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FORM No. 475.
Petition for removal of cause against person denied civil rights, from a State
to a United States court.42
[Title of State court and of cause.] To the
court [giving name in full]. The petition of Y. Z. shows:
I. That he is the defendant in the above entitled [here state nature and condition of the litigation in the State court.]
II. That your petitioner is a citizen of the United States and of the State of
[state grounds of removal, for instance,
action during the trial, or by discrimination against him in the sentence, or in the mode of executing the sentence. The denial or inability to enforce in the judicial tribunals of a State rights secured to a defendant by any law providing for the equal civil rights of persons citizens of the United States, of which $ 641 speaks, is primarily, if not exclusively, a denial of such rignts or an inability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at the trial of the case. In other words, the statute has reference to a legislative denial or an inability result. ing from it. Virginia v. Rives, 100 U. S. 313, 319.
So the refusal of the court and of the counsel for the prosecution to allow a modification of the venire, by which one third of the jury, or a portion of it, should be composed of persons of the colored race (to which the petitioner belonged), held an insufficient ground for removal. A mixed jury in a particu. lar case is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia (where the question arose), or by any Federal statute. Virginia v. Rives, 100 U. S. 313, 322.
42 The existence of a State statute that by its reference to the constitutional qualifications of voters appar. ently restricted the selection of jurors to white male citizens, held not suthcient to authorize the removal of an indictment on the ground that African citizens were excluded from act. ing as jurors, it appearing that since the adoption of the Fifteenth Amendment to the Federal Constitution, neither the legislative, executive, nor judicial authorities of the State had in any mode recognized as an exist. ing part of its Constitution that provision which discriminated against African citizens in the matter of suffrage, but that on the contrary, there had been an adjudication of the highest court of the State, to the effect that the State Constitution had been modified by the Fifteenth Amendment. Held, that the adoption
of the Fifteenth Amendment had the effect to remove from the State Con. stitution, or render inoperative the provision that restricted the right of suffrage to the white race, and thenceforward the statute that prescribed the qualifications of jurors was itself enlarged in its operation, so as to embrace all who by the State Constitution, as modified by the supreme law of the land, were qualified to vote at a general election. Neal v. Delaware, 103 U. S. 370, 387.
Allegations in the petition to the effect that the grand jury by which the petitioners were indicted, as well as the jury summoned to try them, were composed wholly of the white race, and that the colored race (to which the petitioner belonged) had never been allowed to serve as jurors in the county in any case in which a colored man was interested, held in
thus) of African race and descent, and black in color; that by virtue of the laws of said State of
no colored man is eligible to be a member of the grand jury, or to serve on a petit jury in the State ;43 that white men are so eligible, and that by reason of your petitioner being a colored man, and having been a slave, he has reason to believe, and does believe, that he cannot have the full and equal benefit of all laws and proceedings in said State of
for the security of his person, as is enjoyed by white citizens; that he has less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the l'nited States; that the probabilities of a denial of them to him as such citizen on any trial that may take place on the indictment in the courts of the State are much more enhanced than if he were a white man ;44
WHEREFORE, your petitioner prays that the said [indictment] and its prosecution be removed into the Circuit Court of the United States for the
for trial in the next ensuing term of said court*5 [if the defendant is in actual
sufficient to show ground for removal. The facts might have been as stated, and yet both grand and petit jury may have been impartially selected. Virginia 1. Rives, 100 ('. S. 313, 322; Gibson r. Miss., 162 id. 565, 584.
A denial of the rights permitting removal is primarily, if not exclusively, a denial of such rights, or inability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at and during the trial of the case. Murray 1. Louisiana, 163 ('. s. 101, 106. A party denied such civil rights at or during trial may bring the case to the U. S. Supreme ('ourt by writ of error.
Gibson 0. Miss., 162 ('. S. 565.
43 Where a subordinate officer of the State, in violation of State law, undertakes to deprive an accused party of a right which the statute Jaws accords to him, the accused party is not denied or unable to enforce his rights in the judicial tribunals of the State within the meaning of the statute, and hence is not entitled to removal that ground. Virginia 1. Rives, 100 U. S. 313, 321 ( where it was alleged that the oflicer intrusted with the selection of persons for the jury, contined his selection to white persons, and refused to select any person of the colored race).
See also Gibson 0. Miss., 162 L. S. 565; Murray v. Louisiana, 163 id. 101.
44 Right of removal sustained on substantially these allegations in a criminal case, in Strauder r. West Virginia, 100 U. S. 303, 310, which also sustained the constitutionality of the statute, holding that a right or immunity, whether created by the Federal Constitution, or only guar. anteed by it, even without any er press delegation of power may protected by Congress, and that consequently the provisions of $ 641 for the removal from a State into a Federal court of the case of one whose rights as guaranteed by the Fourteenth Amendment and U. S. R. S., $ 1977, are denied by the State court, are constitutional.
Exclusion of negroes from grand juries held contrary to the Four. teenth Amendment. Rogers r. Ala., 192 U. S. 226.
