On June 15, 1907, the state of Nebraska, William T. Thompson, attorney general, Nebraska State Railway Commission, Hudson J. Winnett, J. A. Williams, and Henry T. Clarke, Jr., as members of the Nebraska State Railway Commission of the State of Nebraska brought suit against the Chicago, Burlington, & Quincy Railway Company to enjoin that company from charging more for the transportation of freight and passengers within the state of Nebraska than the rates fixed for such transportation in certain acts of the legislature of the state of Nebraska, and also from disobeying the orders of the Nebraska State Railway Commission, and from cocealing from that commission the condition of its business, and from making any unlawful discrimination, in violation of the state statute. [209 U.S. 436, 437] June 22 the defendant company filed its petition for the removal of the action to the circuit court of the United States. The petition for removal alleged:
Bond was filed with the petition for removal and also the transcript of the record in the office of the clerk of the circuit court of the United States for the district of Nebraska on the 3d day of July, 1907
Plaintiffs then, on July 12, filed a motion to remand the case to the supreme court of the state of Nebraska, on the ground that the circiut court of the United States did not have jurisdiction over the subject- matter of said action or of the parties thereto, and had no jurisdiction to hear or determine the cause. The motion to remand, having been argued and submitted to the court, was overruled for reasons set fouth in an opinion.
Subsequently leave was granted to file a petition in this court for a writ of mandamus directing the remanding of the action to the supreme court of the state of Nebraska, and, being filed, a rule was entered thereon directing the district judges for the district of Nebraska, holding the circuit court of the United States in and for that district, to show cause why said petition for mandamus should not be granted.
The judges made due return to the rule in which, after reciting the proceedings had in the circuit court, they stated that it became and was their duty as judges holding that court to hear the argument on the motion to remand, and consider and decide that motion, which, pursuant to said duty, the said judges heard and decided accordingly. They further showed that the motion to remand was denied by the judges [209 U.S. 436, 439] holding the circuit court, in the exercise of the jurisdiction conferred upon them by law, and that their decision upon the motion was in the exercise of judicial judgment and discretion vested in them. The return, and as a part thereof, was accompanied by a complete transcript of the record of the cause in the circuit court.
Messrs. William T. Thompson and William B. Rose for petitioner. [209 U.S. 436, 440] Messrs. William D. McHugh and Maxwell Evarts for respondents.
Mr. Chief Justice Fuller delivered the opinion of the court:
The motion to remand presented for decision the question whether there was in the case a controversy wholly between citizens of different states, to the complete determination of which the state of Nebraska was not an indispensable party. If defendant's contention was correct, the action could have been originally brought in the Federal court, and its jurisdiction of the case was complete on removal. The circuit court [209 U.S. 436, 441] was called upon to determine that question and to exercise judicial discretion in deciding it. This being so, its jurisdiction was complete; and if it erred in its conclusions the remedy is not by writ of mandamus, which cannot be used to perform the office of an appeal or writ of error. The applicable principles have been laid down in innumerable cases. Ex parte Bradley, 7 Wall. 364, 19 L. ed. 214; Ex parte Loring, 94 U.S. 418 , 24 L. ed. 165; Re Rice, 155 U.S. 396 , 39 L. ed. 198, 15 Sup. Ct. Rep. 149; Re Atlantic City R. Co. 164 U.S. 633 , 41 L. ed. 579, 17 Sup. Ct. Rep. 208.
It appeared in the case of Re Pollitz, 206 U.S. 323 , 51 L. ed. 1081, 27 Sup. Ct. Rep. 729, that Pollitz had brought suit in the supreme court of New York against the Wabash Railroad Company and a number of defendants. Pollitz was a citizen of the state of New York; a number of the defendants were citizens of the state of New York; the Wabash Railroad Company was a corporation organized under the laws of states other than New York. The Wabash Railroad Company filed a petition to remove the case to the circuit court of the United States for the southern district of New York. The petition for removal alleged that there was, in the cause, a controversy wholly between citizens of the different states, to the determination of which controversy the defendants, citizens of the state of New York, were not indispensable or necessary parties. The cause was removed and Pollitz made a motion to remand, which was denied. Pollitz applied to this court for a writ of mandamus directing the remanding of the cause to the state court. The rule was entered, and a return was made to the effect that the order denying the motion to remand had been made and entered into the exercise of the jurisdiction and judicial discretion conferred upon the circuit judge by law, and for the reasons expressed in the opinion filed with the order.
