In an action for mandamus against a judge of a territorial court
in New Mexico who, after the appeal, ceased to be judge and whose
successor has consented that the action be revived against him,
this Court may, under the Act of Congress of February 8, 1899, if
in its judgment necessity exists for such action in order to obtain
a settlement of the legal questions involved, substitute the name
of the successor in place of the original appellee. In this case,
this Court orders the substitution, the party substituted not to be
liable for any costs prior hereto.
A court cannot acquire jurisdiction over the person of a
defendant except by actual service of notice upon him within the
jurisdiction or upon someone authorized to accept service in his
behalf, or by his waiver, by general appearance or otherwise, of
the want of due service.
Service of a summons in an action in a territorial court of New
Mexico on the president of a railway corporation, while passing
through New Mexico as a passenger on a railroad train,
held insufficient as a personal service of a corporation
organized under an act of Congress, having offices in New York,
Kansas and Illinois, and none in New Mexico; the mere. ownership of
lands, the bringing of suits to protect such lands, in New Mexico
does not locate the corporation in New Mexico for the purposes of a
personal action against it based on such a service of the summons.
Nor was such service authorized by the Compiled Laws of New Mexico,
1897.
Although the state of the statute law in respect of suits like
this may operate injuriously at times, the situation cannot be
changed by the courts; that can only be done by legislation.
This appeal brings up for review a final judgment of the Supreme
Court of the Territory of New Mexico denying an application to that
court by the Caledonian Coal Company for a writ of mandamus to
compel Benjamin S. Baker, judge of the District Court of the Second
Judicial District of that territory, to take cognizance of a
certain action brought in
Page 196 U. S. 433
that court against the Santa Fe Pacific Railroad Company and
others.
The petition for mandamus makes the following case:
On the seventeenth day of February, 1904, the Caledonian Coal
Company, organized under the laws of New Mexico, commenced an
action in the District Court of the Second Judicial District of
that territory against the Santa Fe Pacific Railroad Company, the
Atchison, Topeka & Santa Fe Railroad Company, the Colorado Fuel
& Iron Company, and the American Fuel Company, to recover
damages for alleged violations of the Interstate Commerce Act of
1887 and the antitrust act of 1890.
By the ninth section of the above act of 1887 it is provided
that
"any person or persons claiming to be damaged by any common
carrier subject to the provisions of this act may either make
complaint to the Commission as hereinafter provided for, or may
bring suit in his or their own behalf for the recovery of the
damages for which such common carrier may be liable under the
provisions of this act, in any district or circuit court of the
United States of competent jurisdiction; but such person or persons
shall not have the right to pursue both of said remedies, and must
in each case elect which one of the two methods of procedure herein
provided for he or they will adopt. . . ."
24 Stat. 379, c. 104. And by section 7 of the above act of 1890,
it was provided that
"any person who shall be injured in his business or property by
any other person or corporation by reason of anything forbidden or
declared to be unlawful by this act may sue therefor in any circuit
court of the United States in the district in which the defendant
resides or is found, without respect to the amount in controversy,
and shall recover threefold the damages by him sustained, and the
costs of suit, including a reasonable attorney's fee."
26 Stat. 209, c. 647.
A summons was issued against the Santa Fe Pacific Railroad
Company, and was returned by the marshal of the territory, the
return stating that it was served at the above district on
Page 196 U. S. 434
the thirteenth day of May, 1904, by delivering a true copy
thereof, with a copy of the complaint thereto attached, to E. P.
Ripley, president of the defendant corporation.
The Santa Fe Railroad Company is a corporation organized and
existing under the act of Congress of March 3, 1897, defining the
rights of purchasers under mortgages authorized by an Act of
Congress approved April 20, 1871, concerning the Atlantic &
Pacific Railroad Company. 29 Stat. 622, c. 374.
When the grievances set out in the petition were committed, the
Santa Fe Pacific Railroad Company was the owner of a line of
railroad within the Second Judicial District of New Mexico and
elsewhere within that territory, but which line at the commencement
of this action, had been sold and transferred to, and was being
operated by, the Atchison, Topeka & Santa Fe Railroad Company
under a conveyance authorized by an Act of Congress of June 27,
1902, 32 Stat. 405, c. 1159, was the owner of several hundred
thousand acres of land within that district, and, at the
commencement of the action for damages, was prosecuting in one of
the counties of the territory, within the same district, suits
involving the company's title and possession of parts of those
lands.
All of those lands, with the rights, privileges, and franchises
appertaining thereto, were acquired by the Santa Fe Pacific
Railroad Company as the successor of the Atlantic & Pacific
Railroad Company, to which last-named company they were granted by
the Act of Congress of July 27, 1866. 14 Stat. 292, c. 278.
