BALTIMORE & OHIO RAILROAD v. BATES

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

Sub-sections 1 and 2 of § 639 were repealed by the act of 1875; Hyde v. Ruble, 104 U.S. 407; King v. Cornell, 106 U.S. 395, 398; Holland v. Chambers, 110 U.S. 59; Ayres v. Watson, 113 U.S. 594; but sub-section 3 was not. Bible Society v. Grove, 101 U.S. 610; Hess v. Reynolds, 113 U.S. 73, 80. Under sub-section 3, the petition for removal may be filed at any time before the final trial or hearing. Insurance Co. v. Dunn, 19 Wall. 214; Vannever v. Bryant, 21 Wall. 41; Yulee v. Vose, 99 U.S. 539, 545; Railroad Co. v. McKinley, 99 U.S. 147. This petition was filed after a new trial had actually been granted, and while the cause was pending in the trial court for that purpose. It was, therefore, in time, and no objection is made to its form.

As sub-section 3 has not been repealed, so much of the remainder of § 639 as is necessary to carry the provisions of that sub-section into effect remains in force, unless something else has been put in its place. It is not contended that anything of this kind has been done, unless it be by the operation of § 3 of the act of 1875, but that section by its very terms is only applicable to removals under § 2 of the same act. The language is, "that whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section," that is to say, § 2 of the act of 1875, "shall desire to remove such suit," he shall petition and give security in the manner and form therein prescribed. Clearly, then, this section relates only to removals provided for in that act, and as sub-section 3 of § 639 remains in force, because the cases there provided for are not included among those mentioned in the act of 1875, it follows that the form and mode of proceeding to secure a removal under the sub-section will be sufficient if they conform to the requirements of the other parts of the section. That section as it now stands unrepealed is complete in itself, and furnishes its own machinery to effect a removal of all cases which come within its operation. The security is as much governed by the remainder of the section as the time for filing the petition; and as to that, it was distinctly held in Hess v. Reynolds, supra, that the petition was in time if presented before the final trial, even though it was after the term at which the cause could have been first tried, which would be too late if § 3 of the act of 1875 was applicable to this class of cases. As to this the court said in that case: "We are of opinion that this clause of § 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done."

It is true this suit is between citizens of different States, and as such it is mentioned in § 2 of the act of 1875; but the fair meaning of § 3 is that the suit must be one that is removable simply for the reason that it is one of a class such as is mentioned in § 2. Some cases in the circuit courts have been ruled the other way, and the decision of the Supreme Court of Ohio was put largely on their authority; but they were all decided before Hess v. Reynolds, supra, in this court, and that case, as we think, substantially covers this.

The judgment of the Supreme Court of Ohio is reversed, and the cause remanded for further proceedings in accordance with this opinion.