State ex rel. Missouri Pacific Railway Company v. Williams

• Citation: 120 S.W. 740,221 Mo. 227
• Parties: THE STATE ex rel. MISSOURI PACIFIC RAILWAY COMPANY et al. v. GEORGE H. WILLIAMS, Judge
• Decision Date: 08 June 1909
• Court: United States State Supreme Court of Missouri

120 S.W. 740

221 Mo. 227

THE STATE ex rel. MISSOURI PACIFIC RAILWAY COMPANY et al. v. GEORGE H. WILLIAMS, Judge

Supreme Court of Missouri

June 8, 1909

Peremptory writ awarded.

Martin L. Clardy, Samuel H. West, Gardiner Lathrop, T. N. Morrow, R F. Walker and Geo. P. B. Jackson for relators.

(1) The suit instituted by Circuit Attorney Jones in St. Louis is a mere subterfuge and a disguise for an attempt to defeat the decrees of the United States Court at Kansas City and to prevent the plaintiffs in those suits from realizing any benefit or advantage thereunder. The suit of State ex rel Jones v. Relators and other Companies, is not within the jurisdiction of the circuit court of the city of St. Louis and it is an abuse of the jurisdiction of that court for the respondent to retain jurisdiction over that case and to refuse to dismiss the same and discharge relators therefrom. To conceal and disguise the real purpose of that suit, and to make a pretense of its being within the jurisdiction of the circuit court of St. Louis, the plaintiff in that case refers to and mentions various sections of the Constitution of Missouri and of the Revised Statutes of 1899 and of the Laws of 1907, which it is claimed have been violated by the relators, or which it is claimed authorize the institution and prosecution of the suit by Circuit Attorney Jones. These various provisions of law invoked and relied upon as the authority for prosecuting the case in the circuit court are as follows: Constitution, art. 12, secs. 14, 17 and 23; R. S 1899, secs. 1062, 1127 and 1128; Act March 19, 1907, Laws 1907, pp. 377-382. Relators contend: 1. That, with one possible exception, none of the statutes or sections of the Constitution or statutes mentioned have any application to passenger business. 2. That, as to that possible exception, the statute provides a proceeding to be conducted by the Board of Railroad Commissioners who alone are authorized to determine whether or not a suit shall be brought, and if brought, it must be by the commissioners, who alone, and not the Governor of the State, may call upon the Attorney-General to conduct such suit, for and in the name of the commissioners. 3. That the circuit courts of the State have no jurisdiction of such cases except by virtue of that statute, and only when the suit is instituted by the commissioners as above. 4. The circuit attorney of St. Louis has no general power to institute suits on account of matters outside the city of St. Louis, and no special power under any of the laws in question to institute this suit, and therefore there is no proper plaintiff -- no one authorized to sue or recover, standing in the attitude of plaintiff. 5. The State is not the real plaintiff in this case. 6. The court was without power to grant a temporary injunction or restraining order without bond. 7. The subject-matter of passenger rates was and is involved in the suits in the United States court, which acquired jurisdiction over said cases and over that subject-matter in June, 1907, and rendered decrees therein on March 8, 1909, and still retains jurisdiction over all matters involved in said suits and pertaining thereto, that it may, within the recognized jurisdiction of courts of equity, make such farther orders and decrees as may be necessary to accomplish justice between the parties to said cases, and the St. Louis Circuit Court and Respondent Williams exceeded and abused the jurisdiction of that court and unnecessarily and improperly brought about a conflict between the State and Federal Courts, by entertaining the case of State ex rel. Jones and in granting the restraining order therein. (2) Prohibition is the proper remedy to prevent a court from assuming a jurisdiction it has not or exceeding a jurisdiction it has, and whenever the attention of a superior court, authorized to issue writs of prohibition, is, by the proper party, formally called to the pendency of a suit in an inferior court which has no jurisdiction to hear and determine the same, the writ will issue. State ex rel. v. Aloe, 152 Mo. 484; State ex rel. v. Eby, 170 Mo. 518; 19 Am. and Eng. Ency. Law, 273 (Note); Shortt on Prohibition, 459; Keough v. Grime, 53 N.E. 135; Havemeyer v. Superior Court, 84 Cal. 327. (3) As the record shows, the "preliminary steps" were taken in the inferior court by the defendants -- relators here. They filed motions to vacate the restraining order and other motions to dismiss the case. The court, after overruling the motions to vacate such order for the failure of the plaintiff to give bond, continued the hearing on the motions, against the objection of these relators, until May 15th, twenty days from that time. It was not necessary for the defendants in that suit to file