# Herndon v. Chicago Rock Island & Pacific Railway Company/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
218 U.S. 135
Herndon v. Chicago Rock Island & Pacific Railway Company
Argued: April 14, 1910. --- Decided: May 31, 1910
This suit was brought by the Chicago, Rock Island, & Pacific Railway Company in the circuit court of the United States for the western district of Missouri, to enjoin the execution of certain provisions of the acts of the legislature of the state of Missouri, as violative of complainant's rights under the Federal Constitution. The bill was filed against Harry T. Herndon, prosecuting attorney of Clinton county, Missouri, and John E. Swanger, secretary of state of the state of Missouri.
The bill is very lengthy, and as the decision of the court was made upon demurrer to it, will be necessary to call attention to some of its pertinent allegations. Complainant avers that it is a duly organized corporation of the state of Illinois, operating a railroad in certain states; among others, in the state of Missouri; and is engaged in both state and interstate commerce. It sets forth in detail the acts of the state of Missouri authorizing the consolidation, extension, and operations of the railroads under which it claims to have acquired its system of railroads in that state. It avers that it duly filed with the secretary of state of the state of Missouri a copy of its charter, in compliance with the laws of the state, and received a certificate, November 22, 1902, in all respects in compliance with the laws of the state, authorizing the complainant to carry on business in said state for the term ending April 3, 1930, which certificate is in full force, never having been canceled or withdrawn.
The bill sets forth the act of March 19, 1907, amending § 1075 of the Revised Statutes of Missouri, requiring railroad companies to perform certain duties, among others, to stop passenger trains at the junction or intersecting points of other railroads. As that amended section is one of the acts complained of, it is set forth in the margin.
Sec. 1075. Every railroad corporation in this state which now is, or may hereafter be, engaged in the transportation of persons or property from one point in this state to another point in this state, shall give public notice of the regular time of starting and running its cars, and shall furnish sufficient accommodations for the transportation of all such passengers, baggage, mails, and express freight as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, at the junctions of other railroads, and at the junction of branch railroads of the same system, as herein defined, carrying passengers, and at the several stopping places; and shall, at all crossings and intersections of other railroads, where such other railroad and the railroad crossing the same are now, or may hereafter be made, upon the same grade, and the character of the land at such crossing or intersection will admit of the same, erect, build, and maintain, either jointly with the railroad company whose road is crossed, or separately by each railroad company, a depot or passenger house and waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival and departure of tains at such junction or railroad crossing, and shall keep such depot or passenger house or rooms warm, lighted, and open to the ingress and egress of all passengers for a reasonable time before the arrival and until after the departure of all trains carrying passengers on said railroad or railroads; and they are hereby required to stop all trains carrying passengers at the junction or intersection of other railroads, and they are further required to receive all passengers and baggage for, and to stop, on a flag or signal, all trains carrying passengers, at the junction of all branch railroads of the same system, which said branch railroads are 18 miles or more in length, and at the terminus of which is located any county seat town of any county in this state, a sufficient length of time to allow the transfer of passengers, personal baggage, mails, and express freight from the trains of railroads so connecting or intersecting; or they may mutually arrange for the transportation of such persons and property over both roads without change of cars; and they shall be compelled to receive all passengers and freight from such connecting, intersecting, or branch roads whenever the same shall be delivered to them. And every railroad company or corporation owning, operating, or leasing any railroad in this state shall keep all its depots, stations, or passenger stations, whether located at the crossing or Concerning this section, and the requirement to stop trains at junction points, the bill sets out that the complainant has traffic rights over the Chicago, Burlington, & Quincy Railway track between Cameron Junction and Kansas City; that the town of Lathrop is a town of about 1,000 inhabitants, situated in Clinton county, Missouri, between Cameron Junction and Kansas City, on said line of railway; that complainant, for the purpose of carrying on its business as a common carrier, at the said station of Lathrop, stops a morning and evening passenger train each way, two west bound, and two east bound, and, in addition thereto, stops two passenger trains, one east bound and one west bound, which are local freight trains regularly carrying passengers. Complainant further sets forth that it runs a fast through passenger train between Chicago, Fort Worth, and Dallas, Texas, by means of connecting carriers in the state of Texas, and a fast through passenger train between Chicago and the Pacific coast by means of connecting carriers beyond the territory of Oklahoma, neither of which stop at the station of Lathrop to take on or let off passengers; that said trains which do not stop at Lathrop are immediately preceded by trains that do stop there, and which are maintained for the purpose of collecting passengers from local stations and conveying them to nearby stations on the line of the road of the complainant, where both of said fast through trains do stop for the purpose of taking on and letting off passengers.
