Western Union Telegraph Company v. State ex rel. Hammond Elevator Company

• Citation: 76 N.E. 100,165 Ind. 492
• Decision Date: 28 November 1905
• Docket Number: 20,387
• Parties: Western Union Telegraph Company v. State, ex rel. Hammond Elevator Company et al
• Court: Supreme Court of Indiana

76 N.E. 100

165 Ind. 492

Western Union Telegraph Company v. State, ex rel. Hammond Elevator Company et al

No. 20,387

Supreme Court of Indiana

November 28, 1905

From Laporte Superior Court; H. B. Tuthill, Judge.

Action by the State of Indiana, on the relation of the Hammond Elevator Company and another, against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Percy B. Eckhart and John B. Peterson, for appellant.

Crumpacker & Moran, J. J. Kern, J. A. Brown and L. C. Whitman, for appellee.

Montgomery J. Gillett, J., did not participate in this decision.

OPINION

Montgomery, J.

This is an action of mandamus brought by appellee in the Lake Superior Court to compel appellant, as a public-service corporation, to sell and deliver to the Hammond Elevator Company the continuous market quotations of the Chicago Board of Trade. An alternative writ of mandate was issued and served upon appellant; and, upon being then brought into court, appellant filed its petition and bond for a removal of the cause to the circuit court of the United States, on the ground of diverse citizenship of the parties. This application was denied, and an exception to the ruling saved. Appellant thereupon filed a plea to the jurisdiction of the court, alleging specially the proceedings in the application for a removal of the cause to the federal court. Upon appellee's motion this plea was stricken out and to this action appellant excepted. The venue of the cause was changed to the Porter Superior Court, and thence to the Laporte Superior Court. Appellant's demurrer to the amended complaint for want of facts and for a defect of parties was overruled, and a return or answer to the writ filed, consisting of six paragraphs. The first answer in general denial was subsequently withdrawn, and demurrers, for want of facts, to the affirmative answers were sustained, and exceptions to the rulings properly saved. Appellant declined to plead further, and judgment was thereupon entered against it in accordance with the prayer of the complaint.

It is averred in the assignment of errors that the court below erred: In denying appellant's application for a removal of the cause to the federal court, in striking out its plea to the jurisdiction of the state court, in overruling its demurrer to the amended complaint, and in sustaining appellee's demurrer to the second, third, fourth, fifth and sixth paragraphs of answer.

Appellee urges many technical objections to the record, and to appellant's brief, all of which, having been duly considered, and in the main found unsubstantial, we have disregarded.

The first question presented is one of jurisdiction. No objection was urged below, or is here, to the form or sufficiency of appellant's petition and bond for removal; therefore, if this cause is removable to the federal court, upon the timely presentation of such application the jurisdiction of the state court was at once terminated. Appellee contends that original proceedings in mandamus are not within the jurisdiction of circuit courts of the United States, and are not removable to such courts; and it is admitted by counsel that it was upon this ground that the application for removal was denied in this case.

The section of the federal statutes in relation to the jurisdiction of circuit courts of the United States confers upon them "original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity," where the matter in dispute exceeds, exclusive of interest and costs, $ 2,000, and in which there is a controversy between citizens of different states. The section providing for the removal of a cause from a state court to the United States Circuit Court employs the same language, except that the suit is to be one "of a civil nature, at law or in equity." 25 Stat. at Large, p. 433, §§ 1, 2, U.S. Comp. Stat. 1901, pp. 507-509.