a motion to dismiss or to plead to the jurisdiction of the court if it be true that the petition in that case conferred no jurisdiction on the court, but they did file the motions, and endeavored to get rulings thereon. (4) The extravagant allegations in both the original and the amended petitions in the case of State ex rel. Jones and the strained application which is attempted to be made of the constitutional and statutory provisions of this State, characterize the proceeding as one by which it is hoped to accomplish by indirection something which could not be done directly; that is, to defeat the final decree of the United States court. It will be claimed that the purpose of the suit in St. Louis is to prevent an alleged combination and agreement for discrimination between passengers and to prevent the exaction of unreasonable fares; but that that is not the real purpose of the suit is made manifest both by the prayer of the petition and the terms of the restraining order. The plaintiff in that case was not content to pray for an injunction restraining the railroad companies named from carrying out the alleged agreement and combination to discriminate, but after so praying, shrewdly, in the end, seeks to prevent the railroad companies from charging more than two cents a mile, which is the very subject-matter of the suits in the United States Court. (5) The construction of the Anti-Trust Law by this court, thus declaring that it is limited in its scope and operation to persons and corporations dealing in commodities, precludes the possibility of its applying to the transportation of passengers or to passenger rates, and, therefore, it cannot be construed as a law declaring unlawful any agreements in regard to the passenger business of railroads. State ex inf. v. Standard Oil Co., 218 Mo. 1. (6) It is also claimed that the railroad companies were violating section 23 of article 12 of the Constitution, and that they had entered into an agreement for a discrimination which is condemned by that section and is therefore unlawful. But the alleged discrimination through the use of tickets to be sold at different rates per mile under different circumstances, is clearly not comprehended by section 23, article 12, of the Constitution. That was to prevent a wrong, which it was claimed was formerly practiced against certain patrons of railroads by giving advantages to transportation companies over individuals. (7) The petition also relies upon section 1128, R. S. 1899, and that has no application to the subject-matter of the suit instituted by the circuit attorney. Reference to the language of the statutes is sufficient to show that as a regulation of the business of transportation on railways it relates to freight only. (8) The circuit attorney of the city of St. Louis was not authorized to institute the suit in the St. Louis Circuit Court and is not now authorized to stand in that case in the attitude of plaintiff or relator therein. Sec. 540, R. S. 1899; State ex rel. v. Muench, 217 Mo. 124; Cope v. Blair, 105 Mo. 93; sec. 4943, R. S. 1899; State ex rel. v. McSpaden, 137 Mo. 628; State ex rel. v. Vandalia, 119 Mo.App. 406; Ex parte Young, 209 U.S. 152; Reagan v. Loan & Trust Co., 154 U.S. 362; Smyth v. Ames, 169 U.S. 466; Railroad v. Hickman, 183 U.S. 53; Prout v. Starr, 188 U.S. 537; State Bank ex parte, 15 Ark. 267; State ex rel. v. Green, 67 N.W. 162. (9) When the respondent as judge insists upon retaining jurisdiction and contends, as he does in his pleadings in this court, that the St. Louis Circuit Court "had and has jurisdiction," and in effect says that he intends to exercise that jurisdiction, he is acting in abuse and in excess of the proper jurisdiction of that court. (10) It is claimed by respondent that the parties to the suit are not the same. We submit, however, that with the principle of the cases previously referred to, they are the same, -- although it is not material that they should be identically the same. The cases of Reagan v. Trust Co., 154 U.S. 362; Railroad v. Railroad Commissioners of Mo., 183 U.S. 53; Prout v. Starr, 188 U.S., and Ex parte Young, 209 U.S. 152, have been previously cited in this brief to the point that the State is not the real party. In the controversy over what rates a carrier may charge, no matter in what form the question comes up, the carrier is the party on one side, and the shippers and passengers are the parties on the other side. 1 Spelling, sec. 7; Griffith v. Waterworks Co., 40 So. 1011; State v. Julow, 129 Mo. 163; State ex rel. v. Associated Press, 159 Mo. 455; State v. Loomis, 115 Mo. 307; Allgeyer v. Louisiana, 165 U.S. 589; Peck v. Jenness, 7 How. 625; Taylor v. Royal Saxon, 1 Wall. Jr. 311; French v. Hay, 22 Wall. 250; Kern v. Huidekoper, 103 U.S. 494; Sharon v. Hill, 26 F. 337; Railroad v. College, 208 U.S. 609; Lang v. Railroad, 160 F. 355; Sullivan v. Algrem, 160 F. 366; Prout v. Starr, 188 U.S. 537.

John Kennish and Jeptha D. Howe for respondent.

(1) The petition in the cause pending before the...