State v. Louisville & N.R. Co.

• Decision Date: 11 April 1910
• Docket Number: 13646
• Citation: 97 Miss. 35,51 So. 918,53 So. 454
• Parties: STATE OF MISSISSIPPI EX REL. ETC., v. LOUISVILLE & NASHVILLE RAILROAD COMPANY
• Court: Mississippi Supreme Court

51 So. 918

53 So. 454, 97 Miss. 35

STATE OF MISSISSIPPI EX REL. ETC., v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

No. 13646

Supreme Court of Mississippi

April 11, 1910

FROM the chancery court of Hancock county, HON. THADDEUS A. WOOD Chancellor.

The state, on the relation of R. V. Fletcher, attorney-general appellant, was complainant in the court below; the railroad company, appellee, was defendant there. From a decree sustaining defendant's demurrer to the bill of complaint and dismissing the suit, the complainant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed. Suggestion of error overruled.

Anderson & Long and J. B. Stirling, attorney-general, for appellant.

Gregory L. Smith and Green & Green, for appellee.

[Counsel on both sides argued the case fully and elaborately in their briefs, but the reporter has been unable to procure the briefs on either side, hence no synopses of them are given.]

Argued orally by W. D. Anderson, for appellant, and by Gregory L Smith, and Marcellus Green, for appellee.

ALEXANDER Special Judge. WHITFIELD, C. J., dissents.

OPINION

ALEXANDER, Special Judge, ^[*]

The state of Mississippi, by the attorney-general, R. V. Fletcher, filed the bill herein against the Louisville & Nashville Railroad Company, a foreign corporation, to enjoin it from engaging further in intrastate commerce in this state because of its action in removing a cause to the United States circuit court in violation of chapter 122 of the Laws of 1908. This statute (Laws 1908, p. 131) is as follows:

"An act prescribing the terms and conditions on which foreign public service corporations shall engage in business in this state, and fixing penalties for violation of same.

"Section 1. Be it enacted by the legislature of the state of Mississippi, that any foreign railroad, sleeping car, electric railway, telegraph or telephone corporation, or other public service corporation whatsoever, now engaged in business in this state, or which may come into the state hereafter, and engage in business here, which shall, when sued in any court of this state, remove such cause to a federal court of this state, or which shall institute any suit in a federal court of this state, which it could not maintain if it were not a domestic company incorporated and organized under the laws of this state, shall:

"(a) Forfeit its right to, and be prohibited from engaging in intrastate commerce within this state;

"(b) Forfeit its right of eminent domain, and be prohibited from further exercising the same in this state.

"And any such corporation so removing a cause to the federal court, or instituting a suit therein, and which shall thereafter continue to engage in intrastate commerce within this state, shall forfeit not less than two hundred dollars nor more than five thousand dollars for every such offense, and each day such corporation shall continue to so engage in such commerce shall be a separate offense; the penalty in such case to be recovered by an action in the name of the state, at the relation of the attorney general, or any district attorney in whose district such offense may occur, and when so recovered shall be paid into the state treasury.

"Section 2. That this act take effect and be in force from and after its passage."

The cause comes to this court on an appeal by the state from a decree sustaining a demurrer to the bill and dismissing the suit. The facts as set out in the bill are that the Louisville & Nashville Railroad Company is a corporation organized under the laws of Kentucky, owning and operating a line of railway through the states of Kentucky, Tennessee, Alabama, and Mississippi; that it is a common carrier engaged in the business of transporting freight and passengers for hire through and in the state of Mississippi, and has in this state a number of stations where trains are regularly stopped for receiving and discharging freight and passengers; that its business is in part interstate commerce; that in August, 1908, the state of Mississippi and the Mississippi railroad commission filed a suit in the chancery court of Hancock county against the said Louisville & Nashville Railroad Company to enjoin it from disobeying an order of the commission relative to the stopping of trains at Bay St. Louis, in said county; that the said defendant company appeared in said suit, and by appropriate proceedings removed the same to the United States circuit court for the southern division of the southern district of Mississippi; that notwithstanding such removal defendant continues to engage in intrastate commerce in this state, and will as its business and its lines are extended exercise the right of eminent domain. The prayer of the bill is for a decree that the defendant has forfeited its right to do any intrastate business within this state, or exercise the right of eminent domain, and for a perpetual injunction against further engaging in such business and against exercising the right of eminent domain, and that the state recover of defendant penalties in such amount as the court shall adjudge not less than $ 200 nor more than $ 5,000 for each day that it has continued to engage in intrastate commerce in this state after such removal of the cause to the United States court. The railroad company demurred to the bill as a whole on the ground that the chancery court is without jurisdiction to adjudge the forfeiture or enforce penalties, and on the ground that there is no valid law forfeiting the right of the defendant to do intrastate business in the state because of having removed a cause to the United States circuit court. The chancery court sustained the demurrer, and dismissed the bill, but recited in the decree that the court was of the opinion that it had jurisdiction of the cause, but that in its view the statute in question is unconstitutional. From this decree the state appeals, and assigns for error the action of the court in sustaining the demurrer.

The preliminary question of jurisdiction presents little difficulty. We have no hesitation in holding that a sovereign state can resort to its court of equity to enjoin the continued prosecution of a business sought to be conducted within the state by a foreign corporation in alleged violation of the public policy of the state. Assuming that the continuance of such business of intrastate commerce is violative of such public policy as declared in the statute, it was not incumbent on the state to remain inactive and be content with the recovery of penalties after they had been incurred. "The restraining power of equity extends through the whole range of rights and duties which are recognized by the law, and would be applied to every case of an intended violation were it not for certain reasons of expediency and policy which control and limit its exercise." 3 Pomeroy, Eq. Jur. § 1338. These reasons of expediency confine the jurisdiction to cases in which the legal remedy is not full and adequate. Ib. The nature and scope of this jurisdiction when invoked by the executive authorities of the government was discussed at great length, and the precedents, both English and American, reviewed in the case of Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, in which the court, responding to the objection that the government had no property interest in the mails, the protection of which was one of the purposes of the bill for injunction filed by the United States, said: "Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligation which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court." The averments of the bill are not sufficient to warrant the intervention of equity to prevent the exercise of the right of eminent domain. The allegation that defendant will exercise such right when it becomes necessary in order to extend its lines of road and business falls short of showing any impending, threatened, or continuing wrong calling for the extraordinary writ of injunction.

We are thus brought to a consideration of the principal question viz.: Is the act of 1908 valid as applied to a foreign railroad corporation owning and operating a line of railroad in this state and engaged here in both interstate and intrastate commerce; or, to state the case as it is somewhat more narrowly presented by this record: Where a foreign railroad company has been permitted to enter this state and acquire its right of way and build and equip its railroad, and has for many years used the same in both domestic and interstate transportation, can the state forfeit its right to further engage in intrastate commerce because it exercises the right secured to it by the Constitution and laws of the United States of removing a suit from a court of the state to the circuit court of the United States? So far as we can ascertain, the precise question has not been before the supreme court of the United States--the tribunal whose decision, so far as it defines rights claimed under the federal Constitution, is binding on us. There are, however, several principles more or less influential in the solution of the question which have been authoritatively established by that court. That a corporation is not a citizen within the meaning of article 4, § 2, declaring that the citizens of each state shall be...