State ex rel. Missouri & North Arkansas Railroad Company v. Johnston

• Citation: 137 S.W. 595,234 Mo. 338
• Parties: THE STATE ex rel. MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. JOHNSTON, Judge, and ROACH, Secretary of State, et al
• Decision Date: 25 April 1911
• Court: United States State Supreme Court of Missouri

137 S.W. 595

234 Mo. 338

THE STATE ex rel. MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. JOHNSTON, Judge, and ROACH, Secretary of State, et al

Supreme Court of Missouri

April 25, 1911

Writ denied.

O. L Cravens for relator.

(1) The objection that the Wilson case did not land in the Federal court by filing the removal papers is not well taken. The filing of removal papers of itself accomplished the removal of the case to the Federal court for the present purposes. Black's Dillon on Removal, sec. 198; Company v Company, 3 S.D. 590; Wills v. Railroad, 65 F 532; Brown v. Murray, 43 F. 614; Miller v Tobin, 18 F. 609; Osgood v. Railroad, 18 Fed. Cas. No. 10, 604; Noble v. Assn., 48 F. 337; Black's Dillon on Removal, secs. 192, 195; Herryford v. Company, 42 Mo. 148; Stanley v. Railroad, 62 Mo. 508; Berry v. Railroad, 64 Mo. 533; Steamship Company v. Tugman, 106 U.S. 118. (2) The objection of multifariousness is not well taken. This objection is one that addresses itself to the discretion of the court. The objection is not looked on with favor by courts, and the suit will not be thrown out of court for this fault except in a clear case. Bracken v. Rosenthal, 151 F. 136. In no case could a bill in equity, wherein this objection most usually arises, be found multifarious where one general right on the part of the plaintiff is claimed, although the several defendants may have or claim distinct interests, where the common point of litigation is the same, and where the petition affects the entire subject-matter, as here, and the judgment settles the rights of all the parties to the suit in the point in litigation. Horner v. Miller, 147 F. 295; Rogers v. Mining Co., 154 F. 606; Field v. Insurance Co., 166 F. 607; Fowler v. Palmer, 160 F. 16; Bob v. Bob, 76 Mo. 419; Hanson v. Neal, 215 Mo. 217; Reinhart v. Long, 95 Mo. 396; Waddell v. Waddell, 99 Mo. 338; Boggess v. Boggess, 127 Mo. 305. (3) Prohibition is available in this case, and the Act of 1907 creates judicial or quasi-judicial power in the Secretary of State, (a) because public franchises can be divested only by quo warranto; (b) no power of official action can be founded on an unconstitutional law; (c) the Missouri courts will prohibit the usurpation of judicial power by a ministerial officer; (d) the act of revocation of the certificate of authority of plaintiff is of a judicial nature, as shown by many cases. Public franchises can be divested only by quo warranto. Railroad v. Greene, 30 Sup. Court Rep. (U.S.) 287; Ludwig v. Telegraph Co., 30 Sup. Court Rep. (U.S.) 280; Telegraph Co. v. Kansas, 30 Sup. Court Rep. (U.S.) 190; Kavanaugh v. St. Louis, 220 Mo. 496; State ex rel. v. Railroad, 140 Mo. 539; Monongahela N. Co. v. United States, 148 U.S. 312. The acts provided to be performed by the Secretary of State are judicial in their nature, and this is all that is required to render prohibition available as a remedy, and affect the rights of property of the corporation in a manner analogous to that in a quo warranto proceeding of a court acting judicially. 23 Cyc. 1614, 1620; 17 Am. and Eng. Ency. Law (2 Ed.), 886; 8 Cyc. 809; Railroad v. Baxter, 212 Ill. 638; People v. Mallory, 195 Ill. 582; In re Dumford, 7 Kan.App. 89; People v. Chase, 165 Ill. 527; State v. Gilbert, 47 N. E. (Ohio) 559. The power to inflict penalties is judicial. School Board v. King, 107 S.W. 247. No power of official action can be founded on an unconstitutional law. The Act of 1907 is void because it confers judicial power on an executive officer, and also violates numerous other provisions of the State and Federal Constitution hereinafter indicated, and this warrants prohibition. State ex rel. v. Nortoni, 201 Mo. 1; State ex rel. v. Eby, 170 Mo. 497; Bell v. District Court, 28 Nev. 280; Levy v. Superior Court, 105 Cal. 600; Railroad v. Co. Com., 127 Mass. 50; Sweet v. Hulbert, 51 Barb. (N. Y.) 312; State ex rel. v. Simons, 32 Minn. 540; State ex rel. v. Simons, 2 Spears L. (S. C.) 762; McDonald v. Guthrie, 43 W.Va. 595; 22 Am. and Eng. Ency. Law (2 Ed.), 230; State ex rel. v. Young, 29 Minn. 523; 6 Cyc. 606. The Missouri courts will prohibit usurpation of judicial power by a ministerial officer. State ex rel. v. Elkins, 130 Mo. 90; School Dist. v. Burris, 84 Mo.App. 654. The act of revocation of the certificate of authority of plaintiff is of judicial nature. High's Ex. Legal Rem. (3 Ed.) secs. 764a, 778a; State v. Stockhouse, 14 S.C. 417; Railroad v. Commissioners, 127 Mass. 50; Sweet v. Hulbert, 51 Barb. 312; Ex parte Roundtree, 51 Ala. 42; Chandler v. Railroad Courts, 141 Mass. 208; People ex rel. v. Supervisors, 121 N.Y. 345; Brazie v. County Court, 25 W.Va. 213; Railroad v. Commissioners, 127 Mass. 50; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Fort, 178 Mo. 518; State ex rel. v Ryan, 180 Mo. 52.

