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pursuance of said act shall be paid.” 29 a dead letter, and without any operation Stat. at L. 665, 669.

upon the rights of the parties, unless ConOur attention was called by counsel to gress should at some future time sanction the case of Re Hall, 167 U. S. 38, 41, 42 L it, and pass a law authorizing the court to ed. 69, 70, 17 Sup. Ct. Rep. 723, 724, in carry its opinion into effect. Such is not which it is stated that the court of claims the judicial power confided to this court in: made the following general order: "The the exercise of its appellate * jurisdiction; act of 13th February, 1895, 28 Stat. at L. yet it is the whole power that the court 664, chap. 87, having been repealed by Con- is allowed to exercise under this act of Congress, it is ordered in all suits brought un- gress." See also Hayburn's Case, 2 Dall. der or subsequent to said act that motions 409, 1 L. ed. 436; United States v. Ferreira, for new trial, applications for judgments, 13 How. 40, 46, 14 L. ed. 42, 44; Re Sanand all other papers in such suits be re- born, 148 U. s. 222, 37 L. ed. 429, 13 Sup. stored to and retained upon the files of the Ct. Rep. 577, and Interstate Commerce Comcourt without further proceedings being mission v. Brimson, 154 U. S. 447, 483, 486, had.” This order is not found in the pres- 38 L. ed. 1047, 1059, 1060, 4 Inters. Com. ent record.

Rep. 545, 14 Sup. Ct. Rep. 1125. What was the effect of the act of 1897 It results that, as no judgment now renupon the power of this court to re-examine dered by this court would have the sanction the final judgment of the court of claims in that attends the exercise of judicial power, these cases? In our opinion, there can be in its legal or constitutional sense, the presonly one solution of this question.

ent appeal must be dismissed for want of The present cases were brought under the jurisdiction and without any determination act of 1895, and*were determined with ref- of the rights of the parties. erence to its provisions. In view of the re It is so ordered. peal of that act by Congress, the require ment that pending proceedings be vacated, and the express prohibition of the payment

(183 U. S. 53) of judgments theretofore rendered, any dec- MISSOURI, KANSAS, & TEXAS RAIL laration by this court as to the correctness WAY COMPANY, Piff. in Err., of the final judgment entered by the court of claims under the act of 1895 would be H. W. HICKMAN, James Cowgil, and Jo useless for every practical or legal purpose, seph Flory, Constituting the Board of and would not be in the exercise of judi Railroad and Warehouse Commissioner cial power within the meaning of the Con

of the State of Missouri. stitution. It was an act of grace upon the part of the United States to provide for the Kemoval of causes-state as real party. payment by the Secretary of the Treasury of the amount of any final judgment ren- The state 18 not the real party plaintiff, so as to dered under that act. And when Congress preclude a removal of the cause to a Federal by the act of 1897 directed the Secretary court for diverse citizenship, in a suit Instinot to pay any judgment based on the act

tuted by railroad commissioners under Mo. of 1895, that officer could not be compelled

Rev. Stat. 1899, $ 1150, to restrain a rall

road company from violating the law and the by the process of any court to make such

order of the commissioners with respect to payment in violation of the act of 1897.

rates, although the state is contingently llable A proceeding against the Secretary having for the costs of the litigation, and might have that object in view would, in legal effect, some indirect and remote pecuniary interest be a suit against the United States; and by reason of the fact that forfeltures and pensuch a suit could not be entertained by any

altles for disobedience of the orders of the judicial tribunal without the consent of the

court would go to a county school fund. government. It seems, therefore, clear that

(No. 11.) a declaration by this court in relation to the matters involved in the present appeal Argued and submitted October 16, 1901. would be simply advisory in its nature, and

Decided November 11, 1901. not in any legal sense a judicial determination of the rights of the parties. What was