The petition for mandamus alleged that, by reason of the above
facts, the Santa Fe Pacific Railroad Company was an "inhabitant" of
the Second Judicial District of New Mexico and by reason of the
presence of Ripley, its president, in that territory and within
that district, and the service of summons in the above action upon
him as such president, the company was "found" in the district
within the meaning of the acts of Congress.
Page 196 U. S. 435
Nevertheless, the defendant Baker, associate justice of the
supreme court of the territory and judge of the District Court of
the Second Judicial District, quashed the return of the above
summons and refused to assume jurisdiction of the action so far as
the Santa Fe Pacific Railroad Company was concerned, or to require
that company to answer the declaration or complaint filed by
petitioner.
The defendant Baker made a return to a rule issued against him
to show cause. From that return, it appears that the Santa Fe
Pacific Railroad Company specially appeared in the action for the
purpose of moving, and did move, to quash the service of process
upon grounds set forth in an affidavit of its president. In that
affidavit, Ripley stated that, when served with summons, he was
only a passenger on a railroad train passing through the territory;
that the company had its office in the City of New York, while its
land commissioner had an office at Topeka, Kansas, and its
president an office at Chicago, Illinois; that the company had no
property in the Territory of New Mexico except lands acquired by it
under a foreclosure of a mortgage of the Atlantic & Pacific
Railroad Company, and which lands were undisposed of; that it has
had no office or place of business in the territory since the sale
of its road. This affidavit was used on the hearing of the motion
to quash, and the facts stated in it were not contradicted.
The contention of the company, therefore, was that the service
in question was insufficient to bring the company personally before
the court.
The return of the judge also stated that the actions in
ejectment brought by the railroad company against trespasses upon
its property were instituted prior to the sale of its railroad
property and franchises to the Atchison, Topeka & Santa Fe
Railroad Company, and that the refusal of the judge to assume
jurisdiction in the case referred to was upon the ground that the
service upon Ripley as president of the company was not, in his
opinion, sufficient to subject it personally to the jurisdiction of
the court.
Page 196 U. S. 436
The relief sought was an alternative writ of mandamus, directing
Judge Baker to assume jurisdiction of the cause, so far as the
Santa Fe Railroad Company was concerned, and to require that
company to plead, answer, or demur.
The supreme court of the territory, after hearing the case, upon
the pleadings, return, and the proofs, denied the petition for
mandamus and dismissed the application. From that order the present
appeal was prosecuted.
Page 196 U. S. 439
MR. JUSTICE HARLAN delivered the opinion of the Court.
At the present term, the appellant suggested that Judge
Page 196 U. S. 440
Baker had been succeeded in office by Judge Ira A. Abbott. And
it moved that such order be made in the premises as would be
conformable to the rules and practice of this Court. Judge Abbott
consents that the action may be revived against him as the
successor of Judge Baker, and proceed to a hearing, without further
summons or notice, upon the record as now presented to the
court.
The first question to be considered is whether it is competent
for this Court, Judge Baker having ceased to be judge, to
substitute the name of his successor, as the appellee.
In
United States v.
Boutwell, 17 Wall. 604,
84 U. S. 607,
which was a mandamus against Mr. Boutwell as Secretary of the
Treasury, it appeared that, after the case was brought to this
Court, the defendant resigned his office. Thereupon a motion was
made to substitute the name of his successor, Mr. Richardson. It
did not appear that any previous application was made to the latter
for leave to substitute his name, and he opposed the motion, which
was denied.
Mr. Justice Strong delivered the opinion of the Court,
saying:
"The office of a writ of mandamus is to compel the performance
of a duty resting upon the person to whom the writ is sent. That
duty may have originated in one way or in another. It may, as is
alleged in the present case, have arisen from the acceptance of an
office which has imposed the duty upon its incumbent. But no matter
out of what facts or relations the duty has grown, what the law
regards, and what it seeks to enforce by a writ of mandamus, is the
personal obligation of the individual to whom it addresses the
writ. If he be an officer, and the duty be an official one, still
the writ is aimed exclusively against him as a person, and he,
only, can be punished for disobedience. The writ does not reach the
office. It cannot be directed to it. It is therefore, in substance,
a personal action, and it rests upon the averred and assumed fact
that the defendant has neglected or refused to perform a personal
duty to the performance of which by him the relator has a clear
right. Hence, it is an imperative rule that, previous
Page 196 U. S. 441
to making application for a writ to command the performance of
any particular act, an express and distinct demand or request to
perform it must have been made by the relator or prosecutor upon
the defendant, and it must appear that he refused to comply with
such demand, either in direct terms or by conduct from which a
refusal can be conclusively inferred. Thus, it is the personal
default of the defendant that warrants impetration of the writ,
and, if a peremptory mandamus be awarded, the costs must fall upon
the defendant."
