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then be the duty of the state court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged; and the said copy being entered as aforesaid in said Circuit Court of the United States, the case shall then proceed in the same manner as if it had been originally commenced in said circuit court, etc." The corresponding provision of the act of 1789 enacts that the applicant “shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court to be held in the district where the suit is pending, and offer good and sufficient surety for his entering, in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety and proceed no further in the cause, and any bail that may have been originally taken shall be discharged; and the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process," etc.

Thus placed in juxtaposition and read together, it will be seen that the provisions of the two acts prescribing the mode of removal are identical in substance. In both, the applicant must file his petition and offer good and sufficient surety for precisely the same purpose, with the addition in the act of 1875 of a provision for the payment of costs if the federal court shall hold that the suit was improperly removed—an addition not in the least affecting the nature of the application. By the act of 1789, when the petition is filed and good and sufficient surety is offered, it is made the duty of the state court "to accept the surety and proceed no further in the cause." By the act of 1875, when the petition and bond with good and sufficient surety are filed, it is made the duty of the state court "to accept said petition and bond and proceed no further in such suit.” The two provisions are substantially one and the same. Nor is there anything in the suggestion that there has been a change in the time when the petition for removal may be filed, because of the words in the act of 1875 authorizing the filing of the petition for removal “before or at the term at which said cause could be first tried.” The idea seems to be, that these words authorized the filing of the petition in vacation, and therefore the action of the state court is not necessary. But the act of 1789 authorized the petition for removal to be filed by the applicant "at the time of entering his appearance in such state court,” and this might be in vacation as well as in term time. i Har. Ch. Pr. 169; Sweeny v. Coffin, i Dill. 75. Besides, the words of the act of 1875 were manifestly intended to make certain the right of the applicant to file his petition for removal at any time before the trial term, which might be at the appearance term, or even earlier, and “ at the time of entering his appearance in such state court." There is nothing in the difference in the wording of the two acts to create a substantial distinction between them. The duty of the state court, and its rights, if it have any rights, are identically the same under both acts.

The language of each of these acts fairly implies positive action on the part of the state court in accepting the petition and surety, and concedes the continuance of its jurisdiction until a copy of the record is “entered as aforesaid in said Circuit Court of the United States first day of its then next session.” There cannot be a doubt, moreover, that the state court would have the right to proceed in the cause after an application to remove, if, in fact, the application itself, or the case made by it, were insufficient to justify the transfer, or if the transfer were not perfected by filing the record in the circuit court at the time required. The jurisdiction of the United States court cannot attach until the jurisdiction of the state court has terminated, and that can only be when the state court has acted upon the application, and conscientiously performed its duty, which it is to be presumed it always will do, by accepting the petition and surety. This was the uniform practice under the act of

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1789, and has been recognized as the proper practice by the Supreme Court of the United States. "To obtain the transfer of a suit,” says Waite, C. J., “the party desiring it must file in the state court a petition therefor and tender the required security. Such a petition must state facts sufficient to entitle him to have the transfer made. This cannot be done without showing that the circuit court would have jurisdiction of the suit when transferred. The one necessarily includes the other. If, upon the hearing of the petition, it is sustained by the proof, the state court can proceed no further. It has no discretion, and is compelled to permit the transfer to be made. The petitioning party is then required to file in the circuit court copies of the process and of all pleadings, depositions, testimony, and other proceedings in the state court. This includes the proceedings by which the transfer was effected, and these, as has been seen, must show the facts necessary to give the circuit court jurisdiction.” Railway Company v. Ramsey, 22 Wall. 328.

This language unquestionably recognizes, not merely the right of the state court to act upon the application, but the necessity of its action. It was used previous to the passage of the act of 1875, but upon statutory provisions substantially in accord with those contained in that act.

The ruling is replete with the downright practical good sense so characteristic of the present Chief Justice of the United States. Any other course would lead to confusion and unseemly conflict, without the least necessity. The state courts are as much bound by the provisions of the constitution of the United States, and the laws passed by Congress in accordance therewith, as the federal courts, and are as little liable to, err in the judicial construction of these laws as the inferior courts of the United States, and, if they do err, are subject to the same mode for the correction of their errors in this regard as the inferior United States courts. They must, subject to such correction, determine for themselves, in the first instance, whether the case presented is one for their cognizance, or for the cognizance of the federal courts. They may err, but the error is to be corrected in the modes pointed out by law, not by the federal courts assuming jurisdiction of a case with which the others have not yet parted. That would be to make the unfortunate suitors bear the burden of double litigation at one and the same time, and that too by tribunals of the same government working, to this extent, under the same laws, the same official oaths, and the same sense of duty.

It is undoubtedly true, that if a proper case for removal is made out, and the petition and bond are in conformity with the requirements of the law, it is the duty of the state court to accept them, and make the proper order of removal, and any step taken in the cause thereafter by that court would be clearly erroneous, and subject to reversal for that reason alone, either by the appellate state court or by the Supreme Court of the United States. Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198; Insurance Company v. Dunn, 19 Wall. 214; Gaines v. Fuentes, 92 U.S. 10. But it is equally true, that if the state court improperly orders a suit to be removed to the United States court, it is the duty of the latter to remand it. Knapp v. Railroad Company, 20 Wall. 117. And it is also true, that, although the application to remove be made in due form, and the bond offered be unexceptionable, the state court may, in a proper case, refuse to order the removal, and will continue to have exclusive jurisdiction of the cause. Case of the Sewing Machine Companies, 18 Wall. 553; Vannevar v. Bryant, 19 Wall. 41. In either event, the ultimate decision of the question of jurisdiction rests with the courts of the United States. Each court must, however, in the first instance decide for itself whether it should proceed, subject to the revising power of the Supreme Court of the United States. It is not to be supposed that the state courts would decline to make the

necessary order of removal in a proper case, and, on the contrary, the legal presumption would be that a refusal so to do was the result of the exercise of the judge's best judgment in the conscientious discharge of duty. Useless expense may be thrown upon litigants by an error of judgment in the right of removal, but this is as likely to occur in the Circuit Court of the United States as in the state court. The evil is an incident to the fallibility of human judgment, and the complicated structure of our judicial systems. The same evil is an incident to the exercise of the separate jurisdictions of law and equity by the courts of the United States, as litigants sometimes find to their sorrow after protracted litigation at law, when they should have gone into equity, or vice versa. The only mode of preventing unseemly conflicts between the state and federal courts to no profit is by leaving the jurisdiction in the state court until it has finally parted with it by the necessary order. And so the Supreme Court of the United States has unequivocally said, through its chief justice, in the language above cited. There is no clear indication in the act of 1875 that Congress intended to interfere with the preëxisting practice, or to change the construction put by the courts upon the language borrowed from the previous statutes, nor is there any sound reason for inferring any such intention. The provision of the seventh section authorizing the Circuit Court of the United States to issue a certiorari to the state court in a possible, though not probable, contingency, is obviously not enough to affect these conclusions. It follows that it is the duty of the state court to act in the first instance upon the application made, and to determine, under all the solemn sanctions of judicial office, whether a proper case for removal is presented, and to adjudge accordingly.

Previous to the act of 1875 the law regulating the removal of causes from the state to the federal courts on the ground of the citizenship of the parties was well settled. The constitution of the United States, by Art. III, § 2, provides that the judicial power of the general government shall extend to “controversies between citizens of different states." But it has been uniformly held by the Supreme Court of the United States that the jurisdiction of the courts of the general government depends on the acts of Congress, and not on the constitution, except as put in force by legislation. The judiciary act of 1789, by its twelfth section, merely authorized the defendant in a suit brought in the state court by a

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