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Norton and his sureties, on the official bond of the former. He alleged, in his petition, the appointment of Norton as marshal; the execution by him and his sureties of the official bond sued on, and then averred that Norton, acting by his deputy, Robert Clarke, by virtue of a writ of attachment against the goods and chattels of one Samuel W. Wallace, issued out of the United States circuit court for the northern district of Texas, in a cause pending therein, in which Naumberg, Kraus, Lauer & Co. were plaintiffs, and said Samuel W. Wallace was defendant, had unlawfully levied upon and seized certain goods, the property of plaintiff and in his rightful possession, and had deprived the plaintiff of the possession and use thereof; that by reason of said unlawful acts of Norton, and Clarke, his deputy, the condition of said bond had been broken, and an action had accrued to the plaintiff on said bond against Norton and his securities thereon. He therefore prayed judgment against the defendants for the sum of $10,000. Both the plaintiff and the defendants were citizens of the state of Texas.
The defendants excepted to the petition on the following grounds, among others :
(1) Because the sureties on the marshal's bond were joined as defendants, the petition not showing in what way they were liable, or that they had in any manner aided the marshal, or his deputy, in committing the trespasses set out in the petition. (2) Because the petition averred that said alleged trespasses were committed by Clarke, the lawful deputy of the marshal, and alleged that the defendants were liable for the acts of the deputy marshal in seizing and taking possession of said goods.
After the filing of their exceptions, and within the time prescribed by the statute, the defendants filed a petition for the removal of the cause to the United States circuit court for the northern district of Texas, Kaufman county, where the action was commenced, lying within that district. The state court made an order for the removal of the case, and defendants in due time filed a transcript of the record in the United States circuit court. Thereupon the plaintiff moved the court to remand the cause to the state court.
Olin Wellborn, W. W. Leake, and John L. Henry, for the motion. W. L. Crawford, M. L. Crawford, and L. F. Smith, contra.
Woods, Justice. The motion to remand must be overruled. It is clear that by the exceptions filed to the petition of the plaintiff a question is presented which arises under the laws of the United States, and consequently that under section 2 of the act of March 3, 1875, (Supp. to the U. S. Rev. St. vol. 1, p. 174,) the cause is removable without regard to the citizenship of the parties. The condition of the bond sued on is in strict conformity with the condition prescribed by section 783 of the United States Revised Statutes. The exceptions filed raise the question, what is the proper construction of the condition, and consequently what is the proper construction of section 783? The court, in passing upon the exceptions, is required to decide what is meant by the words, “the faithful performance of said duties by himself and his deputies," as used in section 783, and to declare whether the acts complained of in the petition are or are not a violation of the condition of the bond prescribed by the statute.
There can, therefore, be no doubt that the case is & removable one, and that the motion to remand should be overruled.
NOTE. See Jackson v. Simonton, 4 Cranch, C. C. 255; Killpatrick v. Frost, 2 Grant, 168.
MoCoy v. C., I., ST. L. & C. R. Co. and another.
(Circuit Court, 8. D. Ohio, W. D. July 31, 1882.)
1. ACTIONS AGAINST FOREIGN CORPORATIONS IN UNITED STATES COURTE-SERV
ICE OF PROCESS UPON AGENTS.
Where foreign corporations engage in business in a state whose laws provide that they may be summoned by process served upon an agent in charge thereof, they are “ found” in the district in which such agent is doing business, within the meaning of the act of congress of March 3, 1875, (18 St. at Large, 470,) and may be served in that manner in suits brought in the United States courts.
Mohr & Mohr Distilling Co. v. Ins. Cos. 12 FED. REP. 474, followed. PUBLIC NATURE AND DUTIES OF RAILROADS. Railroad corporations are quasi public corporations, dedicated to the public
In accepting their charters they necessarily accept them with all the duties and liabilities imposed upon them by law. Thus a quasi public trust is created which clothes the public with an interest in the use of railroads, which
can be controlled by the public to the extent of the interest conferred therein. 3. JURISDICTION OF EQUITY_RAILROADS-INJUNCTION.
In the absence of some statute providing another and different remedy, courts of equity have jurisdiction to enforce this quasi public trust, and compel railroad corporations to discharge the duties imposed upon them by law; and persons injured by the wrongful action or non-action of such corporations may seek redress by injunction, and are not bound to resort to proceedings in
mandamus or to an action at law for damages. 4. RAILROADS_DISCRIMINATION IN DELIVERING LIVE-STOCK TO STOCK-YARDS
A railroad company cannot bind itself to deliver to a particular stock-yard all live-stock coming over its line to a certain point, but it is bound to trans*Reported by J. C. Harper, Esq., of the Cincinnati bar. i
port over its road and deliver to all stock-yards at such point, reached by its tracks or connections, all live-stock consigned, or which the shippers desire to consign, to them, upon the same terms and in the same manner as under Jike conditions it transports and delivers to their competitors; and the performance of this duty may be compelled by injunction at the suit of the proprietor of the stock-yards discriminated against. In Equity. Motion for preliminary injunction. Ramsey & Matthews, for complainant.
Hoadly, Johnson & Colston, for defendant Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company.
Paxton & Warrington and Stallo, Kittredge & Shoemaker, for defendant United Railroads Stock-Yards Company.
