Mandamus will not lie to correct the decision of the Circuit
Court that a party to the record -- in this case, a state -- is not
an indispensable party to the suit and that a separable and
removable controversy exists. Such a decision is within the
jurisdiction and judicial discretion of the court, and can be
reviewed by appeal after final judgment in the case.
The mere presence on the record of a state as a party plaintiff
will not defeat the jurisdiction of the federal court when it
appears that the state has no real interest in the controversy, and
it is the duty of the Circuit Court to ascertain whether the state
is an actual party by consideration of the nature of the suit, and
not by reference to the nominal parties.
The Circuit Court having held that the State of Nebraska was not
an actual and necessary party plaintiff to a suit, brought in its
name by the Attorney General against a nonresident railroad company
to enjoin it from charging more than the rates fixed in a statute
of the state and from disobeying orders of the State Railway
Commission, refused to remand the case; as such decision may
clearly have been correct, was within the jurisdiction of the
circuit court, and involved no abuse of judicial discretion, this
Court will not review the decision on petition for mandamus.
On June 15, 1907, the State of Nebraska, William T. Thompson,
Attorney General, Nebraska State Railway Commission, Hudson J.
Winnett, J. A. Williams, and Henry T. Clarke, Jr., as members of
the Nebraska State Railway Commission of the Nebraska brought suit
against the Chicago, Burlington & Quincy Railway Company to
enjoin that company from charging more for the transportation of
freight and passengers within the State of Nebraska than the rates
fixed for such transportation in certain acts of the Legislature of
the State of Nebraska, and also from disobeying the orders of the
Nebraska State Railway Commission, and from concealing from that
commission the condition of its business, and from making any
unlawful discrimination in violation of the state statute.
Page 209 U. S. 437
June 22, the defendant company filed its petition for the
removal of the action to the circuit court of the United States.
The petition for removal alleged:
"Your petitioner further avers that, in the above-entitled suit,
there is a controversy which is wholly between citizens of
different states, to-wit, a controversy between your petitioner,
Chicago, Burlington & Quincy Railway Company, which your
petitioner avers was at the time of the commencement of this suit,
ever since has been, and now is, a corporation created and existing
under and by virtue of the laws of the State of Iowa; the said
William T. Thompson, Attorney General of the State of Nebraska, one
of the plaintiffs, who your petitioner avers was at the time of the
commencement of this action, ever since has been, and still is, a
citizen and resident of the State of Nebraska; the Nebraska State
Railway Commission, a board organized under the laws of the State
of Nebraska for the supervision of railways in said state, and the
members composing the said board, whom your petitioner avers were
at the time of the commencement of this suit, ever since have been,
and still are, citizens and residents of the State of Nebraska; the
said Hudson J. Winnett, one of the plaintiffs and a member of the
aforesaid Nebraska State Railway Commission, who your petitioner
avers was at the time of the commencement of this action, ever
since has been, and still is, a citizen and resident of the State
of Nebraska; the said J. A. Williams, one of the plaintiffs and a
member of the aforesaid Nebraska State Railway Commission, who your
petitioner avers was at the time of the commencement of this
action, ever since has been, and still is, a citizen and resident
of the State of Nebraska, and the said Henry T. Clarke, Jr., one of
the plaintiffs and a member of the aforesaid Nebraska State Railway
Commission, who your petitioner avers was at the time of the
commencement of this action, ever since has been, and still is, a
citizen and resident of the State of Nebraska. And your petitioner
avers that it was not at the time of the commencement of this suit,
nor since has been,
Page 209 U. S. 438
and is not now, a resident or citizen of the State of
Nebraska."
"Your petitioner further avers that the State of Nebraska, as a
party plaintiff in the said suit, is not a proper or necessary
party in the said suit; that the said State of Nebraska is not the
real party in interest in the said suit; that the said State of
Nebraska has no interest, beneficial or otherwise, in the said
suit, and has been named as a party plaintiff simply for the
purpose of depriving the circuit court of the United States of
jurisdiction over this suit."
Bond was filed with the petition for removal and also the
transcript of the record in the office of the Clerk of the Circuit
Court of the United States for the District of Nebraska on the
third day of July, 1907.
