Caledonian Coal Co. v. Baker

after making the foregoing statement, delivered the opinion of the court.

At the present • term the appellant suggested • that Judge

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 , 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

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 ex rel. &c. v. Butterworth, 169 U. S. 600 , 604, 605. In the latter case the court, after referring to prior cases, concluded its opinion in these words: “In view of the ^convenience,-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.”

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 tó 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 óf appellant is granted, and such substitution is ordered t<5 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

The present case clearly arises under the laws of the United States; for, the áetion 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 beeen 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 Anti Trust 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 éxcepting 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

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 some one 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. 518 , 521; Pennoyer v. Neff, 95 U. S. 714 ; Mexican Central Railway v. Pinkney, 149 U. S. 194 , 209; United States v. American Bell Tel. Co., 29 Fed. Rep. 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

It is contended that the case is covered by section 450 of the Compiled Laws of New Mexico, 1897. .Thatsection 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 iri 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,

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 Fé 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.