The court proceeded:
"It necessarily follows from this that, on the death or
retirement from office of the original defendant, the writ must
abate in the absence of any statutory provision to the contrary.
When the personal duty exists only so long he be an officer, and
the duty be an official the defendant to perform it after his power
to perform has ceased. And, if a successor in office may be
substituted, he may be mulcted in costs for the fault of his
predecessor, without any delinquency of his own. Besides, were a
demand made upon him, he might discharge the duty and render the
interposition of the court unnecessary. At all events, he is not in
privity with his predecessor; much less is he his predecessor's
personal representative. As might be expected, therefore, we find
no case in which such a substitution as is asked for now has ever
been allowed in the absence of some statute authorizing it."
That case was followed by
United States v. Chandler,
122 U.S. 643;
United States v. Lochren, 164 U.S. 701;
Warner Valley Stock Co. v. Smith, 165 U. S.
28, and
United States v. Butterworth,
169 U. S. 600,
169 U. S.
604-605. In the latter case, the Court, after referring
to prior cases, concluded its opinion in these words:
"In view of the inconvenience, of which the present case is a
striking instance, occasioned by this state of the law, it would
seem desirable that Congress should provide for the difficulty by
enacting that, in the case of suits against the heads of
departments abating by death or resignation, it should be lawful
for the successor in office to be brought into the case by
petition, or some other appropriate method. "
Page 196 U. S. 442
Later, Congress, its attention being thus called to the matter,
passed the Act of February 8, 1899, c. 121, by which it was
provided
"that no suit, action, or other proceeding lawfully commenced by
or against the head of any department or bureau or other officer of
the United States in his official capacity or in relation to the
discharge of his official duties shall abate by reason of his
death, or the expiration of his term of office, or his retirement,
or resignation, or removal from office; but in such event, the
court, on motion or supplemental petition filed at any time within
twelve months thereafter, showing a necessity for the survival
thereof to obtain a settlement of the questions involved, may allow
the same to be maintained by or against his successor in office,
and the court may make such order as shall be equitable for the
payment of costs."
30 Stat. 822.
In view of the reasons assigned, in the
Boutwell case,
for the inability of the court, in mandamus proceedings, to
substitute an existing public officer as a party in the place of
his predecessor, who had ceased to be in office, we perceive no
reason why, under the act of 1899, the successor of Judge Baker may
not be now made a party in his stead. Certainly the statute
authorizes that to be done if, in the judgment of the court, there
is a necessity for such action in order to obtain a settlement of
the legal question involved. We think such a necessity exists in
this case, and, as Judge Abbott waives any formal summons and
consents to the substitution of his name in place of that of Judge
Baker, the motion of appellant is granted, and such substitution is
ordered to be and is now made, subject, however, to the condition
that he shall not be liable for any costs prior to this date.
We come now to the merits of the case.
The act under which the Territory of New Mexico was created and
organized, approved September 9, 1850, provides that the
legislative power of the Territory of New Mexico should extend to
all rightful subjects of legislation consistent with the
Constitution of the United States. The same act
Page 196 U. S. 443
divides the territory into three judicial districts, and
requires a district court to be held in each of such districts by
one of the justices of the territorial supreme court. It also
provides:
"Each of the said district courts shall have and exercise the
same jurisdiction, in all cases arising under the Constitution and
laws of the United States, as is vested in the circuit and district
courts of the United States. . . ."
This provision was retained in the Revised Statutes of the
United States, § 1910.
The present case clearly arises under the laws of the United
States, for the action brought in the territorial district court
was expressly based on the Interstate Commerce Act of 1887 and the
Anti-Trust Act of 1890.
And the question arises upon the very face of the record whether
the territorial district court could take cognizance at all of
suits for damages authorized by those acts. We have seen that, by
section 9 of the above act of 1887, any person or persons alleged
to have been damaged by a common carrier, embraced by the
provisions of that act, may bring suit in his or their own behalf
"in any district or circuit court of the United States of competent
jurisdiction," and, by the above act of 1890, any person injured in
his business or property by any other person or corporation by
reason of anything forbidden or declared to be unlawful by that act
may sue therefor "in any circuit court of the United States in the
district in which the defendant resides or is found."
