The New York herald., 1871-02-16
The Grsat Fisk, Jr, and the Union Pacific
Railroad Company Case.
Fisk Out Of His Element in the Fed
eral Court and is Badly Beaten.
Important Decision by Judge
Nelson.


This Is o remarkable suit. II will be remembered
that In the State courts various orders were made
and receivers appointed, and tnat more than
year ago. the safes and offices OF the
company were forcibly entered. Judge Mel
son and Judge Biatchford, by their opinions, have
declared that these proceedings were illegal and
unjustlfable. The defendants, soon after the high
handed action Of the plaintin Fisk, ayailed them.
selves OF the benefit Of acts OF Congress, which
enabled them to remove the proceedings into the
United States court. Judge Barnard, 1t appears,
took no official notice OF this step. The defendants
claim that he issued injunctlons as BEFORE and ap-
pointed receivers after they had perfected all the
necessary arrangements for Withdrawing the cause
from his court. They then applied to Mr.. Justice
Nelson to vacate the first Injunction issued by Judge
Barnard when the suit began ana before ir was re.
moved to the federal court, and they represented,
through their counsel, that the subsequent orders
and injunctons in the State court were nu and void
and without jurisdiction. At the same time Fisk's
counsel made motion to remit the cause back to
the State court.
These TWO motions were argued together In May,
1870, before Judge Nelson ana Judge Blatchford,
Mr. D. d. Field and Mr.. E. W. Stoughton appearing
Tor the plaintiff, Fisk, and Mr. s. j. Tden, Mr.. James
Emott and Mr. Clarence Seward for the Railroad
Company and the other defendants
Owing to the illness Of Judge Nelson during the
summer he was rendered unable to devote attent on
to the case and he has delivered his opinion, in
which Judge BlaIchford concurs:-
DECISION,
James Fish us The Union Pacific Rrtroaa
A OIL was nled IN this case in the Supreme Court
OF tile state by the complainant against the Union
America, corporation OF Pennsy vania and twenty
TWO other persons. ltwas filed the forepart OF July
lsoo tne precise date Is not given, nor Is the time
ttyo .tafap
On the I'd OF August following six OF the defend
ants-the Union Pacific Railroad Company, Jonn J.
Cisco, william IL. Macy, Charles A. Lambart Sidney
Dillon and Thomas o. Durant-presen ed ue.
tuition to the court 10 remove the cause to the CIR
cult Court OF the United States for the Southern dis
trlCt oil New York. under an act OF Congress passed
July u, 1868. The act provides that amy corpora
tlon OF any member thereof, other than a banking
corporation, organized under law OF the United
States, and against which suit at law or in equity
has been or may be commenced IN any court other
than Circuit Court or District Court Of the United
States for any liability or alleged liability Of suc
corporation or any member thereof, as such mem.
ber5 may have such suit removed from the court in
rict Court Of the United States upon filing petition
therefor, verified by oath either before or
asr issue tnaI they
ton or the United Staes any treaty or law OF the
United States, aud Offering good and sufficient secu.
rlEy for entering III such court the first aay ses-
sion copies of all process, pleadngs &C.. and doing
such other and appropriate acts are required to
be done by an act Of Congress pas ed July 81 1866
And 1t shall be tnereupon the duty of the court TO
accept the security and proceed 70 further In fhe
suits ana the SAID copies shall be so entered afore
said In such court (of the United States) the sut
shall then proceed in the same manner Us II it had
been brought there by original process.n
The petition presented to the supreme Court OF the
State c0nformed In all respects Substantially to tho
provisions OF the act. Some question has been made
ant whether suit is brought against the deiendants
for liability or an alleged liability Of the Union
Pacific Railroad Company, or OF any Of It's members
as such, and an actual examination or the bill OF
complaint IL is claimed Will show this not TO be the
fact. Our examination OF 1t has led {, dit.
however. we are OF opinion It would not
have deprived the defendants OF the benefit
OF the act-that Is, If it had not appeared airma-
lively on the lace OF the bill thai the suit was
against them for such liability. The defendants
have averred IN their petition that the suit had been
brought against them FOR such cause OF action and
II question Is to be made upon the allegation 1T
must be settled at the trial and not on anldavits.
