DECISION OF THE SUPREME COURT OF MINNESOTA IN THE ADAMS EXPRESS COMPANY CASE.

State of Minnesota, Supreme Court, October Term, A. D. 1896.-No. 39.

State ex rel. The Railroad and Warehouse Commission, Respondent, vs. Adams Express Company, Appellant.

SYLLABUS.

1. That part of General Statutes 1894, section 399, which provides that the courts may direct the manner in which notice may be given to the common carrier proceeded against, is not violation of the constitutional provision which forbids the delegation of legislative powers to the judiciary. Nor have legislative powers been delegated in section 5979, which provides that the court or judge allowing a writ of mandamus shall direct the manner of serving the

same.

2. The provision in section 399 which authorizes the court to direct service to be made upon the agents or servants of the carrier is not open to the objection that by such service an atempt is made to obtain jurisdiction over the carrier without due process of law.

3. At common law the courts have always possessed the right and authority to direct the manner of service of writs of mandamus, and with respect to service upon private corporations the rule has been that service should be made on the head officer or upon the select body, or person, within the corporation whose province it is to put in motion the machinery necessary to secure performance of the duty.

4. No reason exists why the rule above stated should not be applicable when service is to be made upon a joint stock association.

5. In the case at bar an alternative writ of mandamus was issued on the relation of the State Railroad and Warehouse Commission to compel the Adams Express Company, a non-resident joint stock association engaged in business in this state as a common carrier, to print and keep for public inspection schedules showing the classification, rates, fares and charges for the transportation of property of all kinds and classes, in force and charged by it in the state, and to file a copy of such schedule with the commission. When allowing the writ the court directed that service be made upon one J. W. Owen, general agent of the company. Service was actually made upon Owen, but upon the return day it was shown that he was not a general agent, but simply the local agent at St. Paul. No claim was made that the company had a general manager or general agent in this state or any officer or agent superior to Owen, and it clearly appeared that all of the officers named in the articles of association and all of the shareholders were non-residents of the state and not within its borders. Held, that the service was sufficient to confer jurisdiction upon the court issuing the writ to proceed with the hearing.

State of Minnesota, Supreme Court, October Term, A. D. 1896.-No. 39.-State ex rel. The Railroad and Warehouse Commission, Respondent, vs. Adams Express Company, Appellant.

This was a proceeding by an alternative writ of mandamus to compel the Adams Express Company, doing business as a common carrier in this state, to print and keep for public inspection schedules showing the classification, rates, fares and charges for the transportation of property of all kinds and classes, in force and charged by it in this state, and to file a copy of such schedules with the railroad and warehouse commission. The writ was issued on the relation of the commission, relying on the provisions of Laws 1895, chapter 152, and the several laws therein referred to, and when allowed by the court, it was ordered that service be made by delivering to and leaving a copy of the writ of the petition and of the order for service with J. W. Owen, general agent of the company. On the return day the company ap

