Mystic Milling Co. v. Chicago, M. & St.P. Ry. Co.

• Decision Date: 27 September 1904
• Docket Number: 381,385-387.
• Citation: 132 F. 289
• Parties: MYSTIC MILLING CO. v. CHICAGO, M. & ST. P. RY. CO. et al. SAME v. ILLINOIS CENT. RY. CO. et al. SAME v. CHICAGO, ST. P.,M. & O. RY. CO. et al. SAME v. CHICAGO & N.W. RY. CO. et al.
• Court: U.S. District Court — Northern District of Iowa

132 F. 289

MYSTIC MILLING CO. v. CHICAGO, M. & ST. P. RY. CO. et al.

SAME v. ILLINOIS CENT. RY. CO. et al.

SAME v. CHICAGO, ST. P.,M. & O. RY. CO. et al.

SAME v. CHICAGO & N.W. RY. CO. et al.

Nos. 381, 385-387.

United States Circuit Court, N.D. Iowa, Western Division.

September 27, 1904

These actions were commenced in the district court of Woodbury county, Iowa, and respectively removed to this court by the defendants, and the plaintiff moves to remand them to the state court. The petition filed in the state court in No. 381 against the Chicago, Milwaukee & St. Paul Railway et al alleges, in substance: That the defendant Chicago, Milwaukee & St. Paul Railway Company is a corporation organized under the laws of the state of Wisconsin as a railway corporation and owns and operates a line of railway in said state and other states, including the state of Iowa, and to the city of Sioux City therein, and is a common carrier of passengers and property over its said lines of railroad. That the defendant Western Car Association is a corporation or association composed of different railroad companies, including the defendant railway company, running into said city of Sioux City, having its place of business in said city; and the defendant A. C. Jones is the general manager of said association, and controls and directs the handling of the freight and cars by the railroads belonging to said association. That said city of Sioux City is a terminal point of said defendant railway company, where it has constructed and uses side tracks and switches in and about the transaction of its freight and other business as a common carrier of property and passengers to, from, and in said city. That plaintiff is a corporation duly organized under the laws of Iowa, with its principal place of business at said city of Sioux City, and is there engaged generally in the business of buying and manufacturing into flour, feed and other products, large quantities of wheat, oats, corn and other like cereals, and shipping said grain in large quantities to its mills in said city (which it owns or controls and operates in such business), and its manufactured product in large quantities from said mills for export to various places in the United States, Canada, and to foreign countries over the defendant's line of railroad and those of other railroads running into said city of Sioux City. The aggregate of its shipments to and from its mills amounts to more than 4,500 car loads annually, a large part of which has been over defendant's line of railroad for a number of years. That since about December 7, 1903, the said defendant railway company, at the instance of defendant A. C. Jones, as manager of the defendant Western Car Association, has refused to perform its duties as a common carrier of property, and has refused to deliver to plaintiff at its city mill and to receive from it its manufactured product for shipment from said mill, because of the refusal of plaintiff to pay to said Jones a sum of money demanded by him, and which he claims is owing him by plaintiff for switching cars, but which plaintiff denies that it owes. That by reason of the defendant railway's refusal to so perform its duty as a common carrier of property the plaintiff is unable to operate its said mills to their full capacity, and it has suffered and will continue to suffer great damage by reason of the failure of the defendant to perform its said duty as a common carrier of property, and it has been damaged thereby in the sum of $30,000. That plaintiff has demanded of defendants in writing that defendant railway company perform its said duty as a common carrier of property, which it neglects and refuses to do. Wherefor plaintiff prays for a peremptory writ of mandamus to issue against said defendants, and each of them, commanding them forthwith to switch and place upon the track of the Mystic Milling Company at its said city mill all loaded cars consigned to plaintiff, including all cars upon the tracks of said defendant railway company at Sioux City, Iowa, and that they place said cars at the proper places on said tracks for unloading the same, and that they switch and remove from said mill track all empty cars now upon said track, and commanding them to continue the switching of cars as aforesaid to and from said track in the future as the same may be consigned to and from the said plaintiff; and plaintiff further asks that it have judgment against the defendants and each of them for the sum of $30,000 damages, and for costs of this action. The defendants in due time removed said cause to this court upon the ground of the diverse citizenship of the parties. The record has been filed in this court, and the plaintiff moves to remand said cause to the state court upon the grounds (1) that this court has no jurisdiction of the subject-matter of the action; (2) that the action is not of a civil nature within the meaning of the removal act of 1887-1888 (Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508).