The third section OF the act OF March, 1888 IA q. s.
Stat, .. 6SS), provides that in any case where
suit was brought IN a State court against an
o1icer OF the United States or other person
the the revenue laws OF the United States. s"uor or
under color tnereol, it shall be lawful for the
defendants at any time before trial upon petition
forth the nature of the suit verifying the petition
&C. aud the cause shal! be entered on the docket Of
SAID court. This oct, like the one before US, has
Limitation upon the privilege Of removal.
THE SUIT
must be against person for or on account OF act
done under the revenue laws OF the government or
under color thereof 1t cannot be doubted, II no
such tact appeared in tue declaration, but which
was simply for an assault and battery, he could re-
that the suit was ior the cause stated In the act;
otherwise the statute could always be evaded by the
pleader We had occasion to examine the third sec.
tion at large IN Denlstoun VS.. Draper (Blatchford.
336, 34I, aud refer 10 the case for our views in
spect to us provisions The only question IN this
case arising out of the act OF the 9th OF july 1865
that
INVOLVES ANY DIFFICULTY
IS that in respect TO the parties Claiming the right to
n inn1 m lnln I'm mo-.
Iitlon or they may not apply for 1t, as they are
served with process or Otherwise brought into court
lie lime % 81 presenting the s petition, W but each,
or rs many as may sc !lr, without waiting, present
The petition and otherwise comply with the require
menta oil the act We perceive no well grounded OBJ
lection to this practice; but, on the contrary. 1t may
be attended with convenience, and can work no
prejudice to either party. The learned counsel Tor
the plaintln seems 70 suppose that the solicitor IS
entitled 70 notice OF the time and place OF tho pre-
senting Of the petition. Bat this Is an error. The
ACT prescfbes no such practice and 1t IA otherwise
under all the previous Statutes providing for reno
walls. No allldaylts can be made before the State
ton is er pdre, anu depends upon the papers upon
which 1t IS founded; and If they arc REGULAR aud con.
has no dscreton-thc act is peremptory. we are
also ol opinion that when one or more or the de-
PENDANTS have
rREs NTEp PETITION
and conormed In oil respects to the act, and thu
Initiated the removal that 1t Is not competent Tor
the State court TO take any proceedings in the
cause otllcr IMAM 10 perfect tuo IcHlOfi dS OtHck
party defendants may and present their petitions.
There may as in the present case, be numerous de-
and considerable intervals or time DC.
tween the service OF the process, aud when IL would
be expedlent that each should be al liberty 10 TAKE
the necessary steps 10 remove The cause 50 Tar as ne
was concerned, ana in the meantime It would be
unit, aud might oe useless waste OF time ard cx
pense 70 all parties concerned TO proceed In the
litigation until The question OF jurisdiction was con-
cerned. We agree With the ideas OF counsel Tor the
act that questions may arise 10 the
course OF the litigation besides those under the act
OF Congress. and which depend upon general prin-
cpes " law, cannot Withdraw the cause IRON
THE JURISDICTION OF THE FEDERAL COURTS.
This principle was settled i'll Osborne vs. Tue BANK
OF the United States and has been recognized as tho
settled law or the court ever slice. Nothing can
be added To the conclusveness OF the reasoning or
Chief Justice Marshall upon the point III that case
lie observes
IL this sufficient 10 withdraw case from tho urisdic
ton or the federal courts almost case although invov
ing the construction OF law would be Withdrawn, ard
clause In the constitution relating TO subject o vital impor
tace 10 the and expressed IN te most compro
hcusvc terms would be construsd to mean aos hotn'ng