Although, by the statutes in force prior to the passage of the
Interstate Commerce (1887) and antitrust acts (1890), the
territorial district courts of New Mexico were given the same
jurisdiction in cases arising under the Constitution and laws of
the United States as is vested in the circuit and district courts
of the United States, are those acts to be construed as excepting
from the general jurisdiction of the territorial district courts
cases that may arise under them? In other words, can a suit for
damages under either of those acts be brought in any court except,
under the act of 1887, in a circuit
Page 196 U. S. 444
or district court of the United States, and, under the act of
1890, in a circuit court of the United States? Did Congress intend
that only courts of the United States, invested by the third
article of the Constitution with the judicial power of the United
States,
McAllister v. United States, 141 U.
S. 174, should have original jurisdiction of suits of
that character? The questions suggested by these inquiries were not
much discussed by counsel, and we pass them as being, in our view
of the case, not necessary to be now decided, for, if a controversy
like that raised by the plaintiff is equally cognizable by a
territorial district court, or by a circuit or district court of
the United States, it would still remain to inquire whether the
defendant company was brought before the court in which the suit
was instituted in such a way that a personal judgment could be
rendered against it?
It is firmly established that a court of justice cannot acquire
jurisdiction over the person of a defendant
"except by actual service of notice within the jurisdiction upon
him, or upon someone authorized to accept service in his behalf, or
by his waiver, by general appearance or otherwise, of the want of
due service."
Goldey v. Morning News, 156
U. S. 521;
Pennoyer v. Neff, 95 U. S.
714;
Mexican Central Railway v. Pinkney,
149 U. S. 209;
United States v. American Bell Tel. Co., 29 F. 17. This
principle is applicable to all courts.
We are of opinion that the service of summons upon Ripley, as
president, while he was passing through the territory on a railroad
train was insufficient as a personal service on the company of
which he was president. It is true that the company owned lands in
the territory, but its office, at which the meetings of its
directors were held, was in the City of New York, while the office
of its land commissioner was at Topeka, Kansas and the office of
its president was at Chicago, Illinois. The mere ownership of lands
in New Mexico, or the bringing of suits there to protect its lands
against trespasses, could not have had the effect to put the
company into that territory for the purposes of a personal action
against it, based on service
Page 196 U. S. 445
of summons upon one of its officers while passing through the
territory on a railroad train. If, by the laws of New Mexico, a
party having a cause of action against the company, based on the
acts of 1889 and 1890, could have sued out an attachment and caused
it to be levied upon its lands in the territory in order to secure
the satisfaction of any judgment he might finally obtain in such
action -- upon which point we express no opinion -- it would not
follow that a personal judgment could have been rendered against
the company. In such case, the judgment of the court could not
affect anything except the lands attached. No personal judgment
could have been rendered against the company by reason merely of
such attachment.
It is contended that the case is covered by section 450 of the
Compiled Laws of New Mexico, 1897. That section provides that,
"in suits against any corporation, summons shall be served in
that county where the principal office of the corporation is kept,
or its principal business carried on, by delivering a copy to the
president thereof, if he may be found in said county, but, if he is
absent therefrom, then the summons shall be served in like manner
in the county, on either the vice-president, secretary, treasurer,
cashier, general agent, general superintendent or stockholder, or
any agent of said corporation, within such time and under such
rules as are provided by law for the service of such process in
suits against real persons, and, if no such person can be found in
the county where the principal office of the corporation is kept,
or in the county where its principal business is carried on, to
serve such process upon, a summons may issue from either one of
such counties, directed to the sheriff of any county in this
territory where any such person may be found and served with
process. If such corporation keeps no principal office in any
county, and there is no county in which the principal business of
such corporation is carried on, then suit may be brought against it
in any county where the above-mentioned officers, or any or either
of them, may be found:
Provided, That the plaintiff
may,
Page 196 U. S. 446
in all cases, bring his action in the county where the cause of
action accrued."
Counsel for appellant substantially concedes that this statute
applies only to domestic corporations -- that is, corporations
created by, or organized under, territorial enactments. But if it
is to be assumed that these provisions could be made applicable to
a corporation created by an act of Congress, and that, for the
purposes of suit, such a corporation may be deemed a domestic
corporation in any state or territory which it might lawfully
enter, still, it is evident that the above section cannot avail the
plaintiff. The Santa Fe Railroad Company, when sued in the
territorial district court, was not an inhabitant of the district
within the meaning of the local statute; it had no principal or
other office in the territory; nor did it have an officer who
could, in a legal sense, be "found" there; nor did it, in any just
sense, carry on business in the territory. The company simply owned
lands there, and that fact was not sufficient by itself to bring
the case within the provisions of the territorial statute. This
state of the law may sometimes operate injuriously upon those who
may wish to sue the railroad company in the territorial courts. But
the situation cannot be changed by the courts. That can only be
done by legislation.
For the reasons stated the judgment of the Supreme Court of the
Territory must be
Affirmed.