TN ERROR to the Supreme Court of the said by Chief Justice Taney in Gordon v. United States, 117 U. S. 697, 702, may be affirming a decree in a suit in which the here repeated. After stating that this

state court had refused to order a removal court should not express an opinion where

to a Federal court. Reversed. its judgment would not be final and con

See same case below, 151 Mo. 644, 52 S. clusive upon the rights of the parties, and

W. 351. that it was an essential part of every judg; ment passed by a court exercising judicial Statement by Mr. Justice Brewers power that it should have authority to en This case involves the question of removal force it or to give effect to it, the Chief from a state to a Federal court. Justice said: "It is no judgment, in the The state of Missouri has a body of statlegal sense of the term, without it. With- utes for the regulation of railroads. By ono out such an award the judgment would be section a board of railroad commissioner inoperative and nugatory, leaving the ag. is created. To this board is committed the grieved party without a remedy. It would duty of supervising the conduct and charges de merely an opinion, which would remain of railroads, of hearing and deciding com

plaints against them, and making such or- and prosecute in such mode and by such perders as the circumstances require. Section sons as it may appoint, all such inquiries as 1143, Rev. Stat. Mo. (1899), identical with may seem needful to enable it to form a $ 2646, Rev. Stat. Mo. (1889), contains this just judgment in the matter of such petition. provision:

On such hearing the report of said commis“Sec. 1143. Commissioners to See to Ensioners shall be prima facie evidence of the forcement of Article Investigate Com- matter therein stated; and if it be made to plaints.-It shall be the duty of the railroad appear to the court on such hearing, or on commissioners of this state to see that the report of such persons appointed as afore provisions of this article are enforced. said, that the lawful orders or requirements When complaint is made in writing by any of such commissioners drawn in question person having an interest in the matter have been violated or disobeyed, it shall be about which complaint is made, that any lawful for such court to issue a writ of in. rate or rates established by any common junction or other proper process, mandatory carrier are unreasonable, unjust, or extor or otherwise, to restrain such common cartionate, or that any of the provisions of this rier from further continuing such violation article have been or are being violated, it of such order or requirement of said comshall be the duty of said railroad commis- missioners, and enjoin obedience to the same. sioners to proceed at once to investigate such If such court shall hold and decide that any complaint and determine the truth of the order of said board of railroad commissionsame."

ers involved in such proceeding was not a The section also authorizes the commis- lawful order, said court shall, without any sioners to summon witnesses, to punish for reference to the regularity or legality of the failure or refusal to attend or testify, de proceedings of said board or of the order clares that any common carrier wilfully or thereof, proceed to make such order as the knowingly obstructing or preventing the said board should have made, and to enforce commissioners from making such investiga- said order by the process of said court, and tions shall be deemed guilty of a misdemeans to enforce and collect the forfeitures and or and punished by a fine. Other sections penalties herein provided in all respects acprovide for penalties and forfeitures. In & cording to the provisions of this act. And 1144, the same as $ 2647, Rev. Stat. 1889, is in case of any disobedience of any such inthis clause:

junction or other proper process, manda"Sec. 1144. Forfeitures, How Recovered tory or otherwise, it shall be lawful for such and Disposed of. The forfeitures and pen court to issue writs of attachment, or other alties herein provided for shall go to the proper process of said court incident or apcounty school fund of the county where sued plicable to writs of injunction or other propfor, and may be recovered in a civil action er process, mandatory or otherwise, against in the name of the state of Missouri, at the such common carrier; and if a corporation, relation of the board of railroad commission against one or more of the directors, offi. ers to the use of said fund."