Plaintiffs then, on July 12, filed a motion to remand the case
to the Supreme Court of the State of Nebraska on the ground that
the circuit court of the United States did not have jurisdiction
over the subject matter of said action or of the parties thereto,
and had no jurisdiction to hear or determine the cause. The motion
to remand, having been argued and submitted to the court, was
overruled for reasons set forth in an opinion.
Subsequently, leave was granted to file a petition in this Court
for a writ of mandamus directing the remanding of the action to the
Supreme Court of the State of Nebraska, and, being filed, a rule
was entered thereon directing the District Judges for the District
of Nebraska, holding the circuit court of the United States in and
for that district, to show cause why said petition for mandamus
should not be granted.
The judges made due return to the rule in which, after reciting
the proceedings had in the circuit court, they stated that it
became and was their duty as judges holding that court to hear the
argument on the motion to remand, and consider and decide that
motion, which, pursuant to said duty, the said judges heard and
decided accordingly. They further showed that the motion to remand
was denied by the judges
Page 209 U. S. 439
holding the circuit court, in the exercise of the jurisdiction
conferred upon them by law, and that their decision upon the motion
was in the exercise of judicial judgment and discretion vested in
them. The return, and as a part thereof, was accompanied by a
complete transcript of the record of the cause in the circuit
court.
Page 209 U. S. 440
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The motion to remand presented for decision the question whether
there was in the case a controversy wholly between citizens of
different states to the complete determination of which the State
of Nebraska was not an indispensable party. If defendant's
contention was correct, the action could have been originally
brought in the federal court, and its jurisdiction of the case was
complete on removal. The circuit court
Page 209 U. S. 441
was called upon to determine that question and to exercise
judicial discretion in deciding it. This being so, its jurisdiction
was complete, and if it erred in its conclusions, the remedy is not
by writ of mandamus, which cannot be used to perform the office of
an appeal or writ of error. The applicable principles have been
laid down in innumerable cases.
Ex Parte
Bradley, 7 Wall. 364;
Ex Parte Loring,
94 U. S. 418;
In re Rice, 155 U. S. 396;
In re Atlantic City Railroad,164 U.S.
633.
It appeared in the case of
In re Pollitz, Petitioner,
206 U. S. 323,
that Pollitz had brought suit in the supreme court of New York
against the Wabash Railroad Company and a number of defendants.
Pollitz was a citizen of the State of New York; a number of the
defendants were citizens of the State of New York; the Wabash
Railroad Company was a corporation organized under the laws of
states other than New York. The Wabash Railroad Company filed a
petition to remove the case to the Circuit Court of the United
States for the Southern District of New York. The petition for
removal alleged that there was in the cause a controversy wholly
between citizens of the different states to the determination of
which controversy the defendants, citizens of the State of New
York, were not indispensable or necessary parties. The cause was
removed, and Pollitz made a motion to remand, which was denied.
Pollitz applied to this Court for a writ of mandamus directing the
remanding of the cause to the state court. The rule was entered,
and a return was made to the effect that the order denying the
motion to remand had been made and entered into the exercise of the
jurisdiction and judicial discretion conferred upon the circuit
judge by law, and for the reasons expressed in the opinion filed
with the order.
The rule was discharged and the petition dismissed, and the
court said (
206 U. S.
330):
"The suit was commenced in the state court by a citizen and
resident of the City, County, and State of New York against a
corporation, a citizen of the State of Ohio, and other defendants,
many of whom were residents and citizens of the
Page 209 U. S. 442
State of New York, the value of the matter in dispute, exclusive
of interest and costs, exceeding the jurisdictional sum."
"The defendant the Wabash Railroad Company, a citizen of Ohio,
filed its petition and bond in proper form for the removal of the
suit into the United States Circuit Court for the Southern District
of New York, on the ground of separable controversy so far as it
was concerned, and it was removed accordingly. A motion to remand
was made and denied by the circuit court, which held that the
controversy was separable, and that the other defendants were not
indispensable or necessary parties to the complete determination of
that separable controversy."
"The issue on the motion to remand was whether such
determination could be had without the presence of defendants other
than the Wabash Railroad Company, and this was judicially
determined by the circuit court, to which the decision was by law
committed."
