OCTOB? TERM? Statement o! ?he ?09 U. & ? p?z,? THE STATE OF NEBRASKA. PETITION FOR ?rRIT OF MANDAMUB. No. IA, OP4in? .441Md Jhreh 17.1908,--D?idod April 20.19?. Mandamus will not Ue to correct the decision of the Circuit Court that a party to the record--in tl?s case a State--is not an ingle party to the euit, and that & separable and removable controversy exi?te. Such a deci=ion is witMn the jurisdiction and judJclal discretion of the court and can be reviewed by appeal after final jud?nent in the case. The mere preeenco on the record of a State as a party plalnt? will not de- feat the jur?dietlen o! the Federal court when it appear= that the State has no real interest in the controversy; and it is the duty of the Circuit Court to ascertain whether the State is an actual party by consideration of the nature of the suit and not By reference to the nominal patti.. The Circuit Court havin? held that the State of Nebraska was not an actual and neec?ary pa?ty plsintiff to a suit, Brought in it? name by the At- torney (?enerel a?ainst a non-resident railroad company to enjoin it from char?ing more than the rates Led in a statute of the State and from disobeyin? o?lere of the State Railway Commission, refused to remand the case; as .?uch decision may clearly have been correct, was within the jurisdiction of the Circuit Court, and involved no abuse of judicial discretion, this court will not review the decision on petition for man- damus. ON June 15, 1907, the State of Nebraska; Will[am T. Thomp- son, Attorney General; Nebraska State Railway Commission; Hudson J. Winnett, J. A. Williams and Henry T. Clarko, Jr., as members of the Nebraska State Railway Commission of the Stato of Nebraska brought suit a?ainst the Chicago, Bur- lington and Quincy Railway Company to enjoin tlmt company from charging moro for the transportation of froight and passengers within the State o? Nebraska than t?e rates fixed for such transportation in certain acts of the legislaturo of the State of Nebraska, and also from disobeying the orders of the Nebraska State Railway Commission, and from concea]- ing from that commission the condition of it? business, and from maldng any unlawful discHmln,,t, ibn in violation of the state statute.
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