183 U.S.

53
22 S.Ct. 18
46 L.Ed. 78

MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY,

This case involves the question of removal from a state to a Federal court.
The state of Missouri has a body of statutes for the regulation of railroads.
By one section a board of railroad commissioners is created. To this board
is committed the duty of supervising the conduct and charges of railroads,
of hearing and deciding complaints against them, and making such orders
as the circumstances require. Section 1143, Rev. Stat. Mo. (1899),
identical with 2646, Rev. Stat. Mo. (1889), contains this provision:
'Sec. 1143. Commissioners to See to Enforcement of Article Investigate
Complaints.It shall be the duty of the railroad commissioners of this
state to see that the provisions of this article are enforced. When complaint
is made in writing by any person having an interest in the matter about
which complaint is made, that any rate or rates established by any
common carrier are unreasonable, unjust, or extortionate, or that any of
the provisions of this article have been or are being violated, it shall be the
duty of said railroad commissioners to proceed at once to investigate such
complaint and determine the truth of the same.'
The section also authorizes the commissioners to summon witnesses, to
punish for failure or refusal to attend or testify, declares that any common
carrier wilfully or knowingly obstructing of preventing the commissioners
from making such investigations shall be deemed guilty of a misdemeanor
and punished by a fine. Other sections provide for penalties and

forfeitures. In 1144, the same as 2647, Rev. Stat. 1889, is this clause:
'Sec. 1144. Forfeitures, How Recovered and Disposed of.The
forfeitures and penalties herein provided for shall go to the county school
fund of the county where sued for, and may be recovered in a civil action
in the name of the state of Missouri, at the relation of the board of railroad
commissioners to the use of said fund.'
Section 1150 ( 2653, Rev. Stat. 1889) reads as follows:
'Sec. 1150. Proceedings when Order of Commissioners is Disobeyed
Circuit CourtEnforce or Renew OrderProceedings.Where the
complaint involves either a private or a public question as aforesaid, and
the commissioners have made a lawful order or requirement in relation
thereto, and where such common carrier, or the proper officer, agent, or
employee thereof, shall violate, refuse, or neglect to obey any such order
or requirement, it shall be lawful for the board of railroad commissioners,
or any person or company interested in such order or requirement, to apply
in a summary way, by petition, to any circuit court at any county in this
state into or through which the line of railway of the said common carrier
enters or runs, alleging such violation or disobedience, as the case may be;
and the said court shall have power to hear and determine the matter on
such short notice to the common carrier complained of as the court shall
deem reasonable. And such notice may by served on such common
carrier, its officers, agents, or servants, in such manner as the court may
direct; and said court shall proceed to hear and determine the matter
speedily in such manner as to do justice in the premises; and to this end
said court shall have power, if it thinks fit, to direct and prosecute in such
mode and by such persons as it may appoint, all such inquiries as may
seem needful to enable it to form a just judgment in the matter of such
petition. On such hearing the report of said commissioners shall be prima
facie evidence of the matter therein stated; and if it be made to appear to
the court on such hearing, or on report of such persons appointed as
aforesaid, that the lawful orders or requirements of such commissioners
drawn in question have been violated or disobeyed, it shall be lawful for
such court to issue a writ of injunction or other proper process, mandatory
or otherwise, to restrain such common carrier from further continuing such
violation of such order or requirement of said commissioners, and enjoin
obedience to the same. If such court shall hold and decide that any order
of said board of railroad commissioners involved in such proceeding was
not a lawful order, said court shall, without any reference to the regularity
or legality of the proceedings of said board or of the order thereof, proceed
to make such order as the said board should have made, and to enforce

said order by the process of said court, and to enforce and collect the
forfeitures and penalties herein provided in all respects according to the
provisions of this act. And in case of any disobedience of any such
injunction or other proper process, mandatory or otherwise, it shall be
lawful for such court to issue writs of attachment, or other proper process
of said court incident or applicable to writs of injunction or other proper
process, mandatory or otherwise, against such common carrier; and if a
corporation, against one or more of the directors, officers, or agents of the
same, or against any owner, lessee, trustee, receiver, or other person
failing to obey such writ of injunction or other process, mandatory or
otherwise; and said court may make an order directing such common
carrier or other person so disobeying such writ of injunction or other
proper process, mandatory or otherwise, to pay such sum of money, not
exceeding for each carrier or person in default the sum of $100 per day,
for every day after a day to be named in the order that such carrier or other
person shall fail to obey such injunction or other proper process,
mandatory or otherwise; and such money shall be payable to the school
fund of the county in which such proceeding is pending; and payment
thereof may, without prejudice to any other mode of recovering the same,
be enforced by attachment or order in the nature of a writ of execution, in
like manner as if the same had been recovered by final decree in personam
in such court. When the subject in dispute shall be of the value of $100 or
more, either party to such proceeding before such court may appeal to the
proper appellate court in the state, in the same manner that appeals are
taken from such courts in this state in other proceedings involving like
sums of money; but such appeal shall not operate to stay or supersede the
order of the court or the execution of any writ or process thereon, unless
stay of proceedings be ordered by the court from which the appeal is
taken, or by the appellate court to which the appeal is taken, upon the
application of the appealing party. Whenever any such petition shall be
filed by the commissioners as aforesaid it shall be the duty of the attorney
general, when requested by said commissioners, to prosecute the same.
All proceedings commenced upon such petition shall, upon application of
the petitioner, be advanced upon the docket and take precedence of any
other case upon the docket except criminal cases. The costs of such
proceedings may be, with the approval of the attorney general and
governor of the state, when such suit is brought by any private person, and
when brought by said commissioners shall be ordered by the
commissioners to be, paid, in the first instance, out of any money in the
treasury not otherwise appropriated; and if upon final hearing the decision
is against the said common carrier or other person against whom the
proceeding is being prosecuted, such common carrier or person shall be
liable for the costs, for which judgment may be rendered as in any other