BAXTER, C. J. The facts in this case are few and simple. After averring that he is a citizen of Kentucky, and that the United Railroads Stock-Yards Company is an Ohio corporation, and that the defendant the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company is a corporation organized under the laws of Ohio, Indiana, and Illinois, the complainant charges that he is lessee of certain stock-yards, referred to in his bill, situated on the line of the Cincinnati & Baltimore Railroad Company's road, in Hamilton county, Ohio; that his yards are connected with said railroad by a suitable switch; that he is there engaged in the business of receiving, feeding, housing, and shipping live-stock; that the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company's road connects with the Cincinnati & Baltimore Company's road two miles south of complainant's yards; and that the said defendant is, by contract, in the use of that portion of said Cincinnati & Baltimore Railroad Company's road lying between said point of junction and complainant's yards, over which it is carrying on the business of a common carrier of livestock, making regular deliveries to, and receiving stock from, its codefendant, loaded in cars standing on the track. He furthermore. alleges such receipt and delivery of stock in cars on the track is necessary to the successful prosecution of his business, but that, in disregard of the obligations imposed on it by law, said defendant has entered into a contract with the United Railroads Stock-Yards Company, its co-defendant, whereby it has covenanted to make said United Railroads Stock-Yards Company's yards its depot for the receipt and delivery of all live-stock carried by it to and from Cincinnati, and obliged itself, in so far as it could lawfully do so, to deliver all live-stock carried by it to, or received for shipment from, Cincinnati to and from its co-defendant, and that, relying on said contract as a valid obligation and a sufficient juistification of its action
in the premises, said defendant unlawfully and wrongfully refuses to receive stock from, or deliver stock to, complainant, except through the United Railroads Stock-Yards Company's yard, whose yards, it appears, adjoin the complainant's yards.
Complainant thereupon prays for an injunction to restrain said defendant from so discriminating against it, and to compel it to receive and make deliveries of stock to him in the same manner and on as favorable terms as it receives from and delivers to complainant's said competitor.
The application for a preliminary injunction came on for argument before me at Knoxville on the twelfth of July, 1882, when the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company filed its plea denying the jurisdiction of this court, because, as the plea avers, it is not a corporation of Ohio, as it alleged, but that it is a corporation under and in virtue of the laws of the state of Indiana alone. It does not, by its plea, deny service of process or raise any question in regard to its regularity or legal sufficiency. But the counsel insisted in argument that as defendant was an Indiana corporation, and a citizen of that state, it could not be lawfully served with process in this jurisdiction, and that it was, therefore, not legitimately before the court.
We need not stop to demonstrate that the question argued by counsel is broader than the plea, inasmuch as if such question was raised by the plea I would not hesitate to overrule it.
We concede that corporations—mere legal entities—can only legally exist within the territorial limits of the sovereignty creating them; that they must dwell in the places of their creation, and can not migrate to other sovereignties. But it is as equally well settled that they can do business, if not inhibited by law from so doing, in foreign states and countries, and that they may be there sued in relation to the same. 1 Redfield, Railw. p. 63, $ 4.
Hence, if it were conceded that the defendant is an Indiana corporation, as alleged in its plea, it appears that it owns and operates a railroad in Ohio, where its president resides and its principal office is located, and that it is there, by legislative permission, engaged in the business of a railroad carrier. If so, it is liable to be served with process in this jurisdiction. “This court,” says Judge Force, of the superior court of Cincinnati, in a case recently decided by him, "has, by statute, jurisdiction of an action against a foreign corporation when such corporation can be found within the city. A corporation can be found where it can be served with a process according to
law. A foreign corporation can be served with a summons according to law in Ohio) by service upon a managing agent." And about the same time Mr. Justice Matthews said, in a similar case, pending in this court, that "where foreign corporations establish an agency in a state whose laws provide (as in this) that they may be summoned by process served upon an agent, they are found within the district in which such agent is doing business, within the meaning of the act of congress of March 3, 1875, and may be served in the same manner in suits brought in the United States court.” Mohr & Mohr Distilling Co. v. Ins. Co. 12 FED. REP. 474, and authorities cited in the note thereto. These adjudications are conclusive of the question attempted to be raised in this case. The defendant is duly before the court, and it only remains to be determined how far, if at all, the complainant is entitled to relief upon the facts herein stated.
Railroads are potential agencies, constitute a very considerable part of the national wealth, and deserve to be fully protected in all their chartered rights. But while they are essential to the continued prosperity and to the further development of the varied resources of this great country, they are susceptible, when manipulated in the interest of selfish schemes, of being perverted to the most unjust and oppressive uses. They necessarily monopolize all inland carrying business, and if unrestrained can, by unjust discriminations, favor some individuals and communities to the very serious detriment of others. Hence the frequent efforts made to control them in the interests of individuals and communities. By establishing or abandoning a depot they can depreciate or enhance the value of private property, and by extending or withholding facilities increase the profits or inflict losses on all persons engaged in commercial or other pursuits dependent on their favor. An advance of two cents per bushel on the grain annually carried from the grain-producing west to the eastern cities, with a corresponding increase upon all other classes of freight, would impose a tax upon the industry of the country exceeding in amount the annual levies made by congress for the support of the national government. If permitted, they can so regulate their freight charges as to exact from each locality dependent upon them the utmost farthing which the circumstances of each particular case and the absence of wholesome competition enable them to impose. For instance, where competition is sharp, they can carry passengers and freight over their entire lines for less than they charge for short intermediate distances, simply because in the one case they are controlled by competition, and in the other, in absence of such competition, they have