tuted by railroad commissioners under Mo. Rev. Stat. 1899, § 1150, to restrain a railroad company from violating the law and the order of the commissioners with respect to rates, although the state is contingently liable for the costs of the litigation, and might have some indirect and remote pecuniary interest by reason of the fact that forfeitures and penalties for disobedience of the orders of the court would go to a county school fund.

[No. 11.]

Section 1150 (§ 2653, Rev. Stat. 1889) reads as follows:

"Sec. 1150. Proceedings when Order of Commissioners is Disobeyed-Circuit Court -Enforce or Renew Order-Proceedings.*Where the complaint involves either a pri-[55] vate or a public question as aforesaid, and the commissioners have made a lawful order or requirement in relation thereto, and where such common carrier, or the proper officer, agent, or employee thereof, shall violate, refuse, or neglect to obey any such order or requirement, it shall be lawful for the

Argued and Submitted October 16, 1901. board of railroad commissioners, or any perDecided November 11, 1901.

ERROR to the Supreme Court of the

affirming a decree in a suit in which the state court had refused to order a removal to a Federal court. Reversed.

See same case below, 151 Mo. 644, 52 S. W. 351.

Statement by Mr. Justice Brewer: [54] *This case involves the question of removal from a state to a Federal court.

The state of Missouri has a body of statutes for the regulation of railroads. By one section a board of railroad commissioners is created. To this board is committed the duty of supervising the conduct and charges of railroads, of hearing and deciding complaints against them, and making such orders as the circumstances require. Section 1143, Rev. Stat. Mo. (1899), identical with 2646, Rev. Stat. Mo. (1889), contains this provision:

"Sec. 1143. Commissioners to See to Enforcement of Article-Investigate Complaints. It shall be the duty of the railroad commissioners of this state to see that the provisions of this article are enforced. When complaint is made in writing by any person having an interest in the matter about which complaint is made, that any rate or rates established by any common carrier are unreasonable, unjust, or extortionate, or that any of the provisions of this article have been or are being violated, it shall be the duty of said railroad commissioners to proceed at once to investigate such complaint and determine the truth of the same."

son or company interested in such order or requirement, to apply in a summary way, by petition, to any circuit court at any county

state into or

of railway of the said common carrier enters or runs, alleging such violation or disobedience, as the case may be; and the said court shall have power to hear and determine the matter on such short notice to the common carrier complained of as the court shall deem reasonable. And such notice may be served on such common carrier, its officers, agents, or servants, in such manner as the court may direct; and said court shall proceed to hear and determine the matter speedily in such manner as to do justice in the premises; and to this end said court shall have power, if it thinks fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as may seem needful to enable it to form a just judgment in the matter of such petition. On such hearing the report of said commissioners shall be prima facie evidence of the matter therein stated; and if it be made to appear to the court on such hearing, or on report of such persons appointed as aforesaid, that the lawful orders or requirements of such commissioners drawn in question have been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation of such order or requirement of said commissioners, and enjoin obedience to the same. If such court shall hold and decide that any order of said board of railroad commissioners involved in such proceeding was not a lawful order, said court shall, without any reference to the regularity or legality of the proceedings of said board or of the order thereof, proceed to make such order as the said board should have made, and to enforce said order by the process of said court, and to enforce and collect *the forfeitures and [56] penalties herein provided in all respects according to the provisions of this act. And in case of any disobedience of any such injunction or other proper process, mandatory or otherwis it shall be lawful for such "Sec. 1144. Forfeitures, How Recovered court to issue writs of attachment, or other and Disposed of. The forfeitures and pen- proper process of said court incident or apalties herein provided for shall go to the plicable to writs of injunction or other propcounty school fund of the county where sued er process, mandatory or otherwise, against for, and may be recovered in a civil action such common carrier; and if a corporation, in the name of the state of Missouri, at the against one or more of the directors, offirelation of the board of railroad commission-cers, or agents of the same, or against any ers to the use of said fund.” owner, lessee, trustee, receiver, or other per

