People ex rel. Glens Falls Insurance v. Judge of Jackson Circuit Court

Campbell, Ch. J. This is an. application for an order on the Circuit Judge sitting in Jackson County to show cause why a mandamus should not issue to direct him to remove a cause to the United States Circuit Court, the relator being defendant and a corporation, under the laws of New York, and the plaintiff being a citizen of Michigan. We desired the counsel for the relator to argue the motion, as we had doubts of the propriety of calling upon the Circuit Judge to respond to such an order, and we have been furnished with tbe citation of such cases as could be found. It is alleged, and must on this motion be assumed, that the Circuit Judge took no exception to the security offered, and only denied the application on the ground that the relator had become bound, by the conditions on which it assumed to do business in Michigan, to submit to the jurisdiction of the state courts. The only questions, therefore, are whether the relator has.incurred any such obliga — 579 — tion, and whether a mandamus should be granted by this Court as the proper remedy in case the removal is within the acts of Congress. We think that on both grounds the application should be denied. We think the validity of the statute providing for the removal of cases to the United States Circuit Courts is undoubted. And we held in Yawkey v. Richardson, 9 Mich. R., 529, that in eases to which it applied, the removal was a matter of right and not within the discretion of the state courts. If this were the case of a citizen of another state, having the full rights of an individual, and subject to no disabilities, we should have no doubt of the incorrectness of the decision below, however much we might doubt our authority to interfere in this way to correct it. But while for some purposes a foreign corporation is allowed to be regarded as a citizen of the state incorporating it, and while in the absence of any reason to the contrary it is so regarded under the United States judiciary acts for the purposes of suit, yet any privilege which that relationship might bestow - on it may be waived like any other right, and the party may be estopped from setting it up. If the Constitution of the United States gave exclusive jurisdiction of suits between citizens of different states to the courts of the United States, then, of course, the state courts could get no jurisdiction by waiver or express consent. But when they have original jurisdiction, and there only exists a right to remove the cause, we see no reason why a. party may not become bound by covenant or estoppel to waive his privilege beforehand, as completely as he would lose it by delaying his petition too long. The principle is the same in the one case as in the other. It was decided in Bank of Augusta v. Earle, 13 Peters R., 519, that a corporation created by one state had — 580 — no power to do any corporate act in another state unless by the express or implied assent of the latter. And it was held accordingly in Paul v. Commonwealth of Virginia, 8 Wal. R., 168, that such assent might be conditional. The Court use the following language: “Haying no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.” The state of Michigan has seen fit to enact that no foreign insurance company shall transact business in this state without first appointing an agent or attorney in this 'state “on whom process of law can be served, which process shall issue from the courts of this state, and such courts shall have exclusive jurisdiction of all cases arising under this act.” (L. 1869, p. 2j8). This language is free from ambiguity. Submitting themselves to the exclusive jurisdiction of our courts is one of the conditions of their corporate action in Michigan. As they could not act at all without the consent of the state, they must conform to these conditions, and must be regarded as waiving all privileges inconsistent with them. Their powers exercised here are the same as if they were incorporated by our laws, and they become to that extent Michigan and not New York corporations for all practical purposes in this state. They have appointed their agent under this statute and subject to all its requirements. — 581 — The Circuit Court, therefore, could not properly compel a party who had sued them, when they have covenanted he might sue them, to go into another jurisdiction. We are also unable to discover any propriety in resorting to the writ of mandamus of this Court to correct the action of a Circuit Court in a case, under the act of Congress. If any coercive action should be deemed necessary to transfer proceedings into the courts of the United States, it should naturally come from United States authority; and if the result cannot be reached without the intervention of some writ, we find it difficult to believe that the remedy can be dependent on the discretion of a state court. In all cases where writs are expressly mentioned for purposes of removing cases into United States courts, they issue returnable there. There is no writ of certiorari or mandamus known to the common law issuing from one jurisdiction to courts within it for the removal of causes into another jurisdiction. Certiorari is the proper writ for removing records from one court into another for trial, and is the writ expressly authorized to be issued by United States courts, for removing thither certain cases from state courts under the act of 1833.—4 U. S. Stat., 633. But whether certiorari or mandamus would be appropriate for this purpose, it is certainly more seemly that they should not depend on the( discretion of any tribunal not holding its commission from the authority creating the right of removal. The United States Supreme Court has never, that we can find, decided expressly, upon a case arising under the statute in question, that the Circuit Courts of the United States may issue the proper writ, if any is required, but the principle has been asserted distinctly that a summary remedy exists, and, if, so, there can be no special difficulty in ascertaining it .—Gordon v. Longest, — 582 — 16 Pet. R., 97. And we thinlc the yiew taken by the Supreme Court of New York in the case of The People v. the Judges of the N. Y. Common Pleas (2 Denio, 197), refusing a mandamus, is in accordance with good, sense. We should feel disposed to go as far as possible to prevent a failure of any right, but we do not perceive any such necessity in these cases. It is questionable, under the statute, whether any affirmative action is contemplated or required of the state court, from which a cause is removed, which could render any mandate necessary in any case. The party filing the petition gives security that he will enter copies of the proceedings in the United States court, and, thereupon, it is made the duty of the state court “to proceed no further in the cause.”. But there is nothing indicated by the statute as necessary to be done by the court to complete the removal. The original record is not to be removed from the state court. It is only to ,.abstain from further action. The moving party himself files the necessary papers, which are copies, and not originals, and if the clerk will not give him certified copies he may file'sworn copies, under the statute of 1833.—4 Stat. U. S.,. 633. That statute provides a very simple method of obviating any refusal of the clerk, and we do not perceive that the court has any important functions in the matter, or that its order can prevent the filing of the needful copies. In Ableman v. Booth, 21 How. R., 506, where no return was made to a-writ of error, the defect was supplied by sworn copies; and if the statutes concerning the removal of causes do not make the removal dependent on the action of the state court, there can be no possible necessity for mandamus, and any subsequent procedure in the cause, if unlawful, must be reached in another way. — 583 — Without deciding whether or not this Court has any jurisdiction to interfere in such a case as is presented to us, we think the relator is precluded from asking it, and that the remedy sought is not appropriate. The other Justices concurred.