State ex rel. Natl. Rys. of Mexico v. Rutledge

• Citation: 56 S.W.2d 28
• Decision Date: 31 December 1932
• Docket Number: No. 30265.,30265.
• Parties: STATE EX REL. FERROCARRILES NACIONALES DE MEXICO, <I>alias</I> NATIONAL RAILWAYS OF MEXICO, <I>alias</I> NATIONAL RAILROAD COMPANY OF MEXICO, a Corporation, Relator, v. CHARLES W. RUTLEDGE, Judge of the Circuit Court of the City of St. Louis, and MADISON INVESTING COMPANY, INC.
• Court: United States State Supreme Court of Missouri

56 S.W.2d 28

STATE EX REL. FERROCARRILES NACIONALES DE MEXICO, alias NATIONAL RAILWAYS OF MEXICO, alias NATIONAL RAILROAD COMPANY OF MEXICO, a Corporation, Relator, v. CHARLES W. RUTLEDGE, Judge of the Circuit Court of the City of St. Louis, and MADISON INVESTING COMPANY, INC.

No. 30265.

Supreme Court of Missouri, Division 1.

December 31, 1932.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE ON CONDITION.

George E. Mix for relator.

(1) In order to facilitate matters petitioner cites first Section 8, Article I of the Constitution of the United States, more particularly the first three paragraphs of said section 8, which are as follows: "Sec. 8. Powers of Congress. — The Congress shall have power: To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (2) We submit the following cases in support of our position: Mich. Cent. Railroad Co. v. Mix, 278 U.S. 492. In the above case it was held that the courts of Missouri had no jurisdiction over petitioner, it never having been admitted to do business in the State of Missouri, never having consented to be sued in Missouri and transacting no business, as contemplated by the Federal Constitution, except the maintaining of offices for the solicitation of freight to be routed over its lines outside of the State of Missouri. To hold otherwise would be violative of Sec. 1, Article XIV of the Amendments to the Federal Constitution, and particularly that part known as the "Due-Process Clause," which provides, "nor shall any state deprive any person of life, liberty or property without due process of law." Green v. C.B. & Q. Ry. Co., 205 U.S. 532; Griffin v. Sea Board Air Line Ry. Co., 38 Fed. (2d) 98. (3) Also, while the extent to which a corporation must do business in a state to justify the service of process upon its representative is not clearly defined under all the authorities to which attention has been called, it must be some substantial part of its main business. Nothing short of this will justify such service. Cancelmo v. Seaboard Air Line Ry. Co., 12 Fed. (2d) 166; People's Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79; Bethlehem Motors v. Flynt, 256 U.S. 421; Cody Motors v. Warren Co., 196 Fed. 254; Phila. & Reading Ry. Co. v. McKibben, 243 U.S. 264; Peterson v. C.R.I. & P. Ry. Co., 205 U.S. 364; Griffin v. Seaboard Air Line Ry. Co., 38 Fed. (2d) 98.

Grant & Grant for respondents.

(1) Congress has no power of regulation over relator's railroad, operated wholly within the Republic of Mexico, and the trial of the case in the Circuit Court could not be a violation of the "commerce clause." Sec. 8, Art. I, of the Constitution of the United States; Elliott on Railroads, sec. 812; L.N. & O.T. Railroad Co. v. Mississippi, 133 U.S. 587; International Harvester Co. v. Kentucky, 234 U.S. 579. (a) There is no evidence that the relator will be required to bring any witness engaged in the operation of its railroad for the trial of the case and therefore the proof does not come within the rule laid down in Michigan Central Railroad Co. v. Mix, 278 U.S. 492; Atchison, T. & S.F. Railroad Co. v. Wells, 265 U.S. 101; Davis v. Farmers' Co-op. Equity Co., 262 U.S. 312; Bush v. L. & N. Railroad Co., 17 S.W. (2d) 337; State ex rel. v. Taylor, 266 U.S. 200; International Harvester Co. v. Kentucky, 234 U.S. 579. (2) The trial of the case sought to be prohibited will not be a violation of the "due process of law" clauses of the amendments to the Federal Constitution, because: (a) The return of the sheriff is sufficient and is conclusive upon the parties to the case and the courts of this State. Davis v. Jacksonville Southeastern Line, 126 Mo. 69; State ex rel. Cement Co. v. Sale, 232 Mo. 166; Newcomb v. Railroad, 182 Mo. 687; Smoot v. Judd, 184 Mo. 508; Hallowell v. Page, 24 Mo. 590. (b) The circuit court has jurisdiction by reason of the writ of attachment. State ex rel. Railroad Co. v. Taylor, 266 U.S. 200; Davis v. Railroad Co., 217 U.S. 157; Atchison, T. & S.F. Ry. v. Wells, 265 U.S. 101; Rothschild v. Knight, 184 U.S. 334; King v. Cross, 175 U.S. 396; C.R.I. & P. Co. v. Sturm, 174 U.S. 710. (c) The relator, having submitted to the circuit court, by its motion to quash, the question of whether or not it was doing business in the State, is bound by the decision of the circuit court on that question. Hall v. Wilder Mfg. Co., 316 Mo. 812; Newcomb v. Railroad, 182 Mo. 687; Baisley v. Baisley, 113 Mo. 544; International Harvester Co. v. Kentucky, 234 U.S. 579. (d) The evidence introduced at the hearing shows that the relator was doing business within the State at the time of service. Davis v. Jacksonville Southeastern Line, 126 Mo. 69; St. L.S.W. Railroad Co. v. Alexander, 227 U.S. 218; International Harvester Co. v. Kentucky, 234 U.S. 579; International Text Book Co. v. Pigg, 217 U.S. 91; Block v. Atchison, T. & S.F. Railroad Co., 21 Fed. 529; Walsh v. Atlantic Coast Line Railroad Co., 256 Fed. 47; Green v. C.B. & Q. Railroad Co., 205 U.S. 530; Denver & R.G. Railroad Co. v. Roller, 100 Fed. 738; Tuchband v. C. & A. Railroad Co., 115 N.Y. 437.

