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and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise."
In that case the statute in controversy was held to be mandatory; and so in the great case of Galpin v. Page, 18 Wall. 350, the same principle was applied in its relation to the jurisdiction of courts of special and limited authority; and, as is there and elsewhere abundantly shown, it is often applied in superior courts of general jurisdiction, where they are exercising special powers, not according to the course of the common law, by regular process and personal service in the usual form of common law or equity proceedings, but by seizure of property—as in attachment cases, for example—or some substituted process, or else where these special powers are exercised over a class of cases not within their ordinary jurisdiction, upon the performance of prescribed conditions made essential to the acquisition of the jurisdiction itself.
The case at bar does not, in my judgment, fall within any of these categories, and the mistake that is made in holding to a rigid and literal compliance with this requirement of the statute, that the copy of the record is to be entered "on the first day" of the next session of the court, is in supposing that it does, and that it is, therefore, a jurisdictional feature of the statute. We are not, in the exercise of our jurisdiction of removable causes, any more than in cases originally brought here, proceeding as a court of limited and special authority, nor as a superior court of general jurisdiction, exercising powers which are not according to the course of the common law and its regular course of process and personal service, nor yet such a court taking jurisdiction over a class of cases not within our ordinary jurisdiction. But we are a court of general jurisdiction, with this . subject matter embraced within the ordinary scope of our powers, and we are not proceeding by extraordinary processes, as attachment or publication or the like, but strictly upon personal service in the ordinary way. If it be an attachment suit, the same thing may be said of it, except that we are in the same predicament as the state court, and are only exercising concurrently its jurisdiction, whether
general or special. But even in that class of cases we are not exercising a special jurisdiction because of the removal, but because it was special in the state court and must be so here, and for the
It is true no process issues from this court, but it does from the state court; and where the case comes within the influence of the constitution and laws of the United States and is removable here, the parties to the process understand that they are summoned not only to the state court, but, if the adversary party or they choose, to the federal court as well, to settle their controversy. Moynahan v. Wilson, 6 Cent. L. J. 28; McLeod v. Duncan, 5 McL. 343.
The jurisdiction is conferred by the constitution, and is plenary and exhaustive. This act of congress has vitalized the constitutional grant and regulated the jurisdiction. The second section defines the jurisdiction in removal causes, prescribes the class of cases to which we are authorized to apply it, and in itself contains no condition precedent or subsequent upon which its exercise depends. The third and seventh sections, relating to the matter in contention here, are purely practice regulations by which a method of procedure is prescribed, and are not at all jurisdictional. This may be said, it seems
. to me, of all the sections to this act, except the first and second, and that clause of the seventh which punishes the clerk of the state court for refusing a copy of the record, and confers jurisdiction of the offence. The framework of the statute indicates a purpose to define the whole civil jurisdiction of the court in the first two sections, and to regulate the practice in removal cases in the others; and to this were (perhaps subsequently) added in the eighth and ninth sections independent regulations applicable to all cases, whether originally brought here or removed. This is shown by the title to the act, which is instructive on this point. The whole statute must be looked to in construing any part, unquestionably; but then this obvious separation of subjects is equally as important and available as an indication of the intention we are seeking. Act March 3, 1875, (18 St. 470.)
We are, then, in the construction of this statute, authorized to treat it, not as one conferring extraordinary jurisdiction or prescribing extraordinary processes and methods of procedure, (except, perhaps, the eighth section, regulating substituted process,) but as one granting ordinary jurisdiction and regulating the practice applicable to it. There is, as the books disclose, a vast difference between the two kinds of statutes in the rules of construction to be applied, the one being strict and the other liberal
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If a citizen had any general or common right to have his case tried in the state court, and this statute were in derogation of that right, there might be some claim for a strict construction; but it is not at all a common or preferred right or privilege, and the right of the other citizen with whom he litigates to have it tried in the federal court is entitled to the same consideration. Therefore, the idea that the proceeding of removal is in derogation of a right, or is extraordinary, in the sense of these rules of construction, and to be so strictly construed that everything is to be taken against it, is untenable. We are to construe it just as we do the statutes giving us original jurisdiction, or as the state courts do statutes regulating their ordinary jurisdiction. Indeed, it is original jurisdiction, and the only difference is in the mode of acquisition. Murray v. Patrie, 5 Blatchf. 343, 346. It is not appellate, nor supervisory, nor extraordinary, but peculiar; and the peculiarity is that the contending citizens use the process of the state courts to originate their litigation, and subsequently get their controversy into the federal court by removal, instead of going there directly, and either has a right to do it. There are some circumstances under which it is necessary to do this to obtain the benefit of statutory rights and remedies, that could not otherwise be conferred; as, for example, where a simple contract creditor files a bill in this state to set aside a fraudulent conveyance, and thereby acquires a statutory lien he would not have, perhaps, if the same bill were filed in the federal court. T. & S. Code, (Tenn.) $ 4288.