The section also authorizes the commissioners to summon witnesses, to punish for failure or refusal to attend or testify, declares that any common carrier wilfully or knowingly obstructing or preventing the commissioners from making such investigations shall be deemed guilty of a misdemeanor and punished by a fine. Other sections provide for penalties and forfeitures. In § 1144, the same as § 2647, Rev. Stat. 1889, is

this clause:

and the order of the commissioners. The
company in due time filed a petition for re-
moval to the circuit court of the United
States, alleging that it was a corporation
created and existing under the laws of the
state of Kansas and a citizen of that state,
and that the plaintiffs were citizens of the
state of Missouri. No question was made
as to the sufficiency of the petition and bond
in respect to any formal matter. The state
court refused to order the removal, notwith-
standing which the railway company took a
transcript of the record and filed it in the
Federal court, where a motion to remand
was made and overruled. 97 Fed. 113. The
state court, after refusing to order the re-
moval, proceeded with the hearing of the
case, the railway company declining to take
any part therein. On such hearing a decree
was entered in accordance with the petition
of the railroad commissioners. This decree
was appealed to the supreme court of the[58]
state, and by that court on June 30, 1899,
affirmed. 151 Mo. 644, 52 S. W. 351.

Mr. George P. B. Jackson argued the cause and filed a brief for plaintiff in error: The circuit court of Cooper county was without jurisdiction to try and determine this case. Therefore the judgment of the supreme court of Missouri affirming the judgment of the circuit court should be reversed. When the petition and bond for removal were filed the state court had nothing to do except to make an order transferring the case to the Federal court. making of such order was not essential to the jurisdiction of the Federal court.

The

son failing to obey such writ of injunction or other process, mandatory or otherwise; and said court may make an order directing such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of $100 per day, for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such money shall be payable to the school fund of the county in which such proceeding is pending; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by final decree in personam in such court. When the subject in dispute shall be of the value of $100 or more, either party to such proceeding before such court may appeal to the proper appellate court in the state, in the same manner that appeals are taken from such courts in this state in other proceedings involving like sums of money; but such appeal shall not operate to stay or supersede the order of the court or the execution of any writ or process thereon, unless stay of proceedings be ordered by the court from which the appeal is taken, or by the appellate court to which the appeal is taken, upon the application of the appealing party. Whenever any such petition shall be filed by the commissioners as aforesaid it shall be the duty of the attorney general, when requested by said commissioners, to prosecute the same. All proceed- Shepherd v. Bradstreet Co. 65 Fed. 142. ings commenced upon such petition shall, When the proper application for removal (57]upon application of the *petitioner, be ad- is made, the jurisdiction of the state court vanced upon the docket and take precedence ceases, whether that court grants or refuses of any other case upon the docket except an order of removal. After that the further criminal cases. The costs of such proceed- proceedings in the state court are "coram ings may be, with the approval of the attor-non judice, and absolutely void." ney general and governor of the state, when such suit is brought by any private person, and when brought by said commissioners shall be ordered by the commissioners to be, paid, in the first instance, out of any money in the treasury not otherwise appropriated; and if upon final hearing the decision is against the said common carrier or other person against whom the proceeding is being prosecuted, such common carrier or person shall be liable for the costs, for which judgment may be rendered as in any other case.' Black's Dillon, Removal of Causes, § 193. Under the authority of these statutes, up- If under such circumstances judgment is on a hearing after complaint and notice, the rendered against him in the state court, and railroad commissioners found that the rail- on appeal the same is affirmed in the state way company was charging excessive and il supreme court, then this court will, on writ legal rates for travel over what is known as of error, reverse the judgment of the state the Boonville bridge across the Missouri riv-court, because there was no jurisdiction in er, and made and entered of record an order directing it to discontinue such charges. This order was dated July 22, 1895. The railway company not complying with the order, a suit was instituted on August 17, 1895, in the circuit court of Cooper county, Missouri, by such commissioners, setting forth the facts and praying process, mandatory or otherwise, to restrain the defendant from further continuing to violate the law

Virginia v. Rives, 100 U. S. 313, sub nom. Ex parte Virginia, 25 L. ed. 667; Stanley v. Chicago, R. I. & P. R. Co. 62 Mo. 508; Beery v. Chicago, R. I. & P. R. Co. 64 Mo. 533; Black's Dillon, Removal of Causes, § 192.

