State v. Louisville & Nashville R. Co.

• Decision Date: 17 March 1913
• Citation: 61 So. 425,104 Miss. 413
• Parties: STATE v. LOUISVILLE & NASHVILLE R. CO
• Court: Mississippi Supreme Court

61 So. 425

104 Miss. 413

STATE v. LOUISVILLE & NASHVILLE R. CO

Supreme Court of Mississippi

March 17, 1913

March 1913

APPEAL from the chancery court of Harrison county. HON. T. A. WOOD Chancellor.

Suit by the state, by its attorney-general against the Louisville &amp Nashville Railroad Company, to enjoin it from engaging further in intrastate commerce within the state, because of its having removed a cause to the United States Circuit Court in violation of Laws 1908, chapter 122. From a judgment for defendant, the state appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Anderson & Long and Clayton, Mitchell & Clayton, for appellant.

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

No brief of counsel on either side found in the record.

OPINION

SMITH, C. J.

All of the matters presented to us for review by this record were, either expressly or by necessary implication, decided adversely to appellee on the former appeal. 97 Miss. 35, 51 So. 918, 53 So. 454, Ann. Cas. 1912C 1150. It may be that appellee's right under the act of 1867 were not presented to the court for decision by the record on the former appeal; but, be that as it may, this statute was called to the attention of the court in the briefs of counsel, and was held not to constitute such a contract as would be violated by the granting of the relief prayed for in the bill. Whether this was dicta or not, the rule announced is correct, and meets with our approval.

Reversed and remanded.

ON SUGGESTION OF ERROR.

Counsel for appellee suggest that in deciding this case we have overlooked two reasons why the judgment of the court below should be affirmed: First, that "there was no violation of the anti-removal statute (chapter 122, Laws of 1908), as interpreted by the opinion, because the suit removed was one arising under the Constitution and laws of the United States, and would have been removable by a domestic corporation;" and, second, "the effect of the decision of the Supreme Court of the United States, in affirming the decree of the United States Circuit Court perpetually enjoining enforcement of the act of 1908, because violative of the federal Constitution."

In this counsel are in error; for both of these propositions were given by us due consideration, and found to be wholly without merit. It is clear, from the argument of counsel in support of their first proposition, that they do not contend that the suit removed was one arising under the Constitution and laws of the United States, but that one of the two grounds for removal alleged in the petition therefor was a defense arising out of such Constitution and laws, to which appellee was entitled to the benefit, to wit: That the order of the Railroad Commission sought to be enforced was an "unreasonable interference with interstate commerce;" the other ground being diversity of citizenship. This allegation in the petition was ineffectual...