The complainant further avers that the tracks of the complainant cross and intersect with the tracks of the Atchison, Topeka, & Santa Fe Railway Company at the said station of Lathrop; that the Atchison, Topeka, & Santa Fe Railway runs two trains each way every day, all of which stop at the station of Lathrop, and which make close and direct connection with the trains which the complainant stops at the station of Lathrop; that except under unusual circumstances passengers seldom find it convenient to change from the complainant's railway to that of the Atchison, Topeka, & Santa Fe line at the station of Lathrop. Complainant avers that to stop the through interstate trains running between Chicago, Fort Worth, and Dallas, Texas, and between Chicago and the Pacific coast, would be a direct, unreasonable, and unwarrantable interference with its interstate business, and that said through trains are maintained for, and are essential to the purpose of, transporting interstate passenger traffic, and for the carriage of the United States mails. The complainant avers that the facilities for the interchange of passengers at the station of Lathrop are amply sufficient to accommodate the public, and that the service is both convenient and satisfactory to the public. The bill further avers that if the said through trains are required to stop at all junctions with other railways and there interchange passengers with such road, their usefulness as through trains will be destroyed, and the interstate business of the complainant interfered with to an unwarranted extent without any corresponding benefit to the traveling public; that the law of March 19, 1907, as applied to said trains which do not stop at the station of Lathrop, is a serious burden upon interstate commerce so conducted by said trains, and an unlawful and unreasonable interference therewith, and in violation of the Constitution of the United States and the acts of Congress regulating commerce. Complainant avers that the act of March 19, 1907, requiring trains carrying passengers to stop at the junction or intersections of other roads for the purpose of interchanging passengers and baggage at such junction points, was not passed in the exercise of the police power of the state of Missouri to protect the traveling public, but solely for the purpose of increasing traveling facilities, and to provide a more convenient and satisfactory train service at such junction points. Complainant avers that it installed an interlocking plant and an automatic signal device at the intersection with the tracks of the Atchison, Topeka, & Santa Fe Railway at the station of Lathrop, and thereby provided an absolutely safe method for its through trains to pass over the tracks of the Atchison, Topeka, & Santa Fe road without stopping. The bill avers that Harry T. Herndon, as prosecuting attorney for the county of Clinton, Missouri threatens to and will, unless enjoined, put in motion the special provisions of the act of March 19, 1907, for the enforcement of penalties of $25 per day since July 21, 1907, which penalties in a short time would amount to many thousands of dollars.
