151 Mo. 644 | Mo. | 1899
This is an appeal by the defendant from a decree and judgment of the circuit court of Oooper county in favor of the plaintiffs.
At the time the suit was instituted the plaintiffs constituted the Board of Railroad and "Warehouse Commissioners of the State of Missouri. ¡
The petition is as follows:
II. W. Hickman, James Cowgill and Joseph Flory, cqnstituting the Board of Railroad ’ and Warehouse Commissioners of the State of Missouri, plaintiffs, vs. The Missouri, Kansas & Texas Railway Company, Defendant.
“Plaintiffs state that they are the regularly elected, duly qualified and acting Railroad and Warehouse Commissioner’s of the State of Missouri and constitute the board empowered by law to classify and regulate passenger and freight rates in the State of Missouri. That the defendant is a railroad corporation duly incorporated under the laws of the State of Kansas and authorized to do business in the State of Missouri; that said defendant owns and operates a line of railroad in this State, a portion of the main line of which is located in the county of Oooper, State of Missouri, and extends from said county across the Missouri river over a bridge to the county of Howard, in the State of Missouri; that said bridge over which said railroad is constructed is a part of the roadway of the same and is used as such; that said bridge is under the control and management of said defendant; that informal complaints have heretofore been made to plaintiffs as the Board of Railroad and Warehouse Commissioners aforesaid, that arbitrary, illegal and improper charges had been made by said defendant for carrying passengers and freight over that portion of defendant’s said road which passes over said bridge; that plaintiffs, under the authority given them as the
“That on the 22d day of July, 1895, plaintiffs as the Board of Eailroad and Warehouse Commissioners aforesaid, after having duly considered the complaints heretofore filed against the defendant as aforesaid, found that the same were sustained by proper and sufficient evidence and made and entered of record an order directed to the said defendant
“Plaintiffs state that they are informed and believe the fact to be that the defendant is disregarding and ignoring said order and is continuing in violation of law to charge, demand and -receive rates in excess of three cents per mile for carrying each passenger o-ver that portion of its road which consists of said bridge, and that said defendant continues to charge, demand and receive freight rates in excess of those authorized by law for carrying freight on that portion of its road of which said bridge over the Missouri river at Boon-ville constitutes a part.
“Plaintiffs, therefore, ask that this court may issue a writ of injunction herein o-r such other process, mandatory or otherwise, as may seem necessary in the premises, to restrain said defendant from further continuing to violate the law and the finding of said plaintiffs herein, acting as the Board of Railroad -and Warehouse Commissioners aforesaid, that obedience to said order may be required of defendant and that such other and further orders and decrees may be made in this cause as may seem upon a hearing to be right and proper in the premises.”
In due time the defendant appeared and filed its petition and bond for the removal of the cause to the circuit court of the United States, the petition being as follows:
“Your petitioner respectfully shows that it is the defendant in the above entitled suit; that at and prior to the time of the institution of this suit the defendant was, ever since has been, and now is, a corporation created and existing under the laws of the State of Kansas; and that at said times and dates, it was, has been, and now is, a citizen of the State of Kansas, and non-resident of the State of Missouri, in which*655 this suit is brought; that the plaintiffs in said suit, at the time of the institution thereof, all and each were, ever since have been and now are, citizens and residents of the State of Missouri. That the said suit is of a civil nature to enjoin the collection of certain charges for the transportation of passengers and freight over and across a bridge across the Missouri river, between the counties of Oooper and Howard, in the State of Missouri, and that the amount and matter in dispute in said suit exceeds, exclusive of interest and costs, the sum and value of two thousand dollars. That the controversy in said suit is wholly between citizens of different States, to wit: Between your petitioner, a citizen of the State of Kansas at the time of the bringing of said suit and at this time, and the said plaintiffs, who, each and all of them, were then, and still are, citizens of the State of Missouri, and your petitioner offers herewith a bond, with good and sufficient security, for its entry in the circuit court of the United States for the Central Division of the Western District of Missouri, on the first day of the next regular session or term, of a copy of the record in this suit, and for paying all costs that may be awarded by the circuit court of the United States, if said court shall hold that this suit was wrongfully or improperly removed thereto, and your petitioner prays this honorable court to proceed no farther herein, except to make an order for the removal of this case to said United States circuit court, and to accept the said surety and bond, and to cause the record herein to be removed into the said circuit court of the United States in and for the Central Division of the Western District of Missouri, and it will ever pray.”