The plaintiff's petition in each of the other actions against the defendants therein, and defendants' petition for removal of the same to this court, and the motions to remand, are substantially the same as in the case of the Chicago, Milwaukee & St. Paul Railway Company et al., except as to the amount of property received and shipped over the line of said respective defendant railway companies and the amount of damage sustained by plaintiff, which is alleged to be $20,000 in each case.

W. E. Gantt, for plaintiff.

J. C. Cook and Shull & Farnsworth, for defendant Chicago, M. & St. P. Ry. Co.

Bevington & Foley, for defendant A. C. Jones.

W. S. Kenyon, for defendant Illinois Cent. Ry. Co.

Wright & Call, for defendant Chicago, St. P.M.&O. Ry. Co.

J. C. Davis and Bevington & Foley, for defendant Chicago & N.W. Ry. Co.

REED District Judge (after stating the facts as above).

Do the facts alleged in the petition of plaintiff show a cause of action within the jurisdiction of this court? The substance of the petitions, so far as material to the question presented by the motions to remand, is stated in the foregoing statement. The contention of plaintiff is that the several actions are for judgments under the Iowa statute against the defendant railway companies, commanding them to perform their duties as common carrier of property, which it is alleged they have failed to do, and for the writ of mandamus to compel them to perform such duties; that, as an incident to such judgments, it also recover the damages sustained by it as authorized by said statute; and that such an action is not a suit of a civil nature, at law or in equity, within the meaning of the acts of Congress, of which the Circuit Courts of the United States have jurisdiction, either original or by removal from a state court. The defendant railway companies contend that the actions are primarily for the recovery of damages against them for their alleged failure to switch cars and freight to and from plaintiff's mills in Sioux City, and for a writ of mandamus as auxiliary relief in aid of such judgments for damages; that, as an action for damages is an ordinary action at law of a civil nature, they are within the jurisdiction of this court, the requisite diversity of citizenship and amount involved being shown. Originally, the writ of mandamus was a prerogative of the English crown, and issued in its name from the Court of King's Bench, requiring the performance of some specified duty which that court had previously determined, or at least supposed, to be consonant to right and justice. 3 Black. Com. 110. In modern times it issues as a judicial process in an action (often between private parties) in which a court of competent jurisdiction has previously adjudged or commanded the performance by the defendant therein of some specified duty, which, under the law, he should perform, and is the means by which such judgment or command is enforced. Kentucky v. Dennison, 24 How. 66-97, 16 L.Ed. 717. It is settled by the repeated decisions of the Supreme Court of the United States that the action for the writ of mandamus is not a suit of a civil nature at law or in equity, within the meaning of the acts of Congress creating the Circuit Courts of the United States and defining their jurisdiction; that such courts have no jurisdiction of such a suit, except it be in aid of a jurisdiction previously acquired; and that they cannot take jurisdiction of such suits by removal from the state courts under the removal acts. Bath County v.

Amy, 13 Wall. 244, 20 L.Ed. 539; Smith v. Bourbon Co., 127 U.S. 105, 8 Sup.Ct. 1043, 32 L.Ed. 73; McClung v Silliman, 6 Wheat. 601. 5 L.Ed. 340; Rosenbaum v. Bauer, 120 U.S. 450, ...