Undoubtedly, in the matter of regulating suits, whether commenced here or brought here after being commenced elsewhere, congress can prescribe such conditions precedent for the exercise of the jurisdiction as it chooses; and if it has said that, as an inexorable rule, we shall not proceed in this case unless the record is filed on the first day of the term, we must obey it. But the statute does not say so explicitly, and it is purely a matter of construction. Being open for construction, the question is, shall it be construed strictly against the jurisdiction, or liberally in favor of it? If it be a condition precedent, nothing can dispense with it, not even inevitable accident; and this seems to me an “absurd consequence," considering the nature of the case, and the character and purposes of the jurisdiction, as declared by the constitution, and shown by the history connected with its place in that instrument. Grammatical analysis of the third section does not disclose any intention to attach a forfeiture of the jurisdiction to a failure to file the record on the first day; nor does the seventh section; while the latter says that if filed within 20 days, in the cases there provided for, “such filing and appearance shall be taken to satisfy the said bond in that behalf.” This bond seems an important matter, and this statute, and all that have preceded it, instead of inflicting the penalty of forfeiting the jurisdiction, have provided another and a special remedy against neglect, which is a penal bond to secure to the adversary party his damages for it. Whether the court does or does not take jurisdiction after a failure to file the record, this bond protects the party against any injury he has received. Morrissey v. Drake, 10 J. R. 27; Horton v. Miller, 38 Pa. St. 270. It may be a condition precedent in the construction of the contract contained in the bond, which may not be excused, even if it becomes impossible by the act of God, much less by the act of the party. 3 Comyn's Dig. (5th Ed. A. D. 1825, by Day,) tit. “Condition, D 1,” p. 96; Id. “L, 12,” p. 121; 1 Comyn's Dig. tit. “Action on the Case, G," p. 330. But it does not follow that it is a condition precedent to the jurisdiction of the court. The cases consulted frequently point to the remedy by personal action against the defaulting officer or party as a sufficient protection, without holding the statute to be mandatory; and here we have provided a special security upon
personal action which would still more seem indicative of an intention that the statute shall be taken to be directory. It was so held on a construction of this act of congress by Mr. Circuit Judge McCrary. Kidder v. Featteau, 2 FED. REP. 616; S. C. 1 McC. 323.
But aside from this consideration this statute falls within the cases declaring the rules by which a statute shall be held to be directory. In Brewer v. Blougher, 14 Pet. 178, 198, it is said that it is undoubtedly the duty of the court to restrain the operation of a statute within narrower limits than its words import if the court is satisfied that the literal meaning of its language would extend to cases never designed to be embraced in it. And in Oates v. Nat. Bank, 100 U. S. 239, 244, Mr. Justice Harlan says that “a thing which is within the letter of the statute is not within the statute unless it be within the meaning of the makers."
In Whitney v. Emmett, Bald. 303, 316, it is said:
“ Laws are construed strictly to save a right or avoid a penalty. They are construed liberally to give a remedy or to carry into effect an object declared in the law. It is judicial legislation to confound the parts of a law which are merely directory as to acts to be done with those which prescribe acts as conditions precedent to the vesting of a right."
And in Russell v. Wheeler, Hempst. 3, 6, it is said that, even“Where a limited jurisdiction is conferred by statute, the construction should be strict as to the extent of the jurisdiction, but liberal as to the mode of proceeding; and, where a statute prescribes a form of proceeding, a substantial and not literal compliance is all that is required."
And so it was held in Heydon's Case, 3 Rep. 7“To be the duty of the judges at all times to make such construction as should suppress the mischief or advance the remedy; putting down all subtle inventions for continuance of the mischief, et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico.” Potter's Dwarris on Statutes, (Ed. A. D. 1875,) 184.
The supreme court of Pennsylvania says:
“ It would not, perhaps, be easy to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory; but negative words, which go to the power or jurisdiction itself, have never, that I am aware of, been brought within the category. A clause is directory when the provisions contain mere matter of direction and no more, but not so when they are followed by words of positive prohibition." Bladen v. Philadelphia, 60 Pa. St. 464, 466; Norwegian Street Case, 81 Pa. St. 349.
Where a statute directs a person to do a thing at a particular time, without any negative words restraining him from doing it afterwards, or any expression from which such intent can be gathered, the nam: ing of the time is directory, and not a limitation of authority. While, therefore, the duty may be performed at a subsequent time, and the action be valid, because time is not of the essence of the act, and is not a condition precedent to its validity, yet the statute should be obeyed, and the act done at the time specified. Hugg v. Camden, 39 N. J. L. 620. Where the object contemplated by the legislature cannot be carried into effect by another construction, there the prescribed time must be considered imperative; but when there is nothing indicating that the exact time is essential, it should be considered as directory. Colt v. Eves, 12 Conn. 243, 254. Accidents may happen which would defeat the authority if it cannot be exercised after the time mentioned. The naming the time must be, therefore, considered as directory and not a limitation of authority. Pond v. Negus, 3 Mass. 230; Lowell v. Hadley, 8 Met. 180. Neither the nature of the act to be performed, nor the language used by the