In re Chicago, M., St. P. & PR Co.

• Decision Date: 20 May 1931
• Citation: 50 F.2d 430
• Parties: In re CHICAGO, M., ST. P. & P. R. CO. et al. STATE OF MINNESOTA v. CHICAGO, M., ST. P. & P. R. CO. et al.
• Court: U.S. District Court — District of Minnesota

50 F.2d 430 (1931)

In re CHICAGO, M., ST. P. & P. R. CO. et al. STATE OF MINNESOTA v. CHICAGO, M., ST. P. & P. R. CO. et al.

District Court, D. Minnesota, Fourth Division.

May 20, 1931.

Neil M. Cronin, City Atty., and Norton M. Cross, both of Minneapolis, Minn., for City of Minneapolis.

F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, Minn., for Chicago, M., St. P. & P. R. Co.

O'Brien, Horn & Stringer, of St. Paul, Minn., for Chicago, R. I. & P. Ry. Co.

SANBORN, District Judge.

The Chicago, Milwaukee, St. Paul & Pacific Railroad Company and the Chicago, Rock Island & Pacific Railway Company — which companies, for convenience, will be hereinafter referred to as the railroads — removed this proceeding to this court. Their petition asserts that they are both citizens and residents of states other than Minnesota; that the state of Minnesota is a nominal party, designated as the complainant in the title because of the provisions of section 4651, Mason's Minnesota Statutes 1927; that the suit in the state court was commenced by the city of Minneapolis by an appeal from an order of the Railroad and Warehouse Commission, and that the city is the real party in interest and the real complainant, and that the entire controversy is wholly between the city of Minneapolis and the railroads; that the proceeding is a suit of a civil nature, and that more than $3,000 is involved. Attached to the petition, aside from the bond on removal, are the findings and the order of the commission which is appealed from, the notice of appeal by the city, and certain exhibits.

The motion to remand is based upon many grounds, but there are actually two questions involved in the determination of this motion: (1) Is this a suit which may be removed from a state court to this court? (2) If it is such a suit, have the railroads a right to remove it?

While the past history of the controversy between the city of Minneapolis and the railroads has no direct bearing upon the questions involved, it is of assistance in understanding the exact situation with which the court is confronted.

The Chicago, Milwaukee, St. Paul & Pacific Railroad Company (hereinafter referred to as the Milwaukee) and the Chicago, Rock Island & Pacific Railway Company (hereinafter referred to as the Rock Island) operate their trains over tracks belonging to the Milwaukee to and from the Milwaukee Depot in the city of Minneapolis and to and from the Rock Island freight house and yards not far distant from the depot. Many trains pass over these tracks each day, and the tracks themselves cross at grade many of the heavily traveled streets of the city. For many years there has been a demand on the part of the citizens of Minneapolis that the grade of the railway tracks and the grade of the streets here involved be separated. In 1913 the city passed an ordinance requiring the Milwaukee to separate the grades by depressing its tracks. It brought suit in this court to enjoin the enforcement of the ordinance. Its enforcement was enjoined by Judge Booth. His decision is found in the case of Chicago, M. & St. P. Ry. Co. v. City of Minneapolis et al. (D. C.) 238 F. 384. In 1921 the city passed another ordinance requiring the railroads to depress these tracks, and a suit was brought by them in this court to enjoin its enforcement. While that suit was pending, the Legislature enacted chapter 336, Laws of Minnesota, 1925, which, among other things, provided: "The commission Railroad and Warehouse Commission may require any railroad company to construct overhead and maintain underground crossings and separate grades when, in its opinion, the interests and safety of the public require, and no overhead or underground crossing, nor separation of grade, shall be made except upon the petition therefor to the commission, and with the approval of the commission."

The enactment of this statute was called to the attention of the court, and resulted in an injunction against the enforcement of the ordinance on the ground that the ordinance could not be enforced unless the method of grade separation provided by it was approved by the commission; the court retaining jurisdiction to modify its decree if the commission granted approval. In the prior proceedings in this court, the railroads have admitted that in the public interest there should be a separation of grades, but have contended that the separation should be brought about by the elevation of the railway tracks, while the city has always contended that the proper and reasonable method of separating the grades was to depress the tracks.