At the October term, 1895, of the circuit court of Cooper county the defendant’s petition for removal was denied, and thereupon the defendant procured and filed in the United States circuit court at Jefferson City a transcript of the proceedings in the Oooper circuit court. At the January term, 1896, of the Cooper circuit court the case was continued by
(1) Under the laws of theUnited States, the circuit courts thereof have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law, or in equity, when the matter in dispute exceeds, exclusive of interest, the sum or value of two thousand dollars and in which the controversy is between citizens of different States. [25 U. S. St. at Large, p. 434, sec. 1.] Any such suit pending in a State court “may be removed into the circuit court of the United States for the proper district, by the defendant or defendants therein, being non-residents of that State.” [Ib., sec. 2.]
And by section 3 of said Act it is provided that whenever any party entitled to remove 'any such suit, “may make and file a petition in such suit in such State at the time, or at any time before the defendant is required by the laws of the State or the rules of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff......and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit
It is contended for the defendant, that when the petition and bond for removal was filed in the case, in the Cooper county circuit court, the jurisdiction of that court to take any further proceedings therein except to make an order transferring the case to the circuit court of the United States,, ceased, and that its proceedings thereafter which culminated in the decree aforesaid was coram non judice and void, therefore the decree and judgment should be reversed.
It may be conceded that the petition and bond for removal are in .proper form and that the petition states facts which if true are sufficient to authorize the transfer of the case to the circuit court of the United States under the statute cited, and it may be further conceded that an issue upon the facts stated in the petition could not be raised and tried in the State court for the purposes of determining the question of its jurisdiction. The State court “must take the facts to be as they are stated in the record and the petition; it has no jurisdiction to pass upon any such question; that is the exclusive province of the Federal Court.” [Black’s Dillon on Removal of Causes, sec. 191, and cases, note 30.] The jurisdiction of the State court, however, is not ousted by the mere filing of the petition and bond. “In order to warrant a removal from a court of a State into a circuit court of the United States, according to the terms of the Act, the necessary diverse citizenship must exist.” [Powers v. Chesapeake & Ohio Railway Co., 169 U. S. loc. cit. 99.].
The petition when filed becomes a part of the record and the defendant’s right of removal depends upon the facts as they appear 'from the whole record. [Stone v. South Carolina, 117 U. S. 430.] As was said by ‘Waite, C. J., in that case: “A State court is not bound to surrender its jurisdiction of a suit on a petition for removal until a case has been
“All issues of fact made upon the petition for removal must be tried in the circuit court, but the State court is at liberty to determine for itself whether, on the face of the record, a removal has been effected. If it decides against the removal and proceeds with the cause notwithstanding the petition, its ruling on that question will be reviewable here after final judgment under section 709 of the Revised Statutes. [Removal Cases, 100 U. S. 457, 472 ; Railroad Co. v. Missis
So that the question whether a removal would be effected by the filing of the petition and bond remained to be decided by the Cooper circuit court, on the face of the record as made up, after the filing of the same, and unless judicially informed by the records so made that the suit was removable, it. might proceed in the exercise of its jurisdiction.
The fact stated in the petition for removal that would entitle the defendant to the removal, was that the plaintiffs; are citizens of the State of Missouri, and the defendant is a citizen of the State of Kansas. Now, while this fact is not to be disputed, but taken as true, it further appears from the-record that “the controversy” inaugurated by their petition, is not between them in their individual character as citizens-, of the State of Missouri and the defendant, but in their official character as members of “The Board of Eailroad and Warehouse Commissioners of the State of Missouri.” Hence, it is argued, for the respondents by the Attorney-General, that-the controversy is not between citizens of different States, but between the State of Missouri and a citizen of the State of Kansas, and as the statute does not authorize the removal off a suit between a State and citizens, and a State can not be a citizen of any State; that it thus appears from the record that the case was not removable under the statute; the jurisdiction of the circuit court of Cooper county was not divested by the application for removal; and it committed no error in proceeding with the case to final judgment. This presents, the crucial question on this appeal.