peared specially and moved to quash the writ on the ground that the court had not acquired jurisdiction over the company, such motion being based on all of the proceedings and two affidavits from which it appeared that Owen, on whom service had been made, was the local agent at St. Paul and not the general agent, and that the company was not a corporation, but a joint stock association organized in the State of New York, composed of a large number of share-holding members, all non-residents. The motion being denied the company appeals. In directing that service be made in a certain specified way the court below observed the requirements of General Statutes 1894, section 5979, which provides that the court or judge, by an indorsement on the writ of mandamus, shall allow the same, designate the return day and direct the manner of serving a copy of the writ, of the allowance thereof and of any order or direction of the court indorsed on the writ. It is also provided by General Statutes, supra, section 399, that whenever a common carrier refuses or neglects to obey any lawful order or requirement of the commission, made under the provisions of the statute under which it acts, an application may be made to the court alleging such disobedience, and the court is given power to hear and determine the matter on short notice to the carrier, such notico to be served on the carrier, his or its officers, agents or servants in such manner as the court shall direct. That the regulation of the business conducted by common carriers is one over which the legislature has full power to act and that ample authority can by law be conferred upon the railroad and warehouse commission to call on any carrier doing business within our borders, whether a natural or artificial person, resident or non-resident, for such information as is absolutely essential for the proper conduct of the carrier and the protection of the public, ought not to be questioned. Counsel does not contend to the contrary, at this tin e, but his claim is that service of the writ made in the manner designated by the court, and as such service was attempted to be made in this instance, is insufficient to confer any jurisdiction over the company, a joint stock association, a copartnership, as is claimed, none of its share-holders having been served or having voluntarily appeared. It is urged in support of this contention that when the legislature attempted to confer upon the courts the power to determine the manner or upon whom writs of mandamus shall be served, section 5979, supra, or the manner or upon whom the notice prescribed in section 399, supra, shall be served, it delegated its powers to the judiciary, and the latter branch of the government when acting assumes a power purely legislative, forbidden by the constitution. Or, if this position is not sustainable, that any statute which empowers or permits a court to direct that service of a writ or order, based on an alleged disobedience or violation of a public duty by a common carrier, may be made upon its agents or servants, authorizes jurisdiction over such carrier to be obtained without due process of law, is also a violation of a constitutional right. If the claim last mentioned is well founded, a non-resident corporation, association, copartnership or individual engaged in business in this state as a common carrier would seem to be beyond the reach of process of the courts or orders emanating from the commission, unless an officer of the corporation or a member of the association, or of the partnership or the single individual, so engaged in business should accidentally be found within our territorial limits and personal service be thus obtained.

In substance, section 5979, regulating the service of the writ of mandamus, has been the statute of the state and its predecessor, the territory, since the enactment of General Statutes 1851, chapter 83, section 8. A change in the phraseology was made and the proviso added by General Laws 1875, chapter 68, section 2. So far as we know, the power of the legislature to authorize the courts to direct the manner in which service of a writ of mandamus should be made, or the authority of the court to make an order as to the manner of service, has not been questioned heretofore in any of the courts of this state. At common law the rule respecting the service of this writ upon a private corporation was that it should be made upon the head officer of the corporation, or upon that select body, or person, within the corporation whose province it was to put in motion the machinery necessary to secure performance of the duty commanded. The ancient strictness of the common law also required that such service should be made within the jurisdiction of that sovereignty

