Ruff brought in a state court of Georgia this suit against Gay, as receiver of the Savannah & Atlanta Railway, appointed by the federal court for southern Georgia sitting in equity. The cause of action alleged is the homicide of plaintiff's minor son as a result of the negligent operation of a train by employees of the receiver. Before trial in the state court, the receiver duly filed in the appropriate federal court a petition for removal and certiorari, under the amendment made by Act of August 23, 1916, c. 399, 39 Stat. 532 to Judicial Code § 33, which inserted therein the clause:
"or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer."
The federal court denied a motion to remand, 3 F.Supp. 264; and thereafter dismissed the suit, entering a
First. The respondent raises the preliminary question whether this Court has jurisdiction to review the action of the Circuit Court of Appeals. The contention is that this Court lacks jurisdiction to review a judgment directing the remand to a state court, because Judicial Code § 28. declares:
"Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: . . ."
Second. The contention that the removal is authorized rests upon the amendment made by the Act of 1916 to Judicial Code § 33. The argument for removal is that, since the receiver is an "officer" of the federal court and an action for damages resulting from the negligent operation of a train by his employees is a suit "for or on account of" and "act done in the performance of his duties as such officer," the removal here in question is directed in such plain words that there is no room for any other construction of the statute. But the amendment may not be isolated from its context. It must be read in the light of the then existing provision of § 33; of the then existing statute conferring the right to bring in a state court suits against receivers; of the statute denying removal from state to federal courts of a large class of cases similar in character to that before us; and of other legislation restricting the jurisdiction of federal trial courts. When the clause is so read, there arises at least a doubt whether Congress intended to give to the words inserted in § 33 the comprehensive meaning attributed to them. That doubt makes it appropriate to examine the history of the amendment, Binns v. United States, 194 U.S. 486, 495; United States v. St. Paul, M.M. Ry., 247 U.S. 310, 318. And such examination makes it clear that Congress did not authorize the removal of this case.
To appreciate the exceptional character of the removal privilege conferred by § 33, that section should be compared with § 28. Of the two, § 33 alone provides for removal of a criminal case. Removal of civil causes is provided for in both § 33 and § 28 of the Judicial Code. But the civil cases to which § 33 is applicable are few, while § 28 applies to many. Under the latter, any officer of a federal court can remove a suit brought against him on account of any act done under color of his office or in the performance of his duties as such officer, because § 28 applies to "any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, . .. of which the district courts of the United States are given original jurisdiction." But in order to avail of the removal privilege conferred by § 28 in respect of a suit arising under the Constitution or laws of the United States, the fact showing that the suit is of
Third. The case here sought to be removed has none of the characteristics of those which were removable under Judicial Code § 33 before the 1916 amendment. This suit is under the law of Georgia; and was brought as of right in the state court. Erb v. Morasch, 177 U.S. 584. It does not relate to any operation of the federal government. The defendant receiver does not justify under any judgment or order of a federal court. Nor does the suit present otherwise any federal question. Its only relation to the federal law is that the receiver sued was appointed by a federal court, in the exercise of its diversity of citizenship jurisdiction. The fact that the defendant is a federal receiver does not make the cause removable "upon the ground that it was a case arising under the Constitution and laws of the United States." Gableman v. Peoria, D. & E. Ry., 179 U.S. 335.
I. Congress provided in 1887 that the fact the defendant was a federal receiver should not preclude the maintenance of an action against him in a state court.
"Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; . . ."
In the thirty-nine years since its enactment there had not been, so far as appears, any attempt to appeal that law. It is in harmony with the trend of legislation providing that the federal character of the litigant should not alone confer jurisdiction upon a federal court — a policy acted upon in case of national banks as early as 1882
III. Congress had by recent legislation manifested its adherence to the policy, inaugurated in 1887, of restricting the jurisdiction of the federal trial court. Thus, the prescribed jurisdictional amount, which, after standing for nearly a century at $500 had been raised to $2,000 in 1887,
Fourth. There is no expression in the Act of 1916, or in the proceedings which led to its enactment, of an intention to appeal any existing law or to depart from the long-existing policy of restricting the federal jurisdiction. whether there was any special occasion for the amendment does not appear. The bill was passed in each House as introduced, without amendment, without debate and without a record vote.
The report of the Judiciary Committee of the House which recommended the adoption of the 1916 amendment establishes that such was the sole purpose of Congress. It states:
"The purpose of the proposed amendment is to extend the provisions of section 33 uniformly to officers of the courts of the United States, not only in cases arising under the revenue laws, but in all cases, giving to them the same protection in all cases now given to officers acting under the revenue laws, and to officers of Congress. The omission of such a provision from the original act gives rise to certain incongruities and creates a want of uniformity in the application of the law; for example: a United States
"The statute, with the proposed amendment, does not extend in any degree the jurisdiction or the powers of the courts of the United States. It merely provides a more orderly methods of procedure, which ensures as much, in fact more, to the benefit of the States than to the benefit of the United States, because it substitutes for the writ of habeas corpus the right of removal, so that instead of a summary discharge under the habeas corpus proceedings the amendment provides for trial before a court and jury."
The action of the Circuit Court of Appeals in reversing the judgment of the District Court and direction that the cause be remanded to the state court was proper. A suit for damage for an injury resulting from negligent operation of a train is not, within the meaning of Judicial Code § 33 as amended, a suit "for or on account of any act done under color of his [the receiver's] office." The receiver here sued, although an officer of the court operating the railroad pursuant to the order appointing him, is not an officer engaged in enforcing an order of a court. The operation of trains through his employees is a duty imposed upon the receiver; but he is not entrusted in his capacity as receiver with the service or execution of any process of the court. Nor is there reason to assume that he will in this case rest his defense on his duty to cause the train to be operated.
It was held in Maryland v. Soper, (No. 1), 270, U.S. 9, that by the National Prohibition Act, October 28, 1919, c. 85, Title II, § 28, 41 Stat. 316, this removal provision was extended to prohibition officers or agents engaged in the enforcement of that act. See also Colorado v. Symes, 286 U.S. 510, 517.
Likewise, removal is prohibited of actions by seamen under § 33 of the Merchant Marine Act of June 20, 1920, c. 250, 41 Stat. 988, Engel v. Davenport, 271 U.S. 33, 38; Herrera v. Pan-American Petroleum & Transport Co., 300 Fed. 563. And by Act of May 27, 1933, c. 38, § 22 (a), 48 Stat. 74, 86, suits brought in a state court under the Securities Act may not be removed.