cers, or agents of the same, or against any Section 1150 (§ 2653, Rev. Stat. 1889) owner, lessee, trustee, receiver, or other perreads as follows:

son failing to obey such writ of injunction “Sec. 1150. Proceedings when Order of or other process, mandatory or otherwise; Commissioners is Disobeyed Circuit Court and said court may make an order directing -Enforce or Renew Order--Proceedings.- such common carrier or other person so disWhere the complaint involves either a pri- obeying such writ of injunction or other vate or a public question as aforesaid, and proper process, mandatory or otherwise, to the commissioners have made a lawful order pay such sum of money, not exceeding for or requirement in relation thereto, and each carrier or person in default the sum of where such common carrier, or the proper $100 per day, for every day after a day to officer, agent, or employee thereof, shall vio- be named in the order that such carrier or late, refuse, or neglect to obey any such or other person shall fail to obey such injuncder or requirement, it shall be lawful for the tion or other proper process, mandatory or board of railroad commissioners, or any per otherwise; and such money shall be payable son or company interested in such order or to the school fund of the county in which requirement, to apply in a summary way, by such proceeding is pending; and payment petition, to any circuit court at any county thereof may, without prejudice to any other in this state into or through which the line mode of recovering the same, be enforced by of railway of the said common carrier en attachment or order in the nature of a writ ters or runs, alleging such violation or diso of execution, in like manner as if the same bedience, as the case may be; and the said had been recovered by final decree in per. court shall have power to hear and deter- sonam in such court.' When the subject in mine the matter on such short notice to the dispute shall be of the value of $100 or more, common carrier complained of as the court either party to such proceeding before such shall deem reasonable. And such notice court may appeal to the proper appellato may be served on such common carrier, its court in the state, in the same manner that officers, agents, or servants, in such manner appeals are taken from such courts in this as the court may direct; and said court shall state in other proceedings involving like proceed to hear and determine the matter sums of money; but such appeal shall not speedily in such manner as to do justice in operate to stay or supersede the order of the the premises; and to this end said court court or the execution of any writ or process shall have power, if it thinks fit, to direct thereon, unless stay of proceedings be or

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dered by the court from which the appeal Mr. Justice Brewer delivered the opinion is taken, or by the appellate court to which of the court: the appeal is taken, upon the application of The single question presented for our conthe appealing party. Whenever any such pe- sideration is whether the railway company tition shall be filed by the commissioners as was entitled to remove this suit from the aforesaid it shall be the duty of the attor state to the Federal court. The state court ney general, when requested by said commis refused the removal, and the Federal court, sioners, to prosecute the same. All proceed on the other hand, denied a motion to reings commenced upon such petition shall, mand. Under these circumstances this upon application of the* petitioner, be ad- court has jurisdiction to determine whether vanced upon the docket and take precedence there was error on the part of the state court of any other case upon the docket except in retaining the case. Removal Cases, 100 criminal cases. The costs of such proceed. U. S. 457, sub nom. Meyer v. Delaroare R. ings may be, with the approval of the attor. Constr. Co. 25 L. ed. 593; Stone v. South ney general and governor of the state, when Carolina, 117 U. S. 430, 29 L. ed. 962, 6 such suit is brought by any private person, Sup. Ct. Rep. 799; Missouri P. R. Co. v. and when brought by said commissioners Fitzgerald, 160 U. S. 556, 582, 40 L. ed. 536, shall be ordered by the commissioners to be, 542, 16 Sup. Ct. Rep. 389. paid, in the first instance, out of any money

On the face of the record the railway comin the treasury not otherwise appropriated; pany was entitled to a removal. The plainand if upon final hearing the decision is tiff's were citizens of Missouri, the state in against the said common carrier or other which the suit was brought. The railway person against whom the proceeding is being company was a citizen of the state of Kan. prosecuted, such common carrier or person sas. There was, therefore, diverse citizenshall be liable for the costs, for which judg. ship, the defendant a citizen of another state ment may be rendered as in any other case."