"The application to this Court is for the issue of the writ of
mandamus directing the circuit court to reverse its decision,
although, in its nature, a judicial act, and within the scope of
its jurisdiction and discretion."
"But mandamus cannot be issued to compel the court below to
decide a matter before it in a particular way, or to review its
judicial action had in the exercise of legitimate jurisdiction, nor
can the writ be used to perform the office of an appeal or writ of
error."
"Where the court refuses to take jurisdiction of a case and
proceed to judgment therein when it is its duty to do so, and there
is no other remedy, mandamus will lie unless the authority to issue
it has been taken away by statute.
In re Grossmayer,
177 U. S.
48;
In re Hohorst, 150 U. S.
653. And so where the court assumes to exercise
jurisdiction on removal when, on the face of the record, absolutely
no jurisdiction has attached.
Virginia v. Paul,
148 U. S.
107;
Ex Parte Wisner, 203 U. S.
449. "
Page 209 U. S. 443
"In
In re Hohorst, supra, the bill was filed in the
Circuit Court of the United States for the Southern District of New
York against a corporation and certain other defendants, and was
dismissed against the corporation for want of jurisdiction. From
that order, complainant took an appeal to this Court, which was
dismissed for want of jurisdiction because the order, not disposing
of the case as to all the defendants, was not a final decree from
which an appeal would lie.
148 U. S.
148 U.S. 262. Thereupon an application was made to this
Court for leave to file a petition for a writ of mandamus to the
judges of the circuit court to take jurisdiction and to proceed
against the company in the suit. Leave was granted and a rule to
show cause entered thereon, upon the return to which the writ of
mandamus was awarded.
In re Atlantic City Railroad,
164 U. S.
633."
"In
Ex Parte Wisner, Wisner, a citizen of the State of
Michigan, commenced an action at law in the Circuit Court for the
City of St. Louis, State of Missouri, against Beardsley, a citizen
of the State of Louisiana. After service of summons on Beardsley,
he filed his petition to remove the action from the state court
into the Circuit Court of the United States for the Eastern
District of Missouri, on the ground of diversity of citizenship,
with the proper bond, and an order of removal was made by the state
court, and the transcript of record was filed in the circuit court.
Wisner (who had had no choice but to sue in the state court) at
once moved to remand the case, on the ground that the suit did not
raise a controversy within the jurisdiction of the circuit court,
and that, as it appeared on the face of the record that plaintiff
was a citizen and resident of Michigan, and defendant a citizen and
resident of Louisiana, the case was not one within the original
jurisdiction of the circuit court, in accordance with the statute
providing that, where jurisdiction is founded only on the fact that
the action is between citizens of different states, suit shall be
brought only in the district of the residence of either the
plaintiff or the defendant. The motion to remand was denied,
Page 209 U. S. 444
and Wisner applied to this Court for a writ of mandamus, which
was subsequently awarded."
"In the present case, the removal was granted and sustained on
the ground that there was a controversy between the removing
defendant and plaintiff, which could be fully determined as between
them without the presence of the other defendants. That being so,
the suit might have been brought originally in the circuit court
against the railroad company as sole defendant."
"If the ruling of the circuit court was erroneous, as is
contended, but which we do not intimate, it may be reviewed after
final decree on appeal or error.
Missouri Pacific Railway
Company v. Fitzgerald, 160 U. S. 556,
160 U. S.
582."
If this case is one wherein there was a controversy wholly
between citizens of different states, to the complete determination
of which other parties to the record were not indispensable or
necessary, then, the removal being properly sought on that ground,
the federal court had jurisdiction. If the State of Nebraska was
not an indispensable party by reason of its interest in the
controversy, its presence on the record as a plaintiff would not
defeat the jurisdiction of the federal court. And to the circuit
court was committed the decision of those questions in the first
instance, the correctness of which cannot be examined upon this
application.
We must add that the mere presence on the record of the state as
a party plaintiff will not defeat the jurisdiction of the federal
court when it appears that the state has no real interest in the
controversy. And in the present case the circuit court was not
bound to adjudicate the question merely by an inspection of the
nominal parties to the record, for the mere presence of the State
of Nebraska as a party plaintiff was not of itself sufficient
necessarily to defeat the jurisdiction of the federal court. It
became, and was, the duty of the circuit court to determine the
question whether the State of Nebraska was an actual party
plaintiff in the present suit, and to determine that question by
consideration of the nature
Page 209 U. S. 445
of the case as presented by the whole record, and not "by a
reference to the nominal parties to the record."