If the state court still assumes to exercise jurisdiction, the party seeking the removal may still continue in the state court and make defense, and does not thereby prejudice his right to insist on removal and on the jurisdiction of the Federal court.

that court to render any judgment.

Oakley v. Goodnow, 118 U. S. 43, 30 L. ed. 61, 6 Sup. Ct. Rep. 944; Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 30 L. ed. 1159, 7 Sup. Ct. Rep. 1262; Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264.

The state courts were without jurisdiction to pass upon the question of removability of the case, because it is conceded that it does

not appear upon the face of the papers that | 380, 7 Sup. Ct. Rep. 193; Knapp v. Troy the state has any interest; but that is to B. R. Co. 20 Wall. 117, 22 L. ed. 328; Gardbe ascertained, if it can be, by an investi-ner v. Brown, 21 Wall. 36, 22 L. ed. 527; gation, and by going beyond the nominal Dodge v. Tulleys, 144 U. S. 451, 36 L. ed. parties. The Federal court alone has power 501, 12 Sup. Ct. Rep. 728; Black's Dillon, to make that investigation of what exists Removal of Causes, §§ 91-94. outside the record.

Black's Dillon, Removal of Causes, §§ 191, 192; Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 30 L. ed. 1159, 7 Sup. Ct. Rep. 1262; Carson v. Hyatt, 118 U. S. 279, 30 L. ed. 167, 6 Sup. Ct. Rep. 1050; Kansas City, Ft. 8. & M. R. Co. v. Daughtry, 138 U. S. 298, 34 L. ed. 963, 11 Sup. Ct. Rep. 306.

The

There is no merit in the contention of defendants in error that this court is concluded by the construction of the statute of Missouri by the supreme court of that state in this case. The statute was not before the court for construction. There was no dispute as to the meaning of the statute. court did not assume to construe it, but only referred to it by way of argument, making certain deductions from its undisputed meaning. Not only was there no clear case of construction, but there was no such established construction as to assimilate it to the rule of stare decisis, which this court had

The state is not a party to this suit, and has no pecuniary interest in it. It has no more interest in this controversy than it has in having the law enforced in any case. The case was therefore removable to the Federal court,, and the state courts had no jurisdiction over the case after the filing of the peti-held necessary. tion and bond for removal.

Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Hickman v. Missouri, K. & T'. R. Co. 97 Fed. 113.

Carroll v. Carroll, 16 How. 275, 14 L. ed. 936. See also Olcott v. Fond du Lac County, 16 Wall. 678, 21 L. ed. 382; Venice v. Murdock, 92 U. S. 494, 23 L. ed. 583.

Especially are the above tests applied and insisted upon in cases involving the jurisdiction of Federal courts.

See Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Carroll Coun ty v. Smith, 111 U. S. 556, 28 L. ed. 517, 4 Sup. Ct. Rep. 539.

Regardless of the name in which the suit was commenced, regardless of who may be designated as plaintiff, the question that is to determine the jurisdiction of the Federal court is simply, Will the judgment or decree Messrs. Edward C. Crow and Samuel sought operate upon the pecuniary and mate- B. Jeffries submitted the cause for defendrial interests of the state of Missouri, or up-ants in error: on the interests of one or more of her citizens?

The state court committed no error in retaining cognizance of the case and proceeding to final judgment.

Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Pennoyer v. McCon- Hickman v. Missouri, K. & T. R. Co. 151 naughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Mo. 648, 52 S. W. 351; 25 Stat. at L. 434, Ct. Rep. 699; Reagan v. Farmers' Loan & T. chap. 866; Powers v. Chesapeake & O. R. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Mc-Rep. 264; Yulee v. Vose, 99 U. S. 539, 25 L. Whorter v. Pensacola & A. R. Co. 24 Fla. 417, 2 L. R. A. 504, 5 So. 129; Chicago & N. W. R. Co. v. Dey, 1 L. R. A. 744, 2 Inters. Com. Rep. 325, 35 Fed. 866; Chicago, St. P. M. & O. R. Co. v. Becker, 35 Fed. 883; Mercantile Trust Co. v. Texas & P. R. Co. 51 Fed. 529; Richmond & D. R. Co. v. Trammel. 53 Fed. 196.

