Hickman v. Missouri, K. & T. Ry. Co.

• Decision Date: 30 June 1899
• Citation: 151 Mo. 644,52 S.W. 351
• Court: Missouri Supreme Court
• Parties: HICKMAN et al. v. MISSOURI, K. & T. RY. CO.

52 S.W. 351

151 Mo. 644

HICKMAN et al. v. MISSOURI, K. & T. RY. CO.

Supreme Court of Missouri.

June 30, 1899.

REMOVAL OF CAUSE — ACTION BY RAILROAD COMMISSIONERS — STATE REAL PARTY — OVERRULING MOTION — TRIAL.

1. Under Rev. St. § 2653, authorizing actions by the board of railroad and warehouse commissioners against railroads charging excessive rates, and imposing a penalty on them, the commissioners are merely formal parties, the real party being the state, and the action is consequently not removable to a United States court, though the defendant is a citizen of another state.

2. The overruling of a motion to remove a cause that is not removable to a federal court is notice to the parties that the state court has assumed jurisdiction, and will try the case, and defendant cannot delay the trial by protesting against its jurisdiction, and demanding time to decide whether or not to submit to it; and a judgment against him after a trial in which he took no part will be sustained.

In banc. Appeal from circuit court, Cooper county; D. W. Shackelford, Judge.

Action by H. W. Hickman and others against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiffs, the defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. Sam B. Jeffries, Atty. Gen., for respondents.

BRACE, J.

This is an appeal by the defendant from a decree and judgment of the circuit court of Cooper 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: "H. W. Hickman, James Cowgill, and Joseph Flory, constituting 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 commissioners 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 Cooper, 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 board of railroad and warehouse commissioners aforesaid, proceeded, on the 16th day of July, 1895, after formal notice had been given to defendant, to examine into and determine upon the reasonableness of the charges made by said defendant for carrying freight and passengers over the bridge aforesaid; that it was disclosed by said examination that the defendant was charging more for carrying passengers and freight over said bridge than is authorized by law; that said defendant belongs to the class of railroad corporations designated by the laws of the state of Missouri as `Class A'; that said class is only authorized to charge passengers at the rate of 3 cents per mile each; that said Boonville Bridge is not exceeding one mile in length; that said defendant charges for carrying each local passenger over said bridge the sum of three cents per mile; that, in addition thereto, the said defendant makes an arbitrary charge of 25 cents for carrying each local passenger on its line of railway over said bridge; that said charge of 25 cents so made, demanded, and received of each local passenger by said defendant is illegal, improper, and unauthorized by law; that said defendant charges and collects on freights transported over said bridge and between local stations upon the line of its railway, in addition to the duly-established rates for such transportation, as shown in tariffs filed in the office of said railroad and warehouse commissioners, the sum of five (5) cents per one hundred pounds on freights in lots of less than car loads, and two cents per one hundred pounds on freights in car loads; that said charges so made, demanded, and received are excessive, unauthorized, and in violation of law; that on the 22d day of July, 1895, plaintiffs, as the board of railroad 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 railway company that the arbitrary charges made by defendant for crossing passengers and freight over the bridge at Boonville, Missouri, aforesaid, be discontinued; and that a copy of said finding and order was by said plaintiffs forwarded to the general manager of said defendant's road. 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 over 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 Boonville constitutes a part. Plaintiffs therefore ask that this court may issue a writ of injunction herein, or 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. R. F. Walker, Attorney General, for Plaintiffs."

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 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 nonresident of the state of Missouri, in which 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 Cooper 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 ($2,000); 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 further 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 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 Cooper circuit court. At the January term, 1896, of the Cooper circuit court the case was continued by the court on its own motion. At the May term, 1897, of the said court, the case was again continued, on application of the plaintiff, to the October term, 1897, of said court, at which term the case, over the protest of the defendant, and its objections to the jurisdictions of said court, was taken up and tried on the evidence of the plaintiffs, without any participation by the defendant in the trial, and the decree rendered as prayed for in their petition, with judgment for costs. Afterwards, in due time, the defendant filed its motion for new trial and in arrest of judgment, which being overruled, it perfected its appeal to this...