by which the corporation was created, but this strictness was long ago relaxed, so as to permit service to be made within the jurisdiction wherein the corporation had engaged in business in all litigation connected with that business. And such is now the rule, independently of statute, and no reason exists why this relaxation should not be extended to the service of prerogative writs. (State ex rel. Board vs. Penn. Ry. Co. 42 N. J. L. 490.) And there is no reason why service upon joint stock associations should not be made in the same manner as service upon corporations. It may be, technically speaking, that such an association is nothing more than a copartnership formed between the shareholders, but this is immaterial. It is merely a question of definition, and they have been called quasi corporations of a private character. (Morawetz on Corp. section 6.) They are associations having some of the features of a common law partnership and many of the features of a private corporation, as will be obvious upon an examination of defendant's articles of association introduced upon the hearing below. We are not only confident that in authorizing the court to exercise the power of directing the manner in which service shall be made as it has in both sections-399 and 5979-there has been no delegation of legislative powers, but that the courts in the absence of a statute expressly regulating the subject have always possessed the right and authority to direct the manner in which prerogative writs shall be served and, in case of corporations, upon whom they should be served. Of course we are not to be understood as saying that this power could be exercised arbitrarily and unreasonably. It must be within the rule of the common law as to service heretofore stated. And that if service is made upon a corporation in accordance with that rule, such service is due process of law, for the real question is, has the proper officer or representative of the coporate body received such a notice as will give it or him an opportunity to be heard. The error of defendant's counsel is in assuming that the proceedings adopted for the regulation of common carriers are to be classed with those usually arising in courts of justice, and that all steps taken must be in strict accordance with those which end in ordinary judgments. And also in assuming that because defendant is a joint stock association it is wholly unlike a corporation. Certainly as to the service of orders issued by the commission and of prerogative writ issued by the courts, no substantial distinction can be pointed out. Each has its officers, its board of directors, its general manager and its general and local agents. If at common law service could properly be made upon the head officer or upon the person within the corporation who would be expected to obey the command, and be valid, why could not service be made upon a general or local agent of this non-resident association and be valid, provided it is fairly to be inferred from the record that he came within the description? We have here an association of non-residents who have voluntarily assumed a position in the transaction of business which involves duties to the public. The duty in the present case grows out of the management of their business as a common carrier in this state, and is a public duty which the association seeks to evade by asserting that the person upon whom service has been made is nothing more than a local agent in the city of St. Paul. Nor has the association been candid enough to suggest that it has any general manager or agent within the state upon whom service might be made with greater probability of reaching the association, or better prospect of obtaining jurisdiction. It would seem remarkable if under such circumstances the courts must be declared powerless to enforce the fulfillment of the important obligations which this and every other non-resident common carrier owes to the public. In the absence of any showing that defendant association has a general manager or general agent in this state, or any officer or agent superior to the one on whom this writ was served, we are justified in assuming that he was the person whose province it was to obey the command, to cause the schedules to be printed and to file with the commission a copy of the same. As local agent at St. Paul he undoubtedly had in his possession the schedules required, for he could not well transact business without them. If so, applying, by analogy, to a joint stock association the common law rule as to service of a writ of mandamus upon a corporation, we regard the service in question as sufficient for the court to proceed. What the remedy will be if the rule is made absolute. and a peremptory writ issued we are not required to express any opinion

Counsel for the state have contended that this service could be upheld under General Statutes, supra, section 5200, while counsel for defendant in sists that this statute is unconstitutional. The present law is the original act as amended, General Laws 1891, chapter 79, and the amendatory act is attacked upon the ground that the subject is not expressed in the title. We need not determine this point, for if the amendatory act does come within the constitutional inhibition, service was properly made under either of the sections heretofore commented on.

Order affirmed and case remanded.

COLLINS, J.

A PROPOSED BILL FOR AN ACT TO AMEND SECTION 22 OF CHAPTER 10 OF THE GENERAL LAWS OF 1887.

AS AMENDED BY CHAPTER 106 OF THE GENERAL LAWS OF 1891.

Be it enacted by the Legislature of the State of Minnesota:

Section 1. That section 22 of chapter 10 of General Laws of 1887, as amended by chapter 106 of the General Laws of 1891, be amended so as to read as follows: "Section 22. That whenever any common carrier, subject to the provisions of this act, shall violate, or refuse, or neglect to obey or perform any lawful order or requirement of the commission made under the provisions of this act, not founded upon a controversy requiring a trial by jury, as provided by the seventh (7th) amendment to the constitution of the United States, or as provided by section four (4) of the constitution of this state, it shall be lawful for the commission, or for any company or person interested in such order or requirement, to apply in a summary way, by petition, to any district court in any county in this state in which the carrier complained of has its principal office, or in any county through or into which its line of road extends, 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, his or its officers, agents or servants, in such manner as the court shall direct; and said court shall proceed to hear and determine the matter speedily and without the formal pleadings and proceedings applicable to dinary suits further than is necessary in the judgment of the court to clearly define the issues between the parties, and in such manner as to do justice in the premises. With such petition shall be filed all the pleadings, papers, exhibits and testimony (or copies thereof certified by the secretary of the commission), tiled with or adduced before the commission in the course of the investigation resulting in the order or requirement to enforce which the petition is filed; such pleadings, papers, exhibits and testimony (or copies thereof so certified) shall be receivable in evidence and shall constitute the record in the case, on which the court shall proceed to adjudge all matters in controversy therein, unless the court shall think it needful that additional evidence be taken or further inquiries be prosecuted to enable it to form a just judgment, in which case the court shall commit the matter to the commission to prosecute such inquiries and to take such additional evidence at such time and place as the court may direct, with any suggestions concerning the same which the court may deem suitable. The commission shall thereupon proceed to prosecute such further inquiries and take such additional evidence and report the same to the court as a part of the record in the case; and the commission may at the same time, in its discretion, rehear and reconsider any and all questions involved in or connected with its order or requirement to enforce which the petition was filed (such rehearing to be had upon all additional evidence in connection with the whole record filed with the petition as above provided); and may there upon make and file in the case with its report and return of evidence taken, an amended or supplemental order, which shall then be substituted for the original order or requirement of the commission; and the case shall thereupon proceed for the enforcement