The statute of Missouri under which this suit was commenced negatives the contention that the state is a party to the proceeding. Mo. Rev. Stat. 1889, § 2653; Hickman v. Missouri, K. & T. R. Co. 97 Fed. 113.

ed. 355; Removal Cases, 100 U. S. 474, sub nom. Meyer v. Delaware R. Constr. Co. 25 L. ed. 599.

The United States district court, as shown by the record, pleadings, and motion to remove, had no jurisdiction of the cause.

24 Stat. at L. 552, chap. 373; 25 Stat. at L. 433, chap. 866; Stone v. South Carolina, 117 U. S. 431, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Alabama v. Wolffe, 18 Fed. 836; Indiana use of Delaware County v. Alleghany Oil Co. 85 Fed. 870; State ex rel. Muncie v. Lake Erie & W. R. Co. 85 Fed. 1; Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161; Sundry African Slaves v. Madrazo, 1 Pet. 110, 7 L. ed. 73; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Hagood v. SouthThe jurisdiction of the Federal court, andern, 117 U. S. 52, 29 L. ed. 805, 6 Sup. Ct. consequently the right to remove a case, depends on the citizenship of administrators, executors, trustees, receivers, and others similarly situated.

The defendants in error were to be regard ed in the nature of trustees of an express trust, and could maintain the suit in their own names without joining or naming the persons for whose benefit they sued.

Mo. Rev. Stat. 1889, § 1991.

Rep. 608: Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; Maryland use of Markley v. Baldwin, 112 U. S. 490, 28 L. ed. 822, 5 Sup. Ct. Rep. 278; McNutt v. Bland, 2 How. 15, 11 L. ed. 161.

New Orleans v. Gaines, 138 U. S. 595, sub nom. New Orleans v. Whitney, 34 L. ed. When the record, together with the peti1102, 11 Sup. Ct. Rep. 428; Susquehanna &tion for removal, fails to present a removaW. Valley R. & Coal Co. v. Blatchford, 11ble cause, the state court will properly deny Wall. 172, 20 L. ed. 179; Continental L. The application, and proceed with the trial. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. Black's Dillon, Removal of Causes, § 191 ; 183 U. S. U. S., Book 46. 6 81

Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup.

Home Ins. Co. v. Curtis, 32 Mich. 402; Ar- | L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. mory v. Armory, 95 U. S. 186, 24 L. ed. Ct. Rep. 1047, is not in point. 428; Kanouse v. Martin, 14 How. 23, 14 L. ed. 310; Mahone v. Manchester & L. R. Corp. 111 Mass. 72, 15 Am. Rep. 9; National Union Bank v. Dodge, 42 N. J. L. 316; Cars-Ct. Rep. 699. well v. Schley, 59 Ga. 17; Dahlonega Co. v. Frank W. Hall Merchandise Co. 88 Ga. 339, 14 S. E. 473; Indianapolis, B. & W. R. Co. v. Risley, 50 Ind. 60; Blair v. West Point Mfg. Co. 7 Neb. 146.

Having once acquired jurisdiction, the state court should proceed until it is judicially informed that its power over the cause has been suspended.

Carswell v. Schley, 59 Ga. 17; Armory v. Armory, 95 U. S. 186, 24 L. ed. 428; Black's Dillon, Removal of Causes, § 191; Gregory v. Hartley, 113 U. S. 742, 28 L. ed. 1150, 5 Sup. Ct. Rep. 743; National Docks & N. J. Junction Connecting R. Co. v. Pennsylvania R. Co. 52 N. J. Eq. 58, 28 Atl. 71; Removal Cascs, 100 U. S. 457, sub nom. Meyer v. Delaware R. Constr. Co. 25 L. ed. 593.

A state is not a citizen within the meaning of the removal act of Congress.