case.'
Under the authority of these statutes, upon a hearing after complaint and
notice, the railroad commissioners found that the railway company was
charging excessive and illegal rates for travel over what is known as the
Boonville bridge across the Missouri river, and made and entered of
record an order directing it to discontinue such charges. This order was
dated July 22, 1895. The railway company not complying with the order,
a suit was instituted on August 17, 1895, in the circuit court of Cooper
county, Missouri, by such commissioners, setting forth the facts and
praying process, mandatory or otherwise, to restrain the defendant from
further continuing to violate the law and the order of the commissioners.
The company in due time filed a petition for removal to the circuit court of
the United States, alleging that it was a corporation created and existing
under the laws of the state of Kansas and a citizen of that state, and that
the plaintiffs were citizens of the state of Missouri. No question was made
as to the sufficiency of the petition and bond in respect to any formal
matter. The state court refused to order the removal, notwithstanding
which the railway company took a transcript of the record and filed it in
the Federal court, where a motion to remand was made and overruled. 97
Fed. 113. The state court, after refusing to order the removal, proceeded
with the hearing of the case, the railway company declining to take any
part therein. On such hearing a decree was entered in accordance with the
petition of the railroad commissioners. This decree was appealed to the
supreme court of the state, and by that court on June 30, 1899, affirmed.
151 Mo. 644, 52 S. W. 351.
Mr. George P. B. Jackson for plaintiff in error.
Messrs. Edward C. Crow and Samuel B. Jeffries submitted the case for
defendant in error.
Mr. Justice Brewer delivered the opinion of the court:

The single question presented for our consideration is whether the railway
company was entitled to remove this suit from the state to the Federal court.
The state court refused the removal, and the Federal court, on the other hand,
denied a motion to remand. Under these circumstances this court has
jurisdiction to determine whether there was error on the part of the state court
in retaining the case. Removal Cases, 100 U. S. 457, Sub nom. Meyer v.
Delaware R. Constr. Co. 25 L. ed. 593; Stone v. South Carolina, 117 U. S. 430,
29 L. ed. 962, 6 Sup. Ct. Rep. 799; Missouri P. R. Co. v. Fitzgerald, 160 U. S.

556, 582, 40 L. ed. 536, 542, 16 Sup. Ct. Rep. 389.

On the face of the record the railway company was entitled to a removal. The
plaintiffs were citizens of Missouri, the state in which the suit was brought. The
railway company was a citizen of the state of Kansas. There was, therefore,
diverse citizenship, the defendant a citizen of another state than that in which
the suit was brought petitioning for removal, and the removal appears perfect in
form.

But it was held by the supreme court of the state of Missouri that it was proper
to go behind the face of the record and inquire who was the real party plaintiff,
and, making such examination, that court decided that the real party plaintiff
was the state of Missouri. If that conclusion be correct then no removal in this
case was justifiable, because a state is not a citizen within the meaning of the
removal acts. Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct.
Rep. 799; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup.
Ct. Rep. 260; Postal Teleg. Cable Co. v. United States, 155 U. S. 482, sub nom.
Postal Teleg. Cable Co. v. Alabama, 39 L. ed. 231, 15 Sup. Ct. Rep. 192.

