This provision of law has been held constitutional.

In West Virginia in the early seventies all colored men were by law ineligible for jury service. A negro was there indicted for murder. It was held that he was entitled to nave his case removed to the United States Court for trial.1

The section is applicable only to cases in which such right is denied by the Constitution or laws of the State and not to cases where the denial results from the action of officers of the State, not authorized by the latter's Constitution or

statutes.

The whole subject has been very thoroughly reviewed by the Supreme Court of the United States.2

317. Right of Removal of Suits or Prosecutions Against Revenue Officers or Officers of Either House of Congress.-Section 33 of the Judicial Code provides that whenever any civil suit or criminal prosecution is commenced in a Court of a State against any officer appointed under or acting by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or when any suit is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed into the District Court of the United States.

This legislation had its origin in the so-called Force Bill.1

1 Strauder vs. West Virginia, 100 U. S. 303.

Kentucky vs. Powers, 201 U. S. 1.

4 Stat. 632, March 2, 1833.

The purpose is to protect the Federal Government against the possibly hostile proceedings of State tribunals. The collection of the Federal revenues may be greatly obstructed, if revenue officers of the United States can be prosecuted in the State Courts for acts done by them as such. The immediate occasion for this Act of Congress soon passed. It was not until forty-seven years had gone by, and after the statute itself had been amended, that its constitutionality came before the Supreme Court. Congress had made no special provision for the trial in the Federal Courts of alleged criminal violations of the State laws, and yet if the case which was removed into the Federal Court was a criminal prosecution that was the case which had to be tried. The Supreme Court, however, held that no legislation was needed. The case might be proceeded with in the United States Court as it would have been conducted in the State Court had no removal been had.2

A fairly broad construction has been given this statute. A corporal in the United States Army who had been detailed to aid a United States marshal in executing a warrant to arrest an alleged offender against the internal revenue laws, and who was indicted in the State Court for the murder of such offender, was held entitled to remove the case to the United States Court.3

This statute expressly includes both criminal prosecutions and civil suits. It follows that when a suit is brought in a State Court against a revenue officer of the United States to recover from him sums alleged to have been illegally exacted as taxes, he may remove the case to the United States District Court. The amount in controversy is immaterial.1

318. Removal Can Be Had to the District Court of That District Only in Which the State Court Suit is Pending.-Section 28 of the Judicial Code says that the removal shall be to the District Court of the proper district.

* Tennessee vs. Davis, 100 U. S. 257. Davis vs. South Carolina, 107 U. S. 597. Venable vs. Richards, 105 U. S. 636.

It has been contended that when neither the plaintiff nor the defendant are citizens of that district the suit may be removed to the district of the residence of one or the other on the ground that they are the only proper districts. In one case it has been so held.1 In this district the other view has been taken.

A citizen of Wyoming sued a Maryland corporation in a Montana State Court. The defendant sought to remove the case to the United States District Court for the District of Maryland. The State Court refused to order the removal. Defendant then filed a transcript of the record in the United States District Court for Maryland. The latter held that it had no jurisdiction. It was pointed out that section 29 of the Judicial Code, which tells how the right of removal given by section 28 shall be exercised, specifically says that the petition shall ask for the removal of the suit into the District Court to be held in the district where such suit is pending; and attention was called to the fact that such provision had been embodied in all the Federal Statutes from the original Judiciary Act to the Judicial Code.2

319. The Right to Remove a Case Cannot Be Given By Consent.-A case may be removed only when the Federal statute so provides. It can never be removed merely because both parties are willing that it shall be.

320. The Right to Remove May Be Waived.—On the other hand, as it is a mere right of the parties, and under the present statute, a right confined to the defendant, he can exercise it or not as he sees fit. He may so act as to show that he has elected not to do so. This election he will con

clusively evidence by not making his motion to remove within the time limited by law. It is easy to conceive of many other ways in which even before the expiration of the time in which, if at all, he must exercise this right, he may so act as to estop himself from so doing, upon the theory

'Stewart vs. Cybur Lumber Co., 211 Fed. 343.

* St. John vs. U. S. Fidelity & Guaranty Co., 213 Fed. 685.

that what he has done shows that he has agreed not to avail himself of it.

321. Right to Remove Not Waived By Contesting Case in State Court After Latter Has Refused Permission to Remove.-No such presumption can arise where the defendant has done all in his power to remove the case and has been held in the State Court against his will.

An Ohio administratrix sued an insurance company of New York in the Court of Common Pleas of Hamilton County, Ohio. The Insurance Company took the proper proceedings to remove the case to the United States Circuit Court for the Southern District of that State. The State Court refused to permit the removal. The Supreme Court held the subsequent proceedings of the Common Pleas Court to be a clear case of usurped jurisdiction, and that the defendant was not estopped by having defended itself in the State Court as best it could, after permission to remove had been refused.1

In a subsequent case the Supreme Court said, in answer to the objection that the defendant had gone on with his case after the State Court had refused to permit it to be removed and thereby waived his right to remove.

"Indeed, it is difficult to see what more he could have done than he did do to get out of court and take his suit with him. He remained simply because he was forced to remain, and is certainly now in a condition to have the original error of which he complained corrected in any court having jurisdiction for that purpose."2

322. Right to Remove Waived By Asking Affirmative Relief From State Court After Latter Has Refused Permission to Remove.-A defendant who has tried to remove his case and has been refused permission to do so, may, if the final judgment or decree be against him, sue out a writ of error from the Supreme Court and there assert that, as the denial of his petition to remove was erroneous,

'Insurance Co. vs. Dunn, 19 Wall. 214.

* Removal Cases, 100 U. S. 475.

the subsequent proceedings are not binding upon him. He may, however, by his conduct estop himself from contesting the jurisdiction of the State Court. He will do so if, after his case has been wrongfully retained, he asks for affirmative relief, as, for example, if he should bring a third party into the litigation.1

323. Defendant Cannot Waive in Advance His Right to Remove All Cases.-While a defendant can in a particular case so act as to waive his right of removal, he cannot in advance make any agreement by which he waives this right generally. The question as to the power to do so has most frequently arisen in connection with attempted removals by non-resident corporations of suits against them.

324. State Law Requiring Corporations to Agree Not to Remove Into Federal Courts Invalid.-There has always been a desire on the part of many of the States to prevent corporations of other States or countries, doing business within them, from taking their litigation into the Courts of the United States. The efforts of the States to attain this end have often come before the Supreme Court.

It has been clearly settled that any statute which requires a non-resident corporation as a condition of doing business in the State to agree that it will not remove any case into the Federal Court is invalid.1 Such a consent to forego its constitutional rights may not be exacted of a corporation whether it is or is not engaged in interstate commerce. One of the cases already cited was that of an insurance company, which was not conducting commerce between the States; the other of a railroad, which was.

325. A State May Revoke the License to Do Business of a Non-Resident Corporation Not Engaged in Interstate Commerce Which Removes a Case Into the Federal Courts.--The exercise, however, by a non-resident

'Texas & Pacific R'way Co. vs. Eastin & Knox, 214 U. S. 153.

1 Insurance Co. vs. Morse, 20 Wall. 445; Barron vs. Burnside, 121 U. S. 186.