Elliott W. Major, Attorney-General, James T. Blair, Assistant Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

(1) The judge is prohibited, on the prayer of relator, by the writ issued, from doing the only thing he can do in the case -- ordering the cause removed to the Federal court. By the Act of March 13, 1907, it is only when relator actually removes this suit that the Secretary of State would be warranted in revoking relator's license under the act. Laws 1907, pp. 174, 175. The writ, on relator's specific prayer, absolutely prohibits the removal of the suit against relator, and therefore renders impossible the only condition, on the facts alleged, which could warrant Roach in acting in the premises. There is no allegation that the Secretary of State intends revoking relator's license until the suit in Newton county is removed, and the suit cannot be removed by reason of the writ in this case. There is no presumption that the Secretary will act improperly and without reason and in advance of an actual removal. Pacific Express Co. v. Seibert, 44 F. 315, affirmed in 142 U.S. 339. The fact that the petition misstates the legal effect of the statute in incorporating, by inference, the words "attempt to remove" therein, does not affect the case, since the demurrer does not admit such misstatement. Pennie v. Reis, 132 U.S. 470; Finney v. Guy, 189 U.S. 343. (2) Since the petition alleges no removal of the cause and the writ prohibits such removal, and since the Secretary cannot act until the case actually lands in the Federal court, the petition states only a moot case. Even if the Secretary attempted to misconstrue the law as including an "attempt to remove," the case would not be one which could be entertained. Arbuckle v. Blackburn, 191 U.S. 413. (3) The petition is multifarious. The bill, if it states anything, states two independent causes of action, without connection or common origin and against separate defendants; the evidence pertinent to one cause would not be pertinent to the other; each can be fully determined without reference to the other; the decree as to each defendant would be exclusively applicable to him; the relief against each defendant is distinct as against the other; neither defendant's obedience to the decree would affect that of the other; the misjoinder is manifest. Street's Fed. Eq. Prac., sec. 440; Gaines v. Chew, 2 How. 642; Brown v. Trust Co., 128 U.S. 412. And the objection of multifariousness, where manifest, as here, can be made by general as well as by special demurrer. Emmons v. Nat. Mut. B. & L. Ass'n, 68 C. C. A. 330; Hefner v. Northwestern Ins. Co, 123 U S. 751. (4) The fundamental objection to this proceeding, as against the Secretary of State, is that it is an attempt to invoke the writ of prohibition against a ministerial officer. "The proceedings to be prohibited must be of a judicial character. A prohibition would not be granted in respect of any proceeding belonging to the executive government of the country." Short on Mandamus and Prohibition, 452 (439); 3 Blackstone's Com. 112; 2 Spelling on Inj. and Extr. Rem. 1477, 1478. "And to warrant granting the writ to any organized body other than a court, it is necessary that the acts sought to have prohibited are purely judicial and not executive, administrative or legislative." 2 Spelling on Inj. and Extr. Rem. 1500 (sec. 1744); State ex rel. v. Goodier, 195 Mo. 559; Kalbfell v. Woods, 193 Mo. 687; Mayor v. Minor, 70 Ga. 191; Town of Davis v. Davis, 40 W.Va. 470; Board v. Spitler, 13 Ind. 239; Camron v. Kenfield, 57 Cal. 553; Spring Valley Water Works v. Bartlett, 63 Cal. 245; Smith v. Whitney, 116 U.S. 176; Buck v. Hardwicke, 23 Gratt. 51; Atkins v. Siddons, 66 Ala. 453. (5) "The object of the writ of prohibition is to prevent a court of peculiar, limited or inferior jurisdiction from assuming jurisdition of a matter beyond its legal cognizance. It can only be issued to restrain the exercise of judicial functions. Smith v. Whitney, 116 U.S. 176; High's Extr. Leg. Rem., sec. 765. (6) The better doctrine is that prohibition will not lie to prevent a State court from proceeding in a cause after petition and bond for removal thereof have been filed. High's Extr. Leg. Rem., sec. 787a; 2 Spelling on Inj. and Extr. Rem., 1495 (sec. 1736); Railroad v. Superior St., 63 Cal. 608. (7) The statute assailed we think constitutional, under the allegations of the petition in this case. Doyle v. Continental Ins. Co., 94 U.S. 540; Security Mut. Ins. Co. v. Prewitt, 202 U.S. 246.

OPINION

In Banc.

Prohibition.

VALLIANT C. J.

Relator prays a writ of prohibition to go against the judge of the circuit court of Newton county, the Secretary of State, and Scott Wilson.

The case stated in the petition is substantially as follows:

Relator is an Arkansas corporation owning and operating a railroad in this State in connection with its railroad in Arkansas, and is engaged in both interstate and intrastate...