Was the state the real party plaintiff? It was at an early day held by this court,
construing the 11th Amendment, that in all cases where jurisdiction depends on
the party it is the party named in the record. Osborn v. Bank of United States, 9
Wheat. 738, 6 L. ed. 204. But that technical construction has yielded to one
more in consonance with the spirit of the amendment, and in Re Ayers, 123 U.
S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164, it was ruled upon full consideration
that the amendment covers, not only suits against a state by name, but those
also against its officers, agents, and representatives where the state, though not
named as such, is nevertheless the only real party against which in fact the
relief is asked, and against which the judgment or decree effectively operates.
And that construction of the amendment has since been followed. That
amendment refers only to suits brought against a state. But applying the same
principles of construction to the removal acts and to cases in which it is claimed
that the state, though not the nominal, is in fact the real, party plaintiff, it may
fairly be held that the state is such real party when the relief sought is that
which inures to it alone, and in its favor the judgment or decree, if for the
plaintiff, will effectively operate. Such a case was Ferguson v. Ross, 3 L. R. A.
322, 38 Fed. 161. There an action was brought in the name of Ferguson, a shore
inspector, against Ross and others, to recover a penalty. The statute of New
York authorized the suit to be prosecuted in the name of the inspector, but all
the moneys recovered were payable into the treasury of the state, and it was
held by the circuit court for the eastern district of New York that the action was
one in which the real party plaintiff was the state. It was for its sole benefit that

the action was brought, and it alone was to be benefited by the recovery.
5

But this case is not like Ferguson v. Ross, and does not come within the rule
above stated. It is not an action to recover any money for the state. Its results
will not inure to the benefit of the state as a state in any degree. It is a suit to
compel compliance with an order of the railroad commissioners in respect to
rates and charges. The parties interested are the railway company, on the one
hand, and they who use the bridge, on the other; the one interested to have the
charges maintained as they have been, the others to have them reduced in
compliance with the order of the commissioners. They are the real parties in
interest, and in respect to whom the decree will effectively operate.

It is true that the state has a governmental interest in the welfare of all its
citizens, in compelling obedience to the legal orders of all its officials, and in
securing compliance with all its laws. But such general governmental interest is
not that which makes the state, as an organized political community, a party in
interest in the litigation, for if that were so the state would be a party in interest
in all litigation; because the purpose of all litigation is to preserve and enforce
rights and secure compliance with the law of the state, either statute or
common. The interest must be one in the state as an artificial person. Reagan v.
Farmers' Loan & T. Co. 154 U. S. 362-390, 38 L. ed. 1014-1021, 4 Inters.
Com. Rep. 560, 14 Sup. Ct. Rep. 1047.

While not controverting these general propositions, the supreme court of the
state was of the opinion that the state had a direct, pecuniary interest in the
result of the litigation, by virtue, first, of its possible liability for costs, and,
secondly, because were the litigation pushed to the extreme there might be
penalties imposed which would, when collected, pass into the school fund of
the state. We quote its language:

'This section of the statute makes provision for a civil action to enforce the
requirement in behalf of two classes of persons: First, 'the board of railroad
commissioners;' second, 'any person or company interested in such order or
requirement.' Now, while in actions under the statute by persons of the second
class, which generally will be shippers or passengers, the state has no pecuniary
interest, it is not so in actions under this statute by persons of the first class, its
board of railroad commissioners. In such actions it abandons its governmental
character, enters a court of competent jurisdiction as a suitor under the law,
incurs the same liability for costs and expenses as does any other suitor, to be
paid under the express provision of the statute out of any money in the treasury
not otherwise appropriated, and is, moreover, pecuniarily interested not only by
reason of the liabilities it incurs in the action, but because of its pecuniary

interest in the judgments which may be obtained and which when pushed to the
final extremity of execution may result in the payment of penalties, not directly
into the state treasury, it is true, but into the treasury of one of its political
subdivisions for the benefit of the public schools, to the establishment and
maintenance of which its credit is pledged by the organic law. It seems to us,
therefore, that the state, in addition to its governmental, has a real pecuniary,
interest in the subject-matter of this controversy, and that the suit is being
prosecuted for its benefit in every sense, and is not subject to removal to the
United States court, and we so hold.'
9

We are unable to concur in these views. Whatever may be the result of any
subsequent or ancillary proceeding, the direct object of this suit is to obtain a
decree of the court commanding the railway company to comply with the order
of the commissioners. Such a decree is similar to the ordinary decrees of a court
of equity, and it is familiar that a court of equity may enforce compliance with
its orders and decrees by penalties upon the delinquents. So that if this possible
pecuniary result is sufficient to make the state the real party plaintiff it would
follow that in Missouri the state is the real party plaintiff in every equity suit,
because in every equity suit such penalties may be imposed.

10

Neither can it be held that the state's voluntary assumption of the costs of the
litigation when the decree is adverse to the railroad commissioners makes it the
real party plaintiff. That is simply an incidental matter, and does not determine
its relations to the suit any more than its payment of the salary of the judge,
fees of jurors, or any other expenses of the litigation. We are of opinion,
therefore, that the party named in the record as plaintiff is the real party
plaintiff, and that the voluntary assumption by the state of the costs in some
contingencies of the litigation, or the indirect and remote pecuniary results
which may follow from a disobedience of the orders of the court, do not make
it the party to whom alone the relief sought inures, and in whose favor a decree
for the plaintiff will effectively operate.

11

The judgment of the Supreme Court of the State of Missouri is reversed, and the
case remanded to that court for further proceedings not inconsistent with this
opinion.

12

Mr. Justice Gray was not present at the argument, and took no part in the
decision of this case.