remove it, though there are other defendants whose citizenship is the same as that of the plaintiff.54

On the other hand, there are authorities which hold that the controversy itself must be one in which all the plaintiffs are of a different citizenship from all of the defendants,

51 Grand Trunk R. Co. v. Twitchell, 59 Fed. 727, 8 C. C. A. 237. See "Removal of Causes," Dec. Dig. (Key-No.) § 67; Cent. Dig. §§ 120-124.

52 Gann v. Northeastern R. Co. (C. C.) 57 Fed. 417. See "Removal of Causes," Dec. Dig. (Key-No.) § 67; Cent. Dig. § 120.

53 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. Ed. 399. See "Removal of Causes," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 122, 123.

54 Montgomery County v. Cochran (C. C.) 116 Fed. 985; Jackson & Sharp Co. v. Pearson (C. C.) 60 Fed. 113; Bonner v. Meikle (C. C.) 77 Fed. 485. See "Removal of Causes," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 122, 123.

and that, if the controversy is of that character, then any nonresident defendant may remove.55

The question has recently been set at rest by the Supreme Court, which holds that removals on the ground of local prejudice must, like those under the rest of the section, be suits originally cognizable in the district court, and are governed by the same principles as to parties.56 Conditions on Which Removal is Allowed-Procedure

The statute gives the right of removal when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court or in any other state court to which he is entitled to remove the case.

There is nothing in the statute to show how this must be made to appear. The better authority is that a petition should be filed in the federal court alleging not merely the petitioner's belief or the bare statement of prejudice or local influence, but setting out such facts as would show it.57

It then becomes a question for the district court whether to require proof, and what kind of proof should be required. The court must be not morally, but legally satisfied of the existence of such prejudice or local influence; and it may, in its discretion, allow proof of such fact by affidavit.58

On this petition in the federal court an order is obtained

55 Campbell v. Milliken (C. C.) 119 Fed. 982. See "Removal of Causes," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 122, 123.

56 Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182, 4 Ann. Cas. 451, reversing Montgomery County v. Cochran (C. C.) 116 Fed. 985, and following the reasoning of In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. See, also, Armstrong v. Kansas City Southern R. Co. (C. C.) 192 Fed. 608. See "Removal of Causes," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 122, 123.

57 Schwenk & Co. v. Strang, 59 Fed. 209, 8 C. C. A. 92; Collins v. Campbell (C. C.) 62 Fed. 850; Ellison v. Louisville & N. R. Co., 112 Fed. 805, 50 C. C. A. 530. See "Removal of Causes," Dec. Dig. (KeyNo.) § 91; Cent. Dig. § 202.

58 City of Detroit v. Detroit City R. Co. (C. C.) 54 Fed. 1; In re

to remove the case, which order should be filed in the state court."

59

Then, if the plaintiff desires to contest the question of prejudice or local influence, he can do so by a motion to remand to the state court, on which the court will hear such evidence as it may think material."0

The present statute differs from the original act in requiring proof not merely that the defendant cannot obtain justice in the state where the suit is pending, but in any other state court to which he has the right to remove it. This qualifying clause, however, only applies where the plaintiff has the right to such change of venue in the state court, not where it is discretionary with the state court whether to allow the change of venue or not.o1

61

The statute seems to draw a distinction between prejudice and local influence, and to allow removal for either of these two causes.62

It does not mean that the petitioner must prove, as an actual fact, that he cannot obtain justice. Such a requirement would practically make the law a dead letter. He need only prove the existence of such prejudice or local influence, not that the court or jury was actually affected by it.63

Proof that a decision in favor of the petitioner would affect the judge's chances of re-election has been held suffiPennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. See "Removal of Causes," Dec. Dig. (Key-No.) § 91; Cent. Dig. § 202.

59 Pennsylvania Co. v. Bender, 148 U. S. 255, 13 Sup. Ct. 591, 37 L. Ed. 441. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 90, 91; Cent. Dig. § 202.

60 Dennison v. Brown (C. C.) 38 Fed. 535; Amy v. Manning (C. C.) 38 Fed. 868. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 63, 107; Cent. Dig. §§ 117, 178, 225–234.

61 Rike v. Floyd (C. C.) 42 Fed. 247; City of Tacoma v. Wright (C. C.) 84 Fed. 836; Parker v. Vanderbilt (C. C.) 136 Fed. 246. See "Removal of Causes," Dec. Dig. (Key-No.) § 91; Cent. Dig. § 202.

62 Neale v. Foster (C. C.) 31 Fed. 53. See "Removal of Causes," Dec. Dig. (Key-No.) § 63; Cent. Dig. § 117.

63 City of Tacoma v. Wright (C. C.) 84 Fed. 836. See “Removal of Causes," Dec. Dig. (Key-No.) §§ 62, 63; Cent. Dig. §§ 116, 117.

cient, and it applies whether the case is triable by a judge or a jury.**

The existence of such prejudice or local influence is enough to justify the removal, whether such feeling was, as a matter of fact, justified, under the circumstances, or not.65

REMOVAL BECAUSE OF STATE DENIAL OF EQUAL CIVIL RIGHTS

122. The denial of civil rights by state legislative authority gives the right of removal to the party so injured.

Section 31 of the Judicial Code provides as follows: "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts

64 City of Detroit v. Detroit City R. Co. (C. C.) 54 Fed. 1; Montgomery County v. Cochran (C. C.) 116 Fed. 985 (reversed on the jurisdictional question Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182, 4 Ann. Cas. 451). See "Removal of Causes," Dec. Dig. (Key-No.) §§ 62, 63; Cent. Dig. §§ 116, 117.

65 Bartlett v. Gates (C. C.) 117 Fed. 362. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 62, 63; Cent. Dig. §§ 116, 117.