Complainant further avers that defendant John E. Swanger, secretary of the state of Missouri, under and by authority of said act of the state of Missouri, approved March 13, 1907, concerning the bringing of cases by foreign corporations in the Federal courts, which act is set forth in the margin, threatens to, and will, unless
Sec. 1. If any foreign or nonresident railway corporation of whatever kind, incorporated, created, and existing under the laws of any other state, territory, or country, and doing business as a carrier of freight or passengers from one point in this state, to another point in this state, under the laws of this state regulating or authorizing the licensing of, or the issuing of a permit or a certificate of authority to, or suffering or allowing, any such corporation to enter or to do business in this state shall, without the consent of the other party, in writing, to any suit or proceeding brought by or against it in any court of this state, remove said suit or proceeding to any Federal court, or shall institute any suit or proceeding against any citizen of this state in any Federal court, the license, permit, certificate of authority, and all right of such corporation and its agents to carry passengers or freight from one point in this state to another point in this state shall forthwith be revoked by the secretary of state, and its right to do such business shall cease, and the secretary of state shall publish such revocation in some newspaper of large and general circulation in the state, and such corporation shall not again be authorized or permitted to carry passengers or freight from one point in this state to another point in this state, or to do business as a carrier of passengers or freight of any kind from one point in this state to another point in this state at any time within five years from the date of such revocation or the cessation of such right. But the revocation of such license, permit, right, certificate of authority, or the cessation of such right, shall not be deemed to prohibit or prevent such corporation from carrying passengers or freight from a point within this state to a point without this state, or from a point without this state to a point within this state, or from making what are portation.
Sec. 2. If any corporation included in the provisions of this act shall carry, or attempt to carry, or hold itself out to carry, passengers or freight of any kind from one point in the state to another, without a license, permit, or certificate of authority therefor, first had and obtained from the state of Missouri,-to be issued by the secretary of state,-or after its license, permit. right, or certificate of authority to carry passengers or freight of any kind from one point in this state to another point in this state, shall have been revoked or ceased, as provided for by the preceding section of this enjoined, cancel the complainant's certificate of the right to do business in the state of Missouri, and will take other steps necessary to revoke the license and permit, as provided in the act of March 13, 1907, should the complainant file this, its bill of complaint, in the United States circuit court, and because of any attempt complainant may make to remove any case to a Federal court from any state court of the state of Missouri, and to bring any case in any Federal court against a citizen of the state of Missouri. The bill then sets out the coming of the complainant into the state of Missouri in accordance with the laws of the state, that it acquired property therein, which included many miles of railroad, depots, station grounds, shops, and warehouses, terminals, rolling stock, and other equipment necessary to the maintenance and operation of its line, located in the state of Missouri, and at an assessed value of $3,252,775. The bill sets out the various particulars wherein it is contended that the act of March 13, 1907, is void under the Constitution of the United States, and the bill avers that if the complainant should attempt to remove into the Federal courts any case commenced in the state courts of Missouri, or should commence proceedings in any Federal court against a citizen of the state of Missouri, the defendant, as secretary of state of the state of Missouri, would deny the right of complainant to do business in the state of Missouri, and if the complainant attempted to carry on the same it would be subject to forfeit and to pay to the state of Missouri a penalty of not less than $2,000 nor more than $10,000, to be recovered in any court in the state having jurisdiction. An injunction was prayed against the defendant Harry T. Herndon as prosecuting attorney of the county of Clinton, Missouri, requiring him to refrain from enforcing, or attempting to enforce, the provisions of the act of March 19, 1907, so far as it relates to the stopping of the trains aforesaid, at the crossing of the Atchison, Topeka, & Santa Fe Railway at the station of Lathrop, Clinton county, Missouri, and from enforcing, or attempting to enforce, the penalties of the statute; and that the defendant John E. Swanger, secretary of state of the state of Missouri, be restrained from enforcing, or attempting to enforce, the provisions of the act of March 13, 1907, providing for the revocation and canceling of the complainant's charter because of the removal of cases from a state to a Federal court, or bringing suit in a Federal court against any citizen of the state of Missouri.
A demurrer was filed to the bill by both of the defendants, the same was overruled, and a final decree was entered enjoining the enforcement of the act of March 13, 1907, because of the beginning of the suits, or the removal of cases to Federal courts, and enjoining the enforcement of the act of March 19, 1907, so far as it relates to the complainant's said trains passing through Lathrop, or the stopping of such trains at the station of Lathrop, and enjoined the defendant prosecuting attorney of Clinton County, Missouri, from enforcing, or attempting to enforce, the provisions of said act as to stopping said trains, or enforcing the penalties provided for in that act for the failure to comply with the provisions thereof.
