Judge v. Arlen

Seevers, J. 1. Nuisance: intoxicating liquors: abatement: vested rights: removal of causes to federal courts. The petitions in the above-named cases are substantially alike, and state that the defendants are engaged seEing: keeping and maintaining a place for the sale of intoxicating liquors, thereby creating a nuisance; and the relief asked is that the nuisanee be enjoined and abated. The defendants severally answered the petitions, denied the allegations thereof, and asked that the causes be removed to the federal court upon the ground that a federal question was involved. A proper, and sufficient petition was filed asking such removal, in which the federal question was, in substance, stated to be that, long prior to the passage of the statute under the provisions of which the action was brought, the defendant had purchased the real estate described in the petition for the purpose of selling beer thereon; and procured fixtures and furniture for such business, and placed them on the real estate; and that the same were not fitted for any other business, and would be rendered practically valueless if they should be enjoined from carrying on said business, in which they had been lawfully engaged for many years. We understand the federal question stated in the petition to be that, if the statute is enforced, as the plaintiff claims it should be, the effect will be to deprive the defendants 188 of their property without compensation and due process of .law, and therefore the statute conflicts with the constitution of the United States. The application for the injunction was made to the judge of the circuit court in vacation, and, upon filing the petition for removal, he held that a federal question was involved, and refused to-proceed any further with the .hearing. In so holding we are of the opinion that lie erred. 2. Removal to Federal Courts: appeal: better practice. It is to be regretted that the state courts are called upon to determine questions in relation to the removal of causes .to the federal courts.. Such decisions are not ...... ... binding on the federal courts, and may be reviewed therein; and, as the supreme court of the United States is of necessity the court of last resort in such cases, to prevent unseemly conflicts of jurisdiction, the state courts must regard the decision of the federal court as to such questions as final and conclusive on them. It would therefore seem to be the better practice, When a petition for removal is presented to the state court, and a decision is made, or if the court entertains the petition, but refuses to proceed and try the case,' to remove the record to the federal court, and move to remand before appealing to this court. Rut, as this course has not been adopted, it becomes our duty to determine whether the judge or court below erred in holding that a federal question was involved. To enable us to do this, it is necessary to look into the petition for removal. This we think we are authorized to do, and that such is our duty. The question presented by the .record before us is not a new one, and we understand it to have been determined in MeLane v. Leicht, 69 Iowa, 401, adversely to the holding below. It is not deemed necessary to add anything to what is said in that case. Counsel for the appellees cite and rely on State v. Walrvff, 26 Fed. Rep., 178. The facts in that ease are materially different, and the decision, we think, is clearly distinguishable. Reversed.-