This the circuit court did, and, from an inspection of the
entire record, for the reasons stated in the opinion filed, the
court held that, although the State of Nebraska was a nominal party
plaintiff on the record, yet it had no real substantial legal
interest in the controversy. The complaint alleged that the
Nebraska State Railway Commission was charged with the duty to
regulate proper and lawful intrastate rates upon the railroad lines
in the State of Nebraska, and to enforce thereon all lawful
intrastate rates and charges for the transportation of passengers
and freight, and to prevent discrimination in such intrastate
freight and passenger rates and charges, and alleged the duty of
the Attorney General to bring all suits necessary for that purpose;
the suit had for its object and purpose merely the securing of an
injunction against the defendant company, to restrain that company
from charging for the transportation of freight and passengers
within the State of Nebraska more than the rates fixed by the state
authority for that purpose, and from disobeying orders of said
Nebraska State Railway Commission, and from concealing from said
commission the true condition of its business, and from making any
unlawful discrimination in issuing intrastate passes, mileage
tickets, and transportation within the State of Nebraska.
The question whether the State of Nebraska is the real party
plaintiff must be determined from the consideration of the nature
of the case as disclosed by the record. If the nature of the case
is such that the State of Nebraska is the real party plaintiff, the
federal court will so decide for all purposes of jurisdiction, even
though the state were not named as a party plaintiff. If the nature
of the case is such that the state is not a real party plaintiff,
the federal court will so decide for the purposes of jurisdiction,
even though the state is named nominally as a party plaintiff.
The question whether such a case as this is one in which
Page 209 U. S. 446
the state is the real party in interest and the real party
plaintiff was determined by this Court in
Missouri Kansas &
Texas Railway Company v. Missouri R. & Warehouse
Commissioners, 183 U. S. 53, where
the only question presented was whether, in a suit brought to
enjoin a railroad company from charging greater rates within the
State of Missouri than those fixed by state authority, the State of
Missouri was the real party plaintiff. The state was not joined as
a party plaintiff, but the question had to be determined not by a
view of the nominal parties to the record, but from the
consideration of the nature of the case as shown by the whole
record. The defendant company presented to the state court a
petition for removal, which was denied. The supreme court of the
state held that it was proper to go behind the face of the record
and inquire who was the real party plaintiff; and, after making
such examination, decided that the state was the real party
plaintiff, and that the federal court had no jurisdiction on the
removal. The case was brought to this Court for a review of the
decision of the Supreme Court of Missouri, and this Court,
recognizing the rule that a mere inspection of the parties named as
the plaintiffs was not conclusive, examined the record and the
nature of the case, and, in an opinion rendered by Mr. Justice
Brewer, held that the nature of the case was such that the State of
Missouri was not a real party in interest and not a real party
plaintiff.
The court analyzed the nature of the proceeding, showed that
there was nothing in such an action which affected the state as
such, and that the relief sought did not inure to the state alone,
and that a decree in favor of the plaintiff would not effectively
operate in favor of the state.
The circuit court might clearly have been correct in its
decision that the present case was one in which the State of
Nebraska was not the real party plaintiff, but that decision could
not be reviewed by mandamus.
The circuit court was called upon on this record to decide
whether the State of Nebraska had any real or legal interest
Page 209 U. S. 447
in the controversy alleged to have been wholly between citizens
of different states, and it was a decision which the court had a
right to make, involving no abuse of judicial discretion. A
premature review cannot be obtained by a writ of mandamus.
Without expressing any opinion as to whether the state was a
necessary party to the relief asked, which involved the
removability of the case, this Court bases its judgment on the
mandamus entirely upon the ground that, as the circuit court had
jurisdiction to pass upon the question of the removability of the
case, and as its order overruling the motion to remand was subject
to be reviewed by a higher court after the case had been disposed
of by final judgment, the remedy was by appeal, and not by
mandamus.
Rule discharged; petition dismissed.