It is evident from the foregoing statement that the constitutional questions involved in this case are: First, whether, under the act of March 19, 1907, the complainant can be compelled to stop its through trains, described in the bill, at the station of Lathrop, and whether such a statute, so far as it relates to interstate commerce trains, is void as an attempt to regulate interstate commerce, and imposes a burden thereon by state legislation. And, secondly, under the act of March 13, 1907, can the license and right of the complainant to do business in the state of Missouri be lawfully revoked because it has begun a suit, or may remove a suit, from a state court to a Federal court, complainant being a corporation organized in another state.
Before considering these questions, we will notice some of the objections to the decree below, made by the learned counsel for the state. It is asserted that the bill is multifarious, and that there is no right to join the defendants, the prosecuting attorney and secretary of state, in the same bill. But no objection to such joinder of the parties was specially taken, and it is well settled that an objection of this character must be promptly made. The proper way to raise such question is by special demurrer, specifically directed to the objection. 1 Street, Fed. Eq. Pr. § 936. It is true that a court may itself take the objection in extreme cases, when that course is essential to the necessary and proper administration of justice. But, as laid down in Oliver v. Piatt, 3 How. 333, 412, 11 L. ed. 622, 658, Mr. Justice Story, speaking for the court, if the court can get to a final decree without serious embarrassment, it will do so; and says the learned justice: 'A fortiori, an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity.' No such case exists here. Certainly, in the absence of a specific objection, there is no difficulty in hearing at the same time the case against the secretary of state and the prosecuting attorney. The bringing of the suit against the prosecuting attorney in the Federal court, if the statute of March 13, 1907, is to be carried out, will forfeit the complainant's right to do business within the state, and we see no reason why the right to declare such forfeiture may not be considered with the case against the prosecuting attorney. We find no merit in the objection of multifariousness.
As to the objection that the suit is one against the state, we think no discussion is necessary, and content ourselves with a reference to the late cases in this court to that point. Ex parte Young, 209 U.S. 123, 52 L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441; Western U. Teleg. Co. v. Andrews, 216 U.S. 165, 54 L. ed. --, 30 Sup. Ct. Rep. 286.
The act of March 19, 1907, requiring the stopping of certain trains, upon its face seems to require the stoppage of all passenger trains at the junction or intersection of other roads. But it is contended by counsel for the state that this statute is but an amendment of former statutes, and that the requirement to stop trains carrying passengers, as qualified by the subsequent language of the act, means to stop such trains for a sufficient length of time to allow the transfer of passengers, personal baggage, mails and express from the trains of the roads connecting or intersecting to the trains of the other road, and that, therefore, the act applies only to the operation of trains actually carrying such passengers, personal baggage, mails and express as are destined for points on the connecting road, and does not require the stoppage of all trains carrying passengers, as is set out in the bill. And this conclusion, it is said, must necessarily follow because of the construction given to the statute prior to its amendment on March 19, 1907. State use of School Fund v. Wabash, St. L. & P. R. Co. 83 Mo. 148; Logan v. Hannibal & St. J. R. Co. 77 Mo. 666; State ex rel. McPherson v. St Louis & S. F. R. Co. 105 Mo. App. 212, 79 S. W. 714.
The contention is that the amendment of 1907 has only the effect to bring into the statute certain provisions as to branch railroads. Assuming this to be a correct interpretation of this statute, and that it only requires the stoppage of trains at Lathrop carrying passengers destined for points on the intersecting railroad, or to take up passengers there, destined for points on complainant's road, the question remains, Would the requirement of the act of March 19, 1907, to stop the through trains described in the bill, for such purpose and under the circumstances set forth, be an unlawful attempt to regulate interstate commerce, and impose an unlawful burden thereon?
The extent of the right to control through interstate transportation of passengers by state legislation, or under orders of a commission authorized by the state, has been recently before this court. Mississippi R. Commission v. Illinois C. R. Co. 203 U.S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U.S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121.