The rule was discharged and the petition dismissed, and the court said (330):
If this case is one wherein there was a controversy wholly between citizens of different states, to the complete determination of which other parties to the record were not indispensable or necessary, then, the removal being properly sought on that ground, the Federal court had jurisdiction. If the state of Nebraska was not an indispensable party by reason of its interest in the controvdersy, its presence on the record as a plaintiff would not defeat the jurisdiction of the Federal court. And to the circuit court was committed the decision of those questions in the first instance, the correctness of which cannot be examined upon this application.
We must add that the mere presence on the record of the state as a party plaintiff will not defeat the jurisdiction of the Federal court when it appears that the state has no real interest in the controversy. And in the present case the circuit court was not bound to adjudicate the question merely by an inspection of the nominal parties to the record, for the mere presence of the state of Nebraska as a party plaintiff was not of itself sufficient necessarily to defeat the jurisdiction of the Federal court. It became, and was, the duty of the circuit court to determine the question whether the state of Nebraska was an actual party plaintiff in the present suit, and to determine that question by consideration of the nature [209 U.S. 436, 445] of the case as presented by the whole record, and not 'by a reference to the nominal parties to the record.'
This the circuit court did, and, from an inspection of the entire record, for the reasons stated in the opinion filed, the court held that, although the state of Nebraska was a nominal party plaintiff on the record, yet it had no real substantial legal interest in the controversy. The complaint alleged that the Nebraska State Railway Commission was charged with the duty to regulate proper and lawful intrastate rates upon the railroad lines in the state of Nebraska, and to enforce thereon all lawful intrastate rates and charges for the transportation of passengers and freight, and to prevent discrimination in such intrastate freight and passenger rates and charges; and alleged the duty of the attorney general to bring all suits necessary for that purpose; the suit had for its object and purpose merely the securing of an injunction against the defendant company, to restrain that company from charging for the transportation of freight and passengers within the state of Nebraska more than the rates fixed by the state authority for that purpose, and from disobeying orders of said Nebraska State Railway Commission, and from concealing from said commission the true condition of its business, and from making any unlawful discrimination in issuing intrastate passes, mileage tickets, and transportation within the state of Nebraska.
The question whether the state of Nebraska is the real party plaintiff must be determined from the consideration of the nature of the case as disclosed by the record. If the nature of the case is such that the state of Nebraska is the real party plaintiff, the Federal court will so decide for all purposes of jurisdiction, even though the state were not named as a party plaintiff. If the nature of the case is such that the state is not a real party plaintiff, the Federal court will so decide for the purposes of jurisdiction, even though the state is named nominally as a party plaintiff.
The question whether such a case as this is one in which [209 U.S. 436, 446] the state is the real party in interest and the real party plaintiff was determined by this court in Missouri K. & T. R. Co. v. Missouri R. & Warehouse Comrs. 183 U.S. 53 , 46 L. ed. 78, 22 Sup. Ct. Rep. 18, where the only question presented was whether, in a suit brought to enjoin a railroad company from charging greater rates within the state of Missouri than those fixed by state suthority, the state of Missouri was the real party plaintiff. The state was not joined as a party plaintiff, but the question had to be determined, not by a view of the nominal parties to the record, but from the consideration of the nature of the case as shown by the whole record. The defendant company presented to the state court a petition for removal, which was denied. The supreme court of the state held that it was proper to go behind the face of the record and inquire who was the real party plaintiff; and, after making such examination, decided that the state was the real party plaintiff, and that the Federal court had no jurisdiction on the removal. The case was brought to this court for a review of the decision of the supreme court of Missouri, and this court, recognizing the rule that a mere inspecition of the parties named as the plaintiffs was not conclusive, examined the record and the nature of the case, and, in an opinion rendered by Mr. Justice Brewer, held that the nature of the case was such that the state of Missouri was not a real party in interest and not a real party plaintiff.
The court analyzed the nature of the proceeding, showed that there was nothing in such an action which affected the state as such, and that the relief sought did not inure to the state alone, and that a decree in favor of the plaintiff would not effectively operate in favor of the state.
The circuit court might clearly have been correct in its decision that the present case was one in which the state of Nebraska was not the real party plaintiff, but that decision could not be reviewed by mandamus.
The circuit court was called upon on this record to decide whether the state of Nebraska had any real or legal interest [209 U.S. 436, 447] in the controversy alleged to have been wholly between citizens of different states; and it was a decision which the court had a right to make, involving no abuse of judicial discretion. A premature review cannot be obtained by a writ of mandamus.
Without expressing any opinion as to whether the state was a necessary party to the relief asked, which involved the removability of the case, this court bases its judgment on the mandamus entirely upon the ground that, as the circuit court had jurisdiction to pass upon the question of the removability of the case, and as its order overruling the motion to remand was subject to be reviewed by a higher coururt after the case had been disposed of by final judgment, the remedy was by appeal, and not by mandamus.
Rule discharged; petition dismissed