?” than that in which the suit was brought pe Under the authority of these statutes, up-titioning for removal, and the removal apon a hearing after complaint and notice, the pears perfect in form. railroad commissioners found that the rail. But it was held by the supreme court of way company was charging

excessive and il. the state of Missouri that it was proper to legal rates for travel over what is known as go behind the face of the record and inquire the Boonville bridge across the Missouri riv- who was the real party plaintiff, and, maker, and made and entered of record an order ing such examination, that court decided directing it to discontinue such charges. that the real party plaintiff was the state This order was dated July 22, 1895. The of Missouri. If that conclusion be correct railway company not complying with the or- then no removal in this case was justifiable, der, a suit was instituted on August 17, because a state is not a citizen within the 1895, in the circuit court of Cooper county, meaning of the removal acts. Stone v. South Missouri, hy such commissioners, setting Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. forth the facts and praying process, manda- ct. Rep. 799; Germania Ins. Co. v. Wiscontory or otherwise, to restrain the defendant sin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. from further continuing to violate the law Rep. 260; Postal Teleg. Cable Co. v. United and the order of the commissioners. The states, 155 U. S. 482, sub nom. Postal Teleg. company in due time filed a petition for re- Cable Co. v. Alabama, 39 L. ed. 231, 15 Sup. moval to the circuit court of the United Ct. Rep. 192. States, alleging that it was a corporation

Was the state the real party plaintiff? created and existing under the laws of the It was at an early*day held by this court, state of Kansas and a citizen of that state, construing the 11th Amendment, that in all and that the plaintiffs were citizens of the cases where jurisdiction depends on the parstate of Missouri. No question was made ty it is the party named in the record. "0s. as to the sufficiency of the petition and bond born v. Bank of United States, 9 Wheat. 738, in respect to any formal matter. The state 6 L. ed. 204. But that technical construction court refused to order the removal, notwith has yielded to one more in consonance with standing which the railway company took a the spirit of the amendment, and in Re transcript of the record and filed it in the Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Federal court, where a motion to remand Ct. Rep. 164, it was ruled upon full consid. was made and overruled. 97 Fed. 113. The eration that the amendment covers, not only state court, after refusing to order the re-suits against a state by name, but those also moval, proceeded with the hearing of the against its officers, agents, and representacase, the railway company declining to take tives where the state, though not named as any part therein. On such hearing a decree such, is nevertheless the only real party was entered in accordance with the petition against which in fact the relief is asked, and of the railroad commissioners. This decree against which the judgment or decree effect. was* appealed to the supreme court of the ively operates. And that construction of state, and by that court on June 30, 1899, the amendment has since been followed. affirmed. 151 Mo. 644, 52 S. W. 351. That amendment refers only to suits brought

against a state. But applying the same lir. George P. B. Jackson for plaintiff principles of construction to the removal in error.

acts and to cases in which it is claimed that Messrs. Edward C. Crow and Samuel the state, though not the nominal, is in fact B. Jeffries submitted the case for defend the real, party plaintiff, it may fairly be ant in error.

held that the state is such real party when

09.

the relief sought is that which inures to it, while in actions under the statute by per: alone, and in its favor the judgment or de- sons of the second class, which generally will cree, if for the plaintiff, will effectively be shippers or passengers, the state has no operate. Such a case was Ferguson v. Ross, pecuniary interest, it is not so in actions 3 I.. R. A. 322, 38 Fed. 161. There an action under this statute by persons of the first was brought in the name of Ferguson, a class, its board of railroad commissioners. shore inspector, against Ross and others, to In such actions it abandons its governmen. reoover à penalty. The statute of New tal character, enters a court of competent juYork authorized the suit to be prosecuted in risdiction as a suitor under the law, incurs the name of the inspector, but all the mon- the same liability for costs and expenses as eys recovered were payable into the treasury does any other suitor, to be paid under the of the state, and it was held by the circuit express provision of the statute out of any court for the eastern district of New York money in the treasury not otherwise appră that the action was one in which the real priated, and is, moreover, pecuniarily interparty plaintiff was the state. It was for incurs in the action, but because of its pe

ested not only by reason of the liabilities it its sole benefit that the action was brought, cuniary interest in the judgments which may and it alone was to be benefited by the re- be obtained and which when pushed to the covery.

