State v. Johnston

• Decision Date: 25 April 1911
• Citation: 137 S.W. 595,234 Mo. 338
• Parties: STATE ex rel. MISSOURI & N. A. R. CO. v. JOHNSTON, Judge, et al.
• Court: Missouri Supreme Court

137 S.W. 595

234 Mo. 338

STATE ex rel. MISSOURI & N. A. R. CO. v. JOHNSTON, Judge, et al.

Supreme Court of Missouri.

April 25, 1911.

1. CORPORATIONS (§ 651)—DUE PROCESS OF LAW — REGULATION OF FOREIGN CORPORATIONS.

Laws 1907, p. 174, authorizing the revocation of the license of a foreign railroad corporation to transact business in the state on its removing a suit to the federal court without the consent of the adverse party, is unconstitutional.

2. PROHIBITION (§ 10)—WANT OF JURISDICTION.

A state court, in passing on the sufficiency of a petition and bond of a foreign railroad corporation for the removal of an action against it to the federal court, merely passes on the question whether the petition and bond are sufficient under the federal statutes, and it has nothing to do with Laws 1907, p. 174, authorizing the revocation of the license of a foreign railroad corporation to transact business in the state on it removing a suit to the federal court, and its decision is within its jurisdiction, and, whether right or wrong, it cannot be attacked by prohibition.

3. REMOVAL OF CAUSES (§ 90)—PETITION— BOND—JURISDICTION OF STATE COURT.

Where the petition and bond for the removal of a cause from the state court to the federal court are sufficient under the federal statutes, the cause is removed without any order of the state court, directing removal, though the practice of making an order of removal is sustainable to keep the record of the court clear.

4. PROHIBITION (§ 9)—SCOPE OF REMEDY.

Where plaintiff brought an action in a state court against a foreign railroad corporation, and it filed a petition and bond for the removal of the case to the federal court, prohibition did not lie on the application of the corporation to prohibit plaintiff from taking any steps in the suit, except to keep the same pending in the state court; plaintiff not being concerned with the question of the validity of Laws 1907, p. 174, authorizing the revocation of the license of a foreign railroad corporation to transact business in the state on it removing a suit to the federal court.

5. PROHIBITION (§ 6)—MANDAMUS (§ 64)— OTHER REMEDY.

Mandamus, and not prohibition, lies to compel the Secretary of State to do what he ought to do.

6. PROHIBITION (§ 6)—INJUNCTION (§ 75)— OTHER REMEDY.

The Secretary of State, attempting to do what he ought not to do, is amenable to injunction, but not prohibition, unless he assumes to exercise a judicial function.

7. PROHIBITION (§ 6)—CONTROLLING ACTS OF SECRETARY OF STATE.

The Secretary of State is amenable to prohibition only, if at all, when he assumes to exercise a judicial function.

8. CONSTITUTIONAL LAW (§ 79)—VALIDITY OF STATUTES—RIGHT TO QUESTION.

A ministerial officer may not pronounce an act of the Legislature unconstitutional and so disobey it; but the power to declare a statute invalid belongs exclusively to the judiciary.

9. CONSTITUTIONAL LAW (§ 48)—STATUTES— VALIDITY.

A statute will not be declared unconstitutional, unless its invalidity appears beyond a reasonable doubt.

10. PROHIBITION (§ 6)—CONTROLLING MINISTERIAL OFFICER.

A ministerial officer who obeys a statute does not thereby judicially determine its validity, and prohibition does not lie to prohibit him from obeying an invalid statute.

11. PROHIBITION (§ 19)—PARTIES.

Prohibition by a foreign railroad corporation, made a defendant in a state court, brought against the court, plaintiff in the action, and the Secretary of State to prohibit the Secretary of State from revoking the license of the corporation to transact business in the state, for removing the action to the federal court, and the judge and plaintiff from taking any steps in the action, must be denied because of misjoinder of parties.

In Banc. Prohibition by the State, on the relation of the Missouri & North Arkansas Railroad Company, against F. C. Johnston, Circuit Judge, and others. Writ denied.

O. L. Cravens, for relator. Geo. Hubbert, for respondents.

VALLIANT, C. J.

Relator prays a writ of prohibition to go against the judge of the circuit court of Newton county, the Secretary of State, and Scott Wilson.

