Territory of New Mexico v. Benjamin Baker

• Citation: 49 L.Ed. 540,196 U.S. 432,25 S.Ct. 375
• Decision Date: 20 February 1905
• Docket Number: No. 419,419
• Parties: TERRITORY OF NEW MEXICO ex rel. Caledonian Coal Company, Appt. , v. BENJAMIN S. BAKER, Associate Justice of the Supreme Court of the Territory of New Mexico and Judge of Second Judicial District Court thereof, etc
• Court: United States Supreme Court

196 U.S. 432

25 S.Ct. 375

49 L.Ed. 540

TERRITORY OF NEW MEXICO ex rel. Caledonian Coal Company, Appt.,

v BENJAMIN S. BAKER, Associate Justice of the Supreme Court of the Territory of New Mexico and Judge of Second Judicial District Court thereof, etc.

No. 419.

Argued January 27, 1905.

Decided February 20, 1905.

This appeal brings up for review a final judgment of the supreme court of the territory of New Mexico denying an application to that court by the Caledonian Coal Company for a writ of mandamus to compel Benjamin S. Baker, judge of the district court of the second judicial district of that territory, to take cognizance of a certain action brought in hat court against the Santa F e Pacific Railroad Company and others.

The petition for mandamus makes the following case:

On the 17th day of February, 1904, the Caledonian Coal Company, organized under the laws of New Mexico, commenced an action in the district court of the second judicial district of that territory against the Santa F e Pacific Railroad Company, the Atchison, Topeka, & Santa F e Railroad Company, the Colorado Fuel & Iron Company, and the American Fuel Company, to recover damages for alleged violations of the Interstate Commerce Act of 1887 and the anti-trust act of 1890.

By the 9th section of the above act of 1887 it is provided that 'any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. . . .' 24 Stat. at L. 379, chap. 104 U. S. Comp. Stat. 1901, p. 3159. And by § 7 of the above act of 1890 it was provided that 'any person who shall be injured in his business or property by any other person or corporation, by reason of anything forbidden or declared to be unlawful by this act, may sue therfor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.' 26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3202.

A summons was issued against the Santa F e Pacific Railroad Company, and was returned by the marshal of the territory, the return stating that it was served at the above district on the 13th day of May, 1904, by delivering a true copy thereof, with a copy of the complaint thereto attached, to E. P. Ripley, president of the defendant corporation.

The Santa F e Railroad Company is a corporation organized and existing under the act of Congress of March 3d, 1897, defining the rights of purchasers under mortgages authorized by an act of Congress approved April 20th, 1871 [17 Stat. at L. 19, chap. 33], concerning the Atlantic & Pacific Railroad Company. 29 Stat. at L. 622, chap. 374.

When the grievances set out in the petition were committed, the Santa F e Pacific Railroad Company was the owner of a line of railroad within the second judicial district of New Mexico and elsewhere within that territory, but which line, at the commencement of this action, had been sold and transferred to, and was being operated by, the Atchison, Topeka, & Santa F e Railroad Company under a conveyance authorized by an act of Congress of June 27th, 1902 (32 Stat. at L. 405, chap. 1159); was the owner of several hundred thousand acres of land within that district; and, at the commencement of the action for damages, was prosecuting in one of the counties of the territory, within the same district, suits involving the company's title and possession of parts of those lands.

All of those lands, with the rights, privileges, and franchises appertaining thereto, were acquired by the Santa F e Pacific Railroad Company as the successor of the Atlantic & Pacific Railroad Company, to which last-named company they were granted by the act of Congress of July 27th, 1866. 14 Stat. at L. 292, chap. 278.

The petition for mandamus alleged that, by reason of the above facts, the Santa F e Pacific Railroad Company was an 'inhabitant' of the second judicial district of New Mexico, and, by reason of the presence of Ripley, its president, in that territory and within that district, and the service of summons in the above action upon him as such president, the company was 'found' in the district within the meaning of the acts of Congress.

Nevertheless, the defendant Baker, associate justice of the supreme court of the territory and judge of the district court of the second judicial district, quashed the return of the above summons, and refused to assume jurisdiction of the action, so far as the Santa F e Pacific Railroad Company was concerned, or to require that company to answer the declaration or complaint filed by petitioner.

The defendant Baker made a return to a rule issued against him to show cause. From that return it appears that the Santa F e Pacific Railroad Company specially appeared in the action for the purpose of moving, and did move, to quash the service of process, upon grounds set forth in an affidavit of its president. In that affidavit Ripley stated that, when served with summons, he was only a passenger on a railroad train passing through the territory; that the company had its office in the city of New York, while its land commissioner had an office at Topeka, Kansas, and its president an office at Chicago, Illinois; that the company had no property in the territory of New Mexico, except lands acquired by it under a foreclosure of a mortgage of the Atlantic & Pacific Railroad Company, and which lands were undisposed of; that it has had no office or place of business in the territory since the sale of its road. This affidavit was used on the hearing of the motion to quash, and the facts stated in it were not contradicted.

The contention of the company, therefore, was that the service in question was insufficient to bring the company, personally, before the court.

The return of the judge also stated that the actions in ejectment brought by the railroad company against trespasses upon its property were instituted prior to the sale of its railroad property and franchises to the Atchison, Topeka, & Santa F e Railroad Company; and that the refusal of the judge to assume jurisdiction in the case referred to was upon the ground that the service upon Ripley as president of the company was not, in his opinion, sufficient to subject it personally sonally to the jurisdiction of the court.

The relief sought was an alternative writ of mandamus, directing Judge Baker to assume jurisdiction of the cause, so far as the Santa F e Railroad Company was concerned, and to require that company to plead, answer, or demur.

The supreme court of the territory, after hearing the case, upon the pleadings, return, and the proofs, denied the petition for mandamus, and dismissed the application. From that order the present appeal was prosecuted.

Mr.

[Argument of Counsel from pages 436-437 intentionally omitted] Messrs.Robert Dunlap and E. D. Kenna for appellee.

[Argument of Counsel from pages 437-439 intentionally omitted] Mr. Justice Harlan delivered the opinion of the court:

At the present term the appellant suggested that Judge Baker had been succeeded in office by Judge Ira A. Abbott. And it moved that such order be made in the premises as would be conformable to the rules and practice of this court. Judge Abbott consents that the action may be revived against him as the successor of Judge Baker, and proceed to a hearing, without further summons or notice, upon the record as now presented to the court.

The first question to be considered is whether it is competent for this court, Judge Baker having ceased to be judge, to substitute the name of his successor, as the appellee.

In United States v. Boutwell, 17 Wall. 604, 607, 21 L. ed. 721, 722, which was a mandamus against Mr. Boutwell as Secretary of the Treasury, it appeared that after the case was brought to this court the defendant resigned his office. Thereupon a motion was made to substitute the name of his successor, Mr. Richardson. It did not appear that any previous application was made to the latter for leave to substitute his name, and he opposed the motion, which was denied.

Mr. Justice Strong delivered the opinion of the court, saying: 'The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards, and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he, only, can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is therefore, in substance, a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence, it is an imperative rule that, previous to making application for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the relator or prosecutor up...