It has been repeatedly held by the Supreme Court of the United States that an action for a writ of mandamus is not a suit of a civil nature at common law or in equity, within the meaning of the acts of congress creating and defining the jurisdiction of circuit courts of the United States; and that such courts have no jurisdiction of such an action unless it be in aid of a jurisdiction previously acquired. Mandamus was originated at a time when it was supposed that the king in person presided over the court of king's bench. It was a prerogative writ, issuing in the king's name from that court, and the proceedings did not partake of the nature of a suit between parties. The relief sought was granted and effected by means of the writ, but it had none of the elements of a summons or judicial writ requiring a party to appear and plead. The character of the proceeding and the nature of the writ have been materially changed by statute, and in most of the states of the Union a proceeding by mandamus is now considered a civil action. However, the Supreme Court of the United States and some of the federal circuit courts have passed upon the question under consideration, and held that an action of mandamus is not a suit of a civil nature at law or in equity, and not removable, under the provisions of the federal statutes, from a state court into a circuit court of the United States. Rosenbaum v. Bauer (1887), 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743; Mystic Milling Co. v. Chicago, etc., R. Co. (1904), 132 F. 289; Kelly v. Grand Circle, etc. (1904), 129 F. 830; State of Indiana v. Lake Erie, etc., R. Co. (1898), 85 F. 1. See, also, Black's Dillon, Removal of Causes, § 26; 18 Ency. Pl. and Pr., 171. This interpretation of the federal statutes is binding upon us, and in accordance therewith we hold that there was no error in denying appellant's application for a removal of this cause to the circuit court of the United States, or in striking out its plea to the jurisdiction of the state court.

The amended complaint contained the following facts: The relator Hammond Elevator Company is a corporation organized under the laws of the state of Delaware, and the relator Frank C. Williams is secretary of said company and appears herein, not in his personal capacity, but as such secretary. Said elevator company is organized, among other things, for the purpose of buying and selling grain and provisions, stocks and bonds, and other commodities and securities, and is now, and has been since January 1, 1903, engaged at Hammond, Indiana, in such business. Appellant Western Union Telegraph Company is a corporation, and was organized February 18, 1859, under the laws of the state of New York, for the purpose of doing a general telegraph business in, between and among the several states of the United States and elsewhere, and with, between and among all of the inhabitants thereof. It has power and authority, under its charter, and under the laws of said state, and under the laws of the State of Indiana and of the state of Illinois, to gather, buy, transmit and sell news and information to all persons and corporations who may desire the same, and to the public generally throughout all the states. It has been since its incorporation, and is now, doing, and will continue to do, that character of business in all of the states aforesaid, and with and for all of the inhabitants thereof and the public generally, for a stipulated compensation. It has been at all times, and is by its articles of incorporation and by the laws of New York, Illinois and Indiana, authorized to exercise the power of eminent domain in aid of its business, and is a quasi public corporation engaged in state and interstate business, public in its nature, and is now, and for forty years last past has been, operating a line of telegraph from the city of Chicago to and through the city of Hammond, and to a large number of other points throughout the world. It maintains, and has maintained during all of said time, a public office in said city of Hammond, where it receives and delivers messages and news generally to those who may desire and are willing to pay for the same. It does now transmit, and has during said time transmitted, over the wires of its said system, and through its said office at Hammond, and to other points, to all who desired the same, the continuous quotations of the Chicago Board of Trade, and, without inconvenience, or unusual or unnecessary expense, can furnish and deliver the same to the relator Hammond Elevator Company. Said board of trade is a corporation organized under special charter granted by the state of Illinois, February 18, 1859, with its principal place of business in the city of Chicago, and organized, among other things, for the purpose of maintaining a commercial exchange and acquiring and disseminating commercial and economic information, and securing to its members the privileges of cooperation, and generally for the carrying on of any business usually conducted by boards of trade or chambers of commerce. Said board since its organization has been, and is now, conducting and maintaining an exchange at the city of Chicago, upon which exchange are bought and sold, and contracted to be bought and sold, all kinds of grain and hog products. The prices at which said commodities are so bought and sold, or contracted to be bought and sold, are collected by said exchange and circulated in the manner hereinafter set forth, and, when so collected and circulated, are known as quotations, and when circulated at intervals of less than fifteen minutes are known as continuous quotations.

Said prices at which said commodities are so bought and sold, or contracted to be bought and sold, are noted by persons placed for that purpose on said exchange, and by them marked down,...