Ex parte In the Matter of the State of Nebraska, Petitioner. riginal, No. 15

• Court: United States Supreme Court
• Writing for the Court: Fuller
• Citation: 52 L.Ed. 876,209 U.S. 436,28 S.Ct. 581
• Parties: EX PARTE: IN THE MATTER OF THE STATE OF NEBRASKA, Petitioner. riginal
• Docket Number: No. 15,O
• Decision Date: 20 April 1908

209 U.S. 436 28 S.Ct. 581 52 L.Ed. 876 EX PARTE: IN THE MATTER OF THE STATE OF NEBRASKA, Petitioner. No. 15, Original. Argued March 17, 1908. Decided April 20, 1908.

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 State of 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 cocealing from that commission the condition of its business, and from making any unlawful discrimination, in violation of the state statute.

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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,

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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 3d 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 circiut 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 fouth 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

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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.

Messrs. William T. Thompson and William B. Rose for petitioner.

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Messrs. William D. McHugh and Maxwell Evarts for respondents.

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

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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....