The case stated in the petition is substantially as follows: Relator is an Arkansas corporation owning and operating a railroad in this state in connection with its railroad in Arkansas, and is engaged in both interstate and intrastate railroad traffic; it had, prior to March 13, 1907, complied with the laws of this state prescribing the terms and conditions on which a foreign railroad corporation could be admitted to do a railroad business in this state, and had received from the Secretary of State a certificate of authority to so transact its business, and had been so engaged for several years prior to the date mentioned above, and was so engaged when the matters complained of occurred. The General Assembly, by an act approved March 13, 1907 (Laws 1907, pp. 174, 175), declared that if a railroad company, chartered under the laws of another state and admitted to do business in this state, should, without the consent of the other party, in writing, to any suit or proceeding brought by or against it in any court of this state, remove the suit or proceeding to a federal court, or should institute a suit or proceeding against a citizen of this state in a federal court, the license or certificate of authority of the railroad company to carry freight or passengers from one point in this state to another point in this state should forthwith be revoked by the Secretary of State, and that such right should cease, and the Secretary of state should publish such revocation in a newspaper of large and general circulation, and the corporation should not be authorized or permitted to do such business—that is, intrastate business—for a period of five years. In November, 1908, Scott Wilson, one of the respondents herein, a citizen of Missouri, brought suit against the railroad company in the circuit court of Newton county to recover the sum of $3,071. The railroad company in due time and due form filed its petition and bond for the removal of that suit to the federal court for that district, on the ground that it was a citizen of Arkansas and the plaintiff therein was a citizen of Missouri, and that he had refused to give his consent in writing to such removal; that it is the intention of the Secretary of State as soon as the orders of removal are made in the circuit court of Newton county, to proceed to revoke relator's license and make publication of the revocation, as the act of March 13, 1907, requires him to do, and that the judge of the Newton circuit court, and the plaintiff therein, Wilson, threaten and are about to take steps in that suit to prosecute and determine the same. The petition avers that that act is unconstitutional, being in violation of certain provisions of the federal Constitution and also of the state Constitution, specified in the petition.

The prayer of the petition is that the Secretary of State be prohibited from revoking relator's license or certificate of authority above mentioned, and from attempting to enforce the act of March 13, 1907, and that the judge of the circuit court of Newton county and Wilson, the plaintiff in the suit mentioned, be prohibited from taking any steps in that suit, "except to keep the same pending therein in its present status."

The judge for answer to the petition, or return to the rule to show cause, says that he has taken no action in the suit mentioned, and will not do so until the further order of this court, nor suffer Wilson to do so. The Secretary of State files a demurrer to the petition, the main points of which are that there is an improper joinder of complaints or causes of action, the matter complained of against him having nothing to do with that complained of against the judge and Wilson, and that the writ of prohibition does not lie against a ministerial officer to prohibit him performing a purely ministerial act. He also files a motion to quash the order, or rule to show cause, on the grounds stated in his demurrer, and on the additional ground that the act of the Legislature complained of does not purport to authorize him to revoke relator's license until the circuit court makes some order which in effect removes the suit in question to the federal court, whereas the judge of the court is prohibited making any such order, and is required to hold the cause in its present status until the further order of this court. Scott Wilson files a demurrer and also a motion to quash, in which he says, in substance, that there is no cause of action stated, either against the judge or himself, that the relator's petition for removal and bond are sufficient to authorize a removal of the suit to the federal court, and it ought to be allowed to go there and be determined, and not held up in the circuit court of Newton county under the order of this court to take no action at all in regard to it.

I.

Since this proceeding has been pending in this court, the main question in the case has been decided by the Supreme Court of the United States. In the case of Herndon v. Chicago, R. I. & P. R. R. Co., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970, it was decided that the act of the General Assembly, approved March 13, 1907, above mentioned, was in conflict with the Constitution of the United States, was void and of no effect. In that decision we entirely concur. The danger therefore, which relator apprehended when it filed its petition in this proceeding no longer threatens. The act having been declared unconstitutional, it remains now for this court to decide whether, at the time of filing the petition herein, the relator, under the showing made in its petition, was entitled to a writ of prohibition. Unquestionably, if the relator's rights were threatened under the pretext of an unconstitutional act, it was entitled to judicial protection in some form; but the question is, Was it entitled to a...