final extremity of execution may result in But this case is not like Ferguson v. Ross, the payment of penalties, not directly into and does not come within the rule above the state treasury, it is true, but into the stated. It is not an action to recover any treasury of one of its political subdivisions money for the state. Its results will not in for the benefit of the public schools, to the ure to the benefit of the state as a state in establishment and maintenance of which its any degree. It is a suit to compel complio credit is pledged by the organic law. It ance with an order of the railroad commis- seems to us, therefore, that the state, in addi. sioners in respect to rates and charges. The tion to its governmental, has a real pecuni. parties interested are the railway company, ary, interest in the subject matter of this on the one hand, and they who use the bridge, controversy, and that the suit is being proson the other; the one interested to have the ecuted for its benefit in every sense, and is charges maintained as they have been, the not subject to removal to the United States others to have them reduced in compliance court, and we so hold.” with the order of the commissioners. They We are unable to concur in these views. are the real* parties in interest, and in re- Whatever may be the result of any subse spect to whom the decree will effectively quent or ancillary proceeding, the direct ob operate.

ject of this suit is to obtain a decree of the It is true that the state has a governmen- court commanding the railway company to tal interest in the welfare of all its citizens, comply with the order of the commissioners. in compelling obedience to the legal orders Such a decree is similar to the ordinary deof all its officials, and in securing compliance crees of a court of equity, and it is familiar with all its laws. But such general govern that a court of equity may enforce complimental interest is not that which makes the ance with its orders and decrees by penalties state, as an organized political community, a upon the delinquents. So that if this possiparty in interest in the litigation, for if that ble pecuniary result is sufficient to make were so the state would be a party in inter- the state the real party plaintiff it would est in all litigation; because the purpose of follow that in Missouri the state is the real all litigation is to preserve and enforce party plaintiff in every equity suit, because rights and secure compliance with the law in every equity suit such penalties may be of the state, either statute or common. The imposed. interest must be one in the state as an arti. Neither can it be held that the state's vol. ficial person. Reagan v. Farmers' Loan & untary assumption of the costs of the liti. T. Co. 154 U. S. 362–390, 38 L. ed. 1014-gation when the decree is adverse to the rail. 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. road commissioners makes it the real party Rep. 1047.

plaintiff. That is simply an incidental matWhile not controverting these general ter, and does not determine its relations to propositions, the supreme court of the state the suit any more than its payment of the was of the opinion that the state had a di- salary of the judge, fees of jurors, or any rect, pecuniary interest in the result of the other expenses of the litigation. We are of litigation, by virtue, first, of its possible lia- opinion, therefore, that the party named in bility for costs, and, secondly, because were the record as plaintiff is the real party the litigation pushed to the extreme there plaintiff, and that the voluntary assumpmight be penalties imposed which would, tion by the state of the costs in some conwhen collected, pass into the school fund of tingencies of the litigation, or the indirect the state. We quote its language:

and remote pecuniary results which may fol. “This section of the statute makes pro- low from a disobedience of the orders of tho vision for a civil action to enforce the recourt, do not make it the party to whom quirement in behalf of two classes of per. alone the relief sought inures, and in whose sons: First, the board of railroad commis- favor a decree for the plaintiff will effective sioners;' second, 'any person or company in- ly operate. terested in such order or requirement.' Now, The judgment of the Supreme Court of the

State of Missouri is reversed, and the case The policy also contained the following remanded to that court for further proceed- printed indemnity clause: ings not inconsistent with this opinion. "Against all such immediate loss or dam

age as may occur by fire to the property Mr. Justice Gray was not present at the specified, not exceeding the sum insured, nor argument, and took no part in the decision the interest of the assured in the property, of this case.

except as hereinafter provided.