FERGUSON, C.

This is an original proceeding in this court whereby upon petition of the relator, National Railways of Mexico, a preliminary rule in prohibition issued. Respondent, a Judge of the Circuit Court of the City of St. Louis, made return setting out cause why our preliminary rule should not be made absolute. Thereupon by stipulation and joint motion of the parties a special commissioner was appointed to take testimony on the issues made by the pleadings. The report and findings of the special commissioner having been filed the cause was submitted on briefs.

It is admitted by the pleadings that the relator, National Railways of Mexico, is a corporation organized and existing under the laws of the Republic of Mexico with its principal office in Mexico City, Republic of Mexico; that at the time of the institution of the action against it, by the Madison Investing Company, in the Circuit Court of the City of St. Louis, out of which this proceeding arises, the National Railways of Mexico maintained an office in the city of St. Louis, with George B. Aleman in charge thereof; and that the Madison Investing Company is a corporation organized under the laws of the State of New York. In the course of this opinion we shall refer to the national Railways of Mexico as the Railways Company and the Madison Investing Company as the Investing Company.

On January 11, 1930, the Investing Company instituted an action, by attachment, against the Railways Company in the Circuit Court of the City of St. Louis. The petition is in 163 counts based upon 163 separate negotiable, promissory coupon notes. Judgment against the Railways Company is sought in the aggregate principal sum of $2,986 with interest thereon. Except as to dates and amounts the several counts are identical and it will suffice to disclose the nature of the action to here set out only the first count of the petition, as follows:

"For its first cause of action plaintiff states that on or about the 1st day of October, A.D. 1907, for value received, defendant executed its negotiable promissory coupon note, herewith filed, which was attached to a bond not yet due, and whereby defendant under its name Ferrocarriles Nacionales de Mexico, promised to pay to bearer in the City of New York, U.S.A., the sum of $22.50 in gold coin of the United States of America on the 1st day of July, 1914; that before maturity thereof plaintiff in due course became the owner and holder thereof; that thereafter, on the 1st day of July, 1914, plaintiff made demand in the City of New York upon defendant for the payment thereof, but that defendant failed and refused to pay the same, and that said note is still unpaid; that plaintiff is still the holder and owner of said note.

"Wherefore, plaintiff prays judgment against defendant in the sum of $22.50, together with interest at 6 per cent from the 1st day of July, 1914, together with costs."

An attachment bond in the sum of $6,000 was filed and approved and a writ of attachment, with summons, issued. Under the writ of attachment the First National Bank of St. Louis, the Missouri Pacific Railroad Company and the Southern Pacific Company were summoned as garnishees. The First National Bank filed an answer to the interrogatories stating that it was indebted to the Railways Company in the sum of $1,771.31 and was so indebted on the date of the service of garnishment. The Missouri Pacific Railroad Company denied it was indebted to the Railways Company in any amount and the Southern Pacific Company answering declared itself to be a foreign corporation and not subject to garnishment in this State. The summons was served, as shown by the return of the Sheriff of the City of St. Louis, as follows:

"Served this writ in the City of St. Louis, Missouri, on the within-named defendant, the Ferrocarriles Nacionales De Mexico, alias National Railways of Mexico, alias National Railroad Company of Mexico, a corporation (a Corporation), this 11th day of January, 1930, by delivering a copy of the writ and petition as furnished by the Clerk to Geo. B. Aleman, Gen'l Agent of the said defendant Corporation, he being in said defendant's usual business office and in charge thereof. The President or other Chief Officer of said Defendant could not be found in the City of St. Louis at the time of service."

The Railways Company then appearing specially in the Circuit Court of the City of St. Louis, and limiting its appearance to the purposes of the motion, filed a motion "to quash service of summons," which was overruled. The Railways Company thereupon applied to this...