The principle to be deduced from these cases is, that where a railroad company has already provided ample facilities for the adequate accommodation of the traveling public, such as may be proper and reasonable at any given point, and operates interstate commerce trains, carrying passengers, through the same places, at which such interstate trains do not stop, a state regulation which requires the stopping of such interstate trains, in addition to ample facilities already provided, to the detriment and hindrance of interstate traffic, is an unlawful regulation and burden upon interstate commerce. Applying the principles thus settled, and taking the allegations of the bill as true, which we must do, in view of the fact that the case was decided upon demurrer, we think that construing the statute so as to require the stoppage of the through trains whenever any persons might seek to avail themselves thereof, in order to permit a transfer of passengers from one road to the other upon such trains, would be an unnecessary and unlawful burden upon interstate traffic. The averment of the bill is that the business is already amply provided for in the other trains of the company and the connecting road, and the serious detriment to the interstate carrying business from the requirement to stop the through trains described for the purpose of permitting such transfers is fully set forth in the bill, and admitted by the demurrer.
It is true that the bill avers that few persons require transfer at such connecting point, but if passengers have the right, under this statute, to require the stoppage of such through trains at Lathrop whenever they may desire to avail themselves of such privilege, serious inconvenience would result to the interstate traffic in question. It is to be remembered that this statute is not of that class passed in the exercise of the police power of the state for the promotion of the public safety, and requiring the stoppage of trains by one railroad before crossing the tracks of another railroad; this statute, as its second section shows, was passed for the purpose of providing greater facilities of travel, and not for the protection of life and limb. We therefore reach the conclusion that the circuit court did not err in granting the injunction, so far as it relates to the enforcement of the act of March 19, 1907, relating to the stoppage of the interstate commerce trains at the station of Lathrop.
As to the validity of the act of March 13, 1907, forfeiting the right of the company to do business in the state of Missouri, and subjecting it to penalties in case it should bring a suit in the Federal courts, or remove one from the state courts to the Federal courts, but little need be said. This is so because of the cases decided at this term, involving contentions kindred to the one made in this case. See Western U. Teleg. Co. v. Kansas, 216 U.S. 1, 54 L. ed. --, 30 Sup. Ct. Rep. 190; Pullman Co. v. Kansas, 216 U.S. 56, 54 L. ed. --, 30 Sup. Ct. Rep. 232; Ludwig v. Western U. Teleg. Co. 216 U.S. 146, 54 L. ed. --, 30 Sup. Ct. Rep. 280; Southern R. Co. v. Greene, 216 U.S. 400, 54 L. ed. --, 30 Sup. Ct. Rep. 287.
Applying the principles announced in those cases, it is evident that the act in controversy cannot stand, in view of the provisions of the Constitution of the United States. Moreover, this is not a case where the state has undertaken to prevent the coming of the corporation into its borders for the purpose of carrying on business. The corporation was within the state, complying with its laws, and had acquired, under the sanction of the state, a large amount of property within its borders, and thus had become a person within the state, within the meaning of the Constitution, and entitled to its protection. Under the statute in controversy, a domestic railroad company might bring an action in the Federal court, or, in a proper case, remove one thereto, without being subject to the forfeiture of its right to do business, or to the imposition of penalties provided for in the act. In all the cases in this court, discussing the right of the states to exclude foreign corporations, and to prevent them from removing cases to the Federal courts, it has been conceded that while the right to do local business within the state may not have been derived from the Federal Constitution, the right to resort to the Federal courts is a creation of the Constitution of the United States and the statutes passed in pursuance thereof.
It is enough now to say that within the principles decided at this term, in the cases cited above, the act of March 13, 1907, as applied to the complainant railroad company, in view of the admitted facts set out in the bill in this case, is unconstitutional and void. We find no error in the decree granted in the Circuit Court, and the same is affirmed.
Affirmed.
The CHIEF JUSTICE concurs in the result.

## Notes

* ↑ Be it enacted by the general assembly of the state of Missouri as follows:
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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