of such amended or supplemental order only. If in any proceeding to enforce the order or requirement of the commission under any section of this act, including any amended or supplemental order or requirement, the court shall, upon the hearing, be of opinion that no material error plainly prejudicial to the carrier appears in the proceedings, decision, order or requirement of the commission, it shall so decide, and shall thereupon enter such judgment, decree or order, or issue such writ, or injunction or other proper process, mandatory or otherwise, as shall be suitable or necessary to compel compliance with such decision, order or requirement in such manner and within such time as may appear reasonable; but if upon such hearing the court shall be of opinion that material error does appear plainly prejudicial to the carrier in the proceedings, decision, order or requirement of the commission, it shall so decide, and shall thereupon enter such final judgment, decree or order as may be proper, but without prejudice to a subsequent application for the enforcement of any order made by the commission upon a rehearing pursuant to the provisions of this section, and in case of any disobedience of any such writ,, injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment or any other process of said court incident or applicable to writs of injunction, or other proper process, mandatory or otherwise, against such common carrier, and, if a corporation, against one or more of the directors, officers or agents of the same, or against any owner, lessee, trustee, receiver or other person failing to obey such writ of injunction or other proper process, mandatory or otherwise, and said court may, if it shall think fit, 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 five hundred (500) dollars 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 as the court shall direct, either to the party complaining or into court, to abide the ultimate decision of the court, or into the state treasury; and payment thereof may without prejudice to any other. mode of recovering the same, be enforced by an attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in personam in such court; and such court may in every such matter order the payment of such costs and counsel fees as shall be deemed reasonable.

Either party to an appeal, trial or other proceeding had in the district court pursuant to the provisions of this act shall have the right to appeal to the supreme court of the state from any order or judgment of the district court under the same regulations now provided by law in relation to appeals to said supreme court from orders or judgments of the district court, except that on such appeals security shall rot be required when the same is taken by the said commission, and except that the return of the district court provided for by section four (4), chapter eighty-six (86), General Statutes of one thousand eight hundred and seventy-eight (1878), may be filed in the supreme court at any time before or during the next succeeding term of said court after the making of the order or entering the judgment appealed from; and such appeal shall be entered upon the calendar and heard by said supreme court upon such short notice to the respective parties as the court may deem reasonable, with a view to a speedy determination of the same. No appeal to the supreme court shall operate to stay cr supersede the order of the court or the execution of any writ or process thereon, unless the supreme court shall, upon application duly made and upon such terms as it may deem just, suspend the operation of the same, pending the appeal hereinbefore provided for.

If the matters involved in such order or requirement of said commission are founded upon a controversy which at common law would entitle the party to a trial by jury, as provided by the seventh amendment of the Constitution of the United States, or by section four (4), article one (1), of the constitution of this state, and any such common carrier shall violate or refuse or neglect to obey or perform the same, after notice given by said commission, as provided in subdivision (b) (as amended) of section thirteen (13) of this act, it shall be lawful for any company or person interested in such order or require