45 l'pon the filing in the State court before trial, of a duly verified petition that exhibits sufficient ground for the removal of a prosecu. tion, the cause is thus in legal etfect removed, and all subsequent proceedings in the State court are coram non judice, and absolutely void. Virginia v. Rives, 100 U. S. 313, 316; Virginia t". Paul, 148 id. 107, 116.
custody on process issued by the State court, may add, and that a writ of habeas corpus cum causa issue].48
[Date, signature, and address, etc., as on p. 799.]
[Verification as in Form No. 457.]
VIII. U. S. OFFICERS, AND REVENUE CASES.
(477) Certificate of counsel to ac
company petition for moval of suit or prosecution against officer, from State to United States court.
1. Revenue laws.
from State to United States
1. Revenue laws.] — Civil and criminal prosecutions against revenue officers and their subordinates, and those claiming rights or holding title under the Revenue Laws, are removable before trial in the cases provided for by $ 643 of the Revised Statutes."
Postal officers are provided for by $ 3991 of the same statutes.
2. The practice.] — In the cases of this class the application is not made to the State court, but directly to the United States court. The petition is to be presented with the certificate of counsel to the Circuit Court, if in session, but if not, to be filed with the clerk.
46 According to provision in U. S. R. S., $ 642. 47 Venable v. Richards, 105 U. S. 636.
FORM No. 476. Petition to remove cause from State to United States court, in action against
officer acting under Revenue Law.48 UNITED STATES OF AMERICA, District of
To the Circuit Court of the United States for the District of
Your petitioner [name of petitioner], shows:
I. That by service of [state whether by summons, petition or capias] on the
19 an action was commenced in the
court (giving title in full] by [naming plaintiff or plaintiffs), the object of which action was (specifying it, as for instance, thus: to recover from your petitioner certain sums which it is alleged that he as a deputy collector of internal revenue illegally exacted and collected as taxes upon snuff manufactured by the plaintiffs), which action has never been tried and is still pending against your petitioner in said court.
II. That such tax was exacted and collected in accordance with the rate established by law.
48 U. S. R. S., $ 643 — providing for removal of suit, etc., against “ any officer appointed under or acting by authority of any revenue law, or any person acting under or by authority of such officer ” — applies to marshals of the United States, their deputies and assistants, when engaged in enforcing a revenue law of the United States. Though such a marshal or deputy marshal is not an officer appointed under a revenue law, yet when engaged officially in lawful attempts to enforce a revenue law by the arrest of persons accused of offenses against it, he is an officer acting under the authority of that law. Davis . South Carolina, 101 U. S. 597, 600; Com. of Va. v. De Hart, 119 Fed. Rep. 626.
An action by a carrier against a collector of customs for money received as carrier charges from the consignee, to whom it was alleged that the collector's deputy had de livered dutiable goods, without giving the carrier the notice required by law, held removable, notwithstanding the objection that it was not the official duty of the collector to collect the carrier's money. The act allezed was, if done by the collector's deputy. done by him under color of office. Railroad Company v. McClung, 119 U. S. 454.
The right to removal is not taken away because the officer says in his defense that the act charged was not in fact done. The thing to be tried is whether it was done. Id.
III. That at the time when such tax was exacted and collected, your petitioner was (and still is] an officer of the United States, to wit, a deputy collector of internal revenue, and such tax was exacted and collected by him under the authority of the Internal Revenue Laws of the United States, and by right of his office, to wit, as deputy collector of internal revenue.
WHEREFORE, your petitioner prays that said cause may be removed from said [name of State court] to the Circuit Court of the United States for the
for trial, and that a certiorari issue [or, if the proceeding was commenced by capias, or by any similar form of proceeding by which a personal arrest is ordered, that a writ of habeas corpus cum causa issue''] pursuant to the laws of the United States. [Date, signature and address, etc., as on p. 456.]
[Verification as in Form No. 457.]
FORM No. 477. Certificate of counsel to accompany petition for removal of suit or prosecution
against officer, from State to 'United States court. UNITED STATES OF AMERICA, District of
In the Matter of the Petition of Y.
Z. for the removal of a suit by A.
to the l'. S. Circuit Court for the above District.
I hereby certify that I am an attorney [and counselor] at law of [the Supreme Court of the State of ]; that I am counsel herein for the above-named petitioner, Y. Z., and, as such counsel, have examined the proceedings against him mentioned in his petition hereto annexed, and carefully inquired into all the matters set forth therein, and I believe all the matters therein set forth to be true. [Date.] [Signature and office address of],
Counsel for Petitioner.
49 U'nder U. S. R. S., $ 643 —— providing for the removal of suits or criminal prosecutions against officers, etc., appointed or acting under the revenue Jaws — taking of a prisoner into custody under the writ of habeas
corpus cum causa issued upon the petition, operates to vest completely the jurisdiction of the Federal court over his person and the indictment against him, so that the right to proceed upon the bail bond given in the