The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1908-01-21

way corporation, created and existing
under the laws of any other state and
doing a railway business from one point
in the state to another point within the
state, shall without the written con-
sent of the party, remove a case from
the state court TO a United States
court, or shall. without said written
consent, institute any suit against q
citizen of the state i'm any federal court.
then the secretary of state shall revoke
the license to do business, from one
point within the state to any other
point within the state, either in carry
ing freight or passengers, and doing
such business shall subject 1t to PEN
atty of not less than 81. coo and not more
than 500 for each offense. And such
disability shall continue for FIVE years.
1t is alleged in this case that COM
plainant is about removing a case and
the secretary will follow that by revok-
ing its right to co business. The de-
PENDANT contends that this is In effect
an action against the state. in VIOLA
ton of the eleventh amendment to the
constitution. The complainant con-
tends that the act of 1907 impairs its
contract with the state, and denies it
the equal protection OF the law if en-
forced.
McPherson's Decision.
Judge Mcpherson in his decision goes
into the law OF the case at great
length and quotes freely from previous
decisions to sustain his decision.
The decision in part follows:
This court is mindful of the crit
icism by many laymen as well as many
lawyers to the effect that United States
courts have no right. nor even the pow :
eT 10 decree the invalidity of state
rsfa he
talk. is. that the people know what
they need. and that their representa-
tives in legislature assembled alone
should determine what statutes we must
have. And when so determined and ey-
idenced by legislative enactment, that
the courts should not interfere by DC
cree, and thereby thWart the legislative
Will. In other words, that it is well
To limit the powers of executives and
courts but a written constitution re-
straining legislative bodies is ali wrong
and that Great Britain has the model
government Officers of the state -
continued Judge Mcpherson in his de-
cis.on. TOO often decry the power of
the nation. States rights is their shib-
boleth," he added.
Extreme of States Rights.
The most attractive argument to
some lawyers of recent days is that
the state courts alone in the first in
stance should pass upon the question
as to the validity of state statutes with
the right of the offended party to carry
the case for final decree to the supreme
court of the United States. Such ar
guments are plausible, are convincing
TO many good people. but are so dam
geTous as to amount 70 a heresy. 1t is
form"
Judge Mcpherson cited a decision OF
the Wisconsin state supreme court
which upheld a state statute under
which an insurance c0mpany's charter
had been revoked for removing a case
10 a federal court. in this case, how
ever, ne says the company had no prop
erty in the. state. and had made no in
Vestments therein.
IN the case at bar" he says, license
to do business is not the question.
Each company invested millions Of dol
lars and it is now in the state and can
not be removed. To prevent it from
doing business means appropriating its
property, or destroying it. without max
ing any compensation therefor.
Investors Lose All.
1T was invited to come into the
state and was told by the law then in
force that il should have the same and
like standing as resident companies
with benefits as great and with bur-
dens no greater. After these invest
ments had been made. and which can
not be withdrawn. ii is declared by leg
islation that lilo kind Of litigation shall
De carried on by it in any court other
than the state courts, but leaving to
the railway corporation organized I'M
der the laws sof the state to go to the
national courts with its litigation of all
kinds arising under the laws or con-
stitution of the United States The
state corporation. organized under its
laws, may sue or be sued in any court,
state or national, if there is a federal
question, but a foreign corporation do
ing business as a competitor must at
all times be subject to the state courts
or if il ventures into d national court
then the investors lose all"
in concluding, Judge Mcpherson
holds as follows.
The Missouri statute of 1907 is void
because il allows resident company
to sue in the federal court, If there is a
federal question. and denies that right
to a nonresident company. Regard
less of the last preceding statement.
the statute is void because il seeks to
take from the complainant its right to
bring or remove a case to the United
States court. which right is given by
the constitution and the act OF con-
sress. which by article of the consti-
tuition is declared to be the supreme
law of the land, anything in the con-
stitution or laws of any state to the
contrary Notwithstanding.
The statute is void because il is an
effort to not only impair, but to re-
pudiate the contract of the state made
with the company, by which it was in
duced 10 come into the state, making
investments in large sums, and was
authorized to do a state business, but
now declaring that it shall not do such
business, thereby rendering it insolv-
ent. and taking from the people along
its line the use of the railroad for state
business. the company viii surrender
under coercion rights given ii by the
national constitution and valid enact
ments of congress.
Rule Not Conclusive.
This court recognizes the rule that
presumpuyely all legislation is valid,
but it is only q presumption, and in no
sense conclusive.