The recitals in the decision of the commission, which is attached to the petition for removal, show that on the 25th day of August, 1928, a verified petition was filed with it, requesting the separation of the grades by the elevation of the railroad tracks; that this petition was signed by not less than 116 residents and owners of property adjacent to the railroad right of way or in the immediate vicinity thereof in South Minneapolis, Minn.; that this petition directed the attention of the commission to the matter of grade separation, and that the commission proceeded, upon the petition as well as upon its own motion in the interest and safety of the public, to investigate and determine the matter; that the city of Minneapolis objected to the jurisdiction of the commission, and procured from the state district court of Hennepin county an order directed to the commission to show cause why it should not be restrained from proceeding; that on November 30, 1928, that court denied the city an injunction, holding that chapter 336, Laws of 1925, gave to the commission jurisdiction of the matter in controversy before it; that on December 14, 1928, the city of Minneapolis again questioned the jurisdiction of the commission on the ground that neither the city nor the railroads were asking relief; that the railroads then filed answers to the petition, requesting grade separation by elevation and the apportionment of the cost incident thereto on such terms and conditions as might be just and equitable; that the matter finally came on for hearing on December 18, 1928; and that evidence to the extent of some four thousand pages of transcript and three hundred and seventy-four documentary exhibits was submitted. It appears that the city, while objecting to the jurisdiction of the commission, participated in the proceedings before it, and contended for grade separation by depression of the tracks. The commission reached the conclusion that the grades should be separated by elevating the tracks, and not by depressing them, and, aside from certain specific items of cost, provided that the expense should be borne two-thirds by the railroads and one-third by the city. It was from this order that the city appealed.

The proceedings before the commission were not judicial proceedings. The commission was acting in an administrative capacity. The controversy became a suit or a judicial proceeding, if at all, when the city appealed from the order of the commission. While the commission had a public duty to perform with respect to the question as to how the railroad and street grades should be separated, it had no pecuniary interest in the matter, and its function was to determine what method of grade separation it could approve and order, since, under the statute, its approval and order was required before the railroads could be compelled to make any separation of grades. That it might have had the right to enforce its order, if valid, does not make it an indispensable party in a judicial proceeding attacking the validity of that order.

The state of Minnesota has no pecuniary interest in the controversy, and is in no sense a real party in interest. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; M., K. & T. Ry. Co. v. Missouri Railroad & Warehouse Commissioners, 183 U. S. 53, 22 S. Ct. 18, 46 L. Ed. 78; Ex parte Nebraska, 209 U. S. 436, 28 S. Ct. 581, 52 L. Ed. 876; United States v. Beebe, 127 U. S. 338, 8 S. Ct. 1083, 32 L. Ed. 121.

Section 4650, Mason's Minnesota Statutes 1927, gave to the city the right of appeal. Section 4651 provides that, when an appeal is taken, the case shall be tried to the state district court "according to the rules relating to the trial of civil actions." It further provides that "the complainant before the commission, if there was one (otherwise the State of Minnesota), shall be designated as complainant in the district court, and the carrier or warehousemen as defendant," and that, if the court determines that the order appealed from is "lawful and reasonable," it shall be affirmed, but, if it shall be determined that the order is "unlawful or unreasonable it shall be vacated and set aside."

The court, on an appeal from an order of the commission, examines the whole matter in controversy. It receives evidence to determine whether the findings of fact made by the commission can be sustained. It does not try the matter anew as an administrative body nor substitute its findings for those of the commission. The making of regulations governing separation of grades is legislative or administrative, and not judicial. The question as to whether the order requiring the separation and prescribing the method to be used is lawful and reasonable is a judicial question. The order of the commission may be vacated if contrary to law, if beyond the powers of the commission, if unsupported by the evidence, or if so arbitrary as to indicate abuse of discretion and judgment. State v. Great Northern Ry. Co., 130 Minn. 57, 153 N. W. 247, Ann. Cas. 1917B, 1201.

A statute which attempts to give to the court administrative or legislative powers is unconstitutional. State v. Great Northern Ry. Co., supra; Steenerson v. Great Northern Ry. Co., 69 Minn. 353, 375, 72 N. W. 713; State v. Brill, 100 Minn. 499, 111 N. W. 294, 639, 10 Ann. Cas. 425; Duluth v. Railroad &...