Although the State of Missouri is not a nominal party to 'the suit, yet if it is the real party in interest, the controversy is between the State 'and the defendant, and the Federal statute does not apply; and the question whether the State is the •actual party to the controversy must be determined by a consideration of the whole record. [In re Ayers, 123 U. S. 443 ; Carson v. Hyatt, 118 U. S. 279 ; Hagood v. Southern, 117 U. S. 52 ; Maryland v. Baldwin, 112 U. S. 490.] The law looks to “things, not names, to the actors in controversies -and suits, not to the mere forms or inactive instruments used in conducting them, in virtue of some positive law.” [McNutt v. Bland, 2 How. loc. cit. 14.]
The positive law authorizing this action is section 2653, Revised Statutes 1889. The provisions of which, bearing upon the present inquiry, are as follows: “Where the complaint involves either a private or a public question as aforesaid, and the commissioners have ma.de a lawful order or requirement in relation thereto, and where such common carriel’, or the proper officer, agent or employee thereof, shall violate, refuse or neglect to obey any such order or requirement, it shall be lawful for the board of railroad commissioners, or any person or company interested in such order or requirement, to apply in a summary way, by petition, to any
By section 2658, it is further provided that: “To defray the necessary expenses of the railroad commissioners in making investigations and prosecuting suits, and to pay all necessary costs attending the same, there is hereby appropriated,, out of any money in the State Treasury not otherwise appropriated, the sum of ten thousand dollars, to be draAvn upon the warrant of the State Auditor, issued upon requisition of the railroad commissioners, approved by the Governor, which requisition shall be accompanied by an itemized statement of the costs and expenses to be paid.”
The general rule is that “when the plaintiff on the record' has no real interest in the subject-matter of the controversy, and can derive no advantage from the judgment, but the suit is required to be brought in his name because he holds the formal right to sue, although the action is really prosecuted' for the benefit of another, the record plaintiff is only a nominal party, whose citizenship Avill not affect the right of removal; such right Avill depend upon the relative citizenship of the real party in interest.” [Black’s Dillon on Removal of Causes, sec. 86.]
While neither of these cases, upon the facts in judgment,, for obvious reasons, can be regarded as direct authority in the present case, an analogue of which can not perhaps be found in the Reports, much reliance is placed upon the reasoning in each by counsel respectively; the Attorney-General contending that the case in hand is within the reasoning of the first, and counsel for defendant that it is within the reasoning of the last. So these cases may serve, if not for authority, at least as pointers to a proper solution of the question of “real interest” under this statute.
The State in its governmental capacity, having in previous sections of the statute made provision for regulating the rate and charges of common carriers for carrying passengers and freight, and provided for a hearing before its board of commissioners of all complaints for a violation of those regulations, and that the finding of the board shall be prima facie evidence of the reasonableness and justness of the charges by it found, in this section of the statute makes provision for a civil ¡action to enforce the requirement in behalf of two classes-of persons, first “the board of railroad commissioners,” second' “any person or company interested in such order or require
(2) Counsel for defendant in his reply brief contends that the judgment should be reversed, because the circuit court of Cooper county proceeded to trial when the defendant had no reason to expect that >a trial would be insisted on. It appears from the record that the cause came on for trial in the Cooper circuit court in due course nearly two years after defendant’s motion for a removal to the United States court had been overruled. By the overruling of that motion, the defendant was advised in the most direct and formal manner that the circuit court of Cooper county intended to maintain its jurisdiction to try and determine this cause in due course.
Thereupon it chose to stand upon its motion, filed a tran