MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY v. MISSOURI RAILROAD AND WAREHOUSE COMMISSIONERS, 183 U.S. 53

Mr. Justice Brewer, after making the above statement of the case, 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; Stone v. South Carolina, 117 U. S. 430; Missouri Pacific Railway Company v.

Fitzgerald, 160 U. S. 556, 582. On the face of the record the railway company was entitled to a removál. 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 ivas 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 Bemoval Acts. Stone v. South Carolina, 117 U. S. 430; Germania Ins. Co. v. Wisconsin, 119 U. S. 473; Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482. Was the State the real party plaintiff?

It was at an early day held by this court, construing the Eleventh Amendment, that in all cases where jurisdiction depends on the party, it is the party named in the record. Osborn v. United States Bank, 9 Wheat. 738. But that technical construction has yielded to one more in consonance with the spirit of the Amendment, and in In re Ayers, 123 U.

S. 443, 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 be fairly held that the State is such real party when the relief sought is that which enur,es 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, 38 Fed. Rep. 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. 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 enure 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 & Trust Co., 154 U. S. 362-390. 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.” 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 enforcó 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.

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 salan' 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 enures and in whose favor a decree for the plaintiff'will effectively operate.

The judgment of the Supreme Court of the State of Missouri is reversed, and the case remanded to that cou/rtfor farther proceedings not inconsistent with this opinion. Me. Justice Gray was not present at the argument and took no

part in the decision of this case.