In finer print are the following conditions (183 U. S. 42)

and exceptions, among others: MILTON C. MITCHELL, Plff. in Err.,

"It being covenanted as conditions of this contract that this company

. shall not be liable

for loss caused by POTOMAC INSURANCE COMPANY OF GEORGETOWN, D. C.

lightning or explosions of any kind unless

fire ensues, and then for the loss or damage Trial insurance explosion

lighted by fire only. match.

"Or, if gunpowder, phosphorus, naphtha,

benzine, or crude earth or coal oils are kept 1. An Instruction submitting to the jury a on the premises, or if camphene, burning

question which is not based on any evidence fluid, or refined coal or earth oils are kept 18 properly denied.

for sale, stored, or used on the premises, in 2. An explosion caused by gasoline kept in a quantities exceeding one barrel at any one

retail stove and tin store is not covered by, time without written consent, ... this policy insuring the stock of goods by a written clause including the grant of a privilege policy shall be void.” to keep a limited quantity of gasoline, where The damage to the insured stock amounted the printed clauses of the policy exclude lla- to $4,568.50, and was due to the falling of bility for explosions of any kind unless fire the building and the crushing of the stock ensues, and then cover loss or damage by fire as hereafter detailed. The defendant denied only.

liability on the ground that the falling of 8. A lighted match is not a fre within the mean the building and injury to the stock had

Ing of an insurance policy excluding liability been caused solely by explosion, no fire enfor damages caused by explosions, so as to cover damages from an explosion caused by suing, and was therefore excepted from the the match.

policy

An extra premium was charged for the [No. 51.]

gasoline privilege.

The plaintiff in error conducted a busi. Argued October 23, 24, 1901. Decided No-ness at 3,108 M street, Georgetown, D. C., vember 11, 1901.

in a two-story-and-attic brick structure, his

stock consisting of stoves and tinware, and N

District of Columbia to review a decision There was a cellar under the building di. afirming a judgment in favor of the defend- vided into two compartments by a division, ant in an action on a policy of insurance. with room for a doorway, but there was no Affirmed.

door between the divisions. The gasoline See same case below, 16 App. D. C. 241. which the insurance policy permitted the The facts are stated in the opinion. plaintiff to keep was stored in the cellar in * Mr. Samuel Maddox for plaintiff in er- a tank underneath the back cellar floor. ror.

Customers were supplied with gasoline from Mr. J. Holdsworth Gordon for defend- a pump which was operated in the back of ant in error.

the store above the cellar where the gasoline

tank was. There were no gas jets in the Mr. Justice Peckham delivered the opin- cellar, and no artificial lighting of any kind. ion of the court:

When near the door one could see without This is an action brought by the plaintiff the use of a match, or candle, or any otherin error upon a policy of insurance issued light, but when 7 or 8 feet away it was by the defendant. On the trial the insur. necessary to have artificial light of someance company had a verdict upon which kind. In the front cellar, stove castings judgment was entered, and, the court of ap- and brick, surplus stoves and ranges, were peals of the District of Columbia having kept. Along the sides shelving was affirmed it (16 App. D. C. 241), the plaintiff ranged upon which brick and castings were has brought the case here. The policy was put. No trouble had been experienced with for $5,000 on the plaintiff's stock in trade, gasoline vapor on account of the furnace which was destroyed on September 27, 1896. which was in the cellar, or from matches or The property insured was described in the candles which were used to light persons written part of the policy as follows: about. There was no fire in the furnace at

"On his stock of stoves and their findings, the time of the loss. Frequently half- & tins, and tinware, tools of trade, and such dozen candles were around on the floor when other goods kept for sale in a first-class re- work was to be done. The back cellar was tail stove and tin store, situate No. 3,108 used for the same purpose as the front cellar, M street, Georgetown, D. C.

except that stoves were not put in there; “Privilege granted to keep not more it was lighted only by a small window look (than) five (5) barrels of gasoline or other ing out into the alley. Matches and candles dll or vapor.”

were used in the back cellar as in the fronte

ar

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