Even though it is held that the same con. struction should be given the statute in re|lation to the removal of causes from a state court to the district court as has been placed upon the 11th Amendment to the Constitution of the United States, we submit that the state of Missouri has such a pecuniary interest in the result of this litigation as to constitute it a real and substantial party hereto.

Mo. Rev. Stat. 1899, §§ 1150, 1151, 1155. When it appears that the state court has construed its own Constitution and statutes applicable to the case, the Federal court is bound by the decision of the state court in regard to the meaning of the Constitution and laws of its own state, and its decision upon such a state of facts will be followed by the Federal courts. This is true in all cases where the writ of error is to a state court.

Turner v. Wilkes County, 173 U. S. 461, 43 L. ed. 768, 19 Sup. Ct. Rep. 464.

Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Ferguson It having been determined by the state v. Ross, 3 L. R. A. 322, 38 Fed. 161; Black's court that under the statutes of Missouri the Dillon, Removal of Causes, § 81; Postal state has a pecuniary interest in the subTeleg. Cable Co. v. United States, 155 U. S.ject-matter of the controversy, the Federal 432, sub nom. Postal Teleg. Cable Co. v. Alabama, 39 L. ed. 231, 15 Sup. Ct. Rep. 192; Indiana v. Tolleston Club, 53 Fed. 18; Minnesota v. Guaranty Trust & S. D. Co. 73 Fed. 914; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep.

260.

Courts will look behind the nominal parties, and examine the entire record to determine the real parties in interest. This is always true in passing upon the question of jurisdiction.

courts will adopt the same as conclusive, and not undertake to overturn it.

Gormley v. Clark, 134 U. S. 338, 33 L. ed. 909, 10 Sup. Ct. Rep. 554; Powell v. Brunswick County, 150 U. S. 442, 37 L. ed. 1137, 14 Sup. Ct. Rep. 166; Turner v. Wilkes County, 173 U. S. 461, 43 L. ed. 768, 19 Sup. Ct. Rep. 464; Lawler v. Walker, 14 How. 149, 14 L. ed. 364.

Under the removal act of Congress it is not necessary that the state should have & pecuniary interest in the result of the case Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. in order to constitute it a party to the pro161; Black's Dillon, Removal of Causes, 8ceeding and prevent a removal from the state court. A "governmental interest" is 86; Maryland use of Markley v. Baldwin, 112 U. S. 490, 28 L. ed. 822, 5 Sup. Ct. Rep. 278.

The state of Missouri is the real party plaintiff, the commissioners being the nominal parties. Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161; Hickman v. Missouri, K. & T. R. Co. 151 Mo. 648, 52 S. W. 351.

The state court is at liberty to determine for itself whether on the face of the record a removal has been effected.

Chesapeake & O. R. Co. v. White, 111 U. S. 134, 28 L. ed. 378, 4 Sup. Ct. Rep. 353; Baltimore & O. R. Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; New Orleans, M. & F. R. Co. v. Mississippi, 102 U. S. 135, 26 L. ed. 96; Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Rep. 799.

sufficient.

The state, in the exercise of its sovereign its people, which duties are solely governpower, has certain duties to perform toward mental. In the enforcement of the rights of the people the state alone, in many cases, can act. The rights of citizens, being merged one with another, constitute the sovereign power of the people or state, and as such can only proceed in the name of the state.

Easton & A. R. Co. v. Greenwich, 25 N. J. Eq. 566; Allen v. Freeholders of Monmouth County, 13 N. J. Eq. 68; Higbee v. Camden & A. R. Co. 19 N. J. Eq. 276; Houck v. Wachter, 34 Md. 265, 6 Am. Rep. 332.

The supervisory or visitorial power over corporations in this country is lodged in the state, and may be exercised in such manner The state of Missouri is not undertaking to as may be designated by legislative authori invoke the protection of the 11th Amend-ty. Generally, it is exercised through the ment to the Constitution of the United States; it is not being sued, but is itself the suitor. Therefore the case of Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38

medium of the courts and public officers or persons authorized or appointed by legislative sanction.

2 Kent, Com. 300; Lewis v. Whittle, 77