Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-07-13
Thompson Cites Northern Securities
Case Decision.
CONTENDS STATE PARTY IN CASE
Railroads Hold Citizens Are the Real
Party Plaintiffs.
BOTH OF MUNGERs PRESIDE
Delay In Arrival of Railroad AttOr-
neys Causes Court TO Convene
Lnte-Grcut Array of
Legal Talent.
tFrom a s-nn correspondentO


Tho motion OF the attorney general to
remand to the state court the Injunction
suit against the railroads, which the latter
recently transferred to the federal court,
is being argued before Judges W. II.
Munger and 7. c. Munger. The state IL
represented by Attorney General Thompson
and Deputy Attorney w. b. Rose, while
the following railroad men are here: For
the Union Pacific, John n. Baldwin and
Edison Rich, for the Burlington, James
Kclby; for the Northwestern. Ben White;
for the Missouri Pacific, A. Il. Talbot and
Bailey Waggoner and for the Rock Island,
w. d. McHugh and r. J, Greene OF Lin
coin.
! Owing to the delay OF the lawyers from
Omaha in getting here the case was not
begun until after II o'clock. w. b. Rose
opened for the state, reading the brief
which had been prepared by the legal de-
partment of state. Mr.. Rose made a brief
statement of the case, saying an injunction
suit had been started by the attorney gen.
eraI in the state supreme court to prevent
the railroads from violating the cent rate
| bill, the commodity rate bill, the orders
| of the railway commission and the anti
pass bill, all measures passed by the re-
cent legislature. The corporations had
! transferred the case to the federal court.
In the brief Of the state filed by Attorney
General Thompson, Deputy w. B. Rose and
| Assistant Grant Martin 1t is contended
that not only is the state the real party
| at interest, but that there exists no ground
| whatever for the removal of the to
| the federal court inasmuch as no federal
questions are raised and 1t would have
been impossible to have begun the case in
! federal court originally. Under the consti-
tuition of the state and under the common
| law and by reason of numerous state and
federal court decisions the state has a right
to try cases to which it is a party in its
own courts.
Thompson COmbats Removal.
Attorney General Thompson, after citing
various decisions to support his contention.
said:
Every ground OF removal presented by
defendants petition for removal has been
Securities Co.. 1874 u. s. AZ.
Under the adjudcations, the petition in
| the state court shows on it's face that the
state OF Nebraska is the real party plaintiff
and that no question arising under the
constitution laws or treaties Of the United
| States Is involved
The petition in the state court also shows
that It is the duty Of defendant to obey
the statutes pleaded. Under plaintiffs petit
ton the state supreme court acquired juris-
Hdctlon over the defendant and II cannot
be deprived OF the right TO adjudicate the
case by subsequent allegations OF defendant
that the Nebraska statutes are void and
| that the attorney general and the mem
bers OF the Nebraska State Railway com
mission, who are nominal plaintns only
are trespassers and attempting to en-
force void statutes in violation OF the
constitution Of the United States.
on the grounds that the state OF Ne
braska is the real party plaintiff in the
state court and not a citizen within the
meaning Of the removal acts and that the
no arising under
laws or treaties of the United States, the
motion should be sustained and the cause
For the purpose of indicating its own
| sovereignty and OF protecting Its people
from the public injury OF unlawful and
extortionate transportation charges exacted
by the defendant, the senate of Nebraska
may invoke the equity powers Of its own
courts, but the circuit courts of the United
! States are not vested with equity jurisdic-
tion to vindicate the sovereignty OF Ne
braska or to compel defendant to obey Its
laws by exacting for services such COM
pensations only as is allowed by law. The
state Of Nebraska cannot bring its statutes
to this court on any such a mission and
this court has no jurisdiction In equity
either by original suit or removal to en-
tertain the action. and II could not have
been brought originally in the circuit court
This point was fully discussed by Judge
shiras IN Dey against Chicago NJ. ST.
brought originally In the district court OF
Dubuque county, Iowa, TO enforce an order
Of the Iowa Board OF Railroad commis-
statute, and was subsequently removed
TO the United States circuit court. The
circuit court held that It had no tursdc-
tion over the subject matter and romanded
the case TO the state copTt, though the de-
fendent was a Wisconsin corporation.
Railroads Have Inning.
John N. Baldwin OF the Union Pacific
addressed the court at length. He insisted
that the attorney general had quoted
largely from English reports in his brief,
because the American courts did not bear
him out in his contention. Mr. Baldwin
insisted that the state was not such Z
party in interest In the case as 20 prevent
the removal to the federal court. The state
had no monetary interest in the case and
could only have a general interest in the
outcome OF the suit
w. d. McHugh of the Rock Island next
addressed the court, He declared the state
was not an indispensable party to the suit
and concluded that the court might we'll
accept jurisdiction because OF that fact.
He asked the court TO consider the case
controversy between the officials Of the
state and the railroads. IF there is any
violation OF the laws regarding carriers it
is for the Railway commission TO take
action~ he declared
do you construe the railway commission
law to give the commission power 70 en-
force every law regarding transportation
companies?' asked Judge W. H. Munger
But Mr.. AcHuCh did not desire to answer
the question yes or no. lie insisted that
the commission had great power under the
law over transportation companies.
Bailly Wcggener OF the Missouri Pacific
declared that the state had no interest in
the case save a governmental interest He
insisted this was not enough 10 make Il the
real party iu interest so that the motion to
remand to the state court would have TO be
sustained
M'HUGH SPOKESMAN FOR ALL
Conference of Attorneys Decides on
Him as Representative.
Al a meetInk OF the attorneYa for tha