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602, 603. Moreover a part of the company's roadbed is appropriated mainly to a special use, even if it be supposed that the side track would be available incidentally for other things than to run cars to and from the elevator. Now it is true that railroads can be required to fulfil the purposes for which they are chartered and to do what is reasonably necessary to serve the public in the way in which they undertake to serve it, without compensation for the performance of some part of their duties that does not pay. Missouri Pacific Railway Co. v. Kansas, 216 U. S. 262. It also is true that the States have power to modify and cut down property rights to a certain limited extent without compensation, for public purposes, as a necessary incident of government—the power commonly called the police power. But railroads after all are property protected by the Constitution, and there are constitutional limits to what can be required of their owners under either the police power or any other ostensible justification for taking such property away.
Thus it is at least open to question whether a railroad company could be required to deliver cattle at another than its own stock yard at the end of the transit, or cars elsewhere than at its own terminus, without extra charge, if it furnished reasonable accommodations. Louisville & Nashville R. R. Co. v. Central Stock Yards Co., 212 U.S. 132, 144. Central Stock Yards Co. v. Louisville & Nashville R. R. Co., 192 U. S. 568, 570. Covington Stock Yards Co. v. Keith, 139 U. S. 128. So far as we see a grain elevator stands in no stronger position than a stock yard. If, as intimated, the elevators with which the Missouri Pacific connects charge too much and wrong the farmers, there may be other remedies; but manifestly the apprehension expressed by the Supreme Court of Nebraska, that the company, unless checked, will have power to establish a monopoly, is not to be met merely by building another ele vator--the physical limits of that kind of competition are too easily reached. But if we assume that circumstances might make it reasonable to compel a railroad to deliver and receive
grain elsewhere than at its own elevators, or those that it had made its own by contract, the circumstances must be exceptional when it would be constitutional to throw the extra charge of reduplicating already physically adequate accommodations upon the road.
This statute has no reference to special circumstances. It is universal in terms. If we were to take it literally, it makes the demand of the elevator company conclusive, without regard to special needs and, possibly, without regard to place. It is true that in the first of the present cases the Supreme Court of Nebraska discussed the circumstances and expressed the opinion that the demand was reasonable and that building the side track would not cast an undue burden upon the road; and, in the second, it somewhat less definitely indicated a similar opinion. So it may be, although it hardly seems possible, that the sweeping words of the statute would be construed as, by implication, confining their requirements to reasonable de mands. On the face of it the statute seems to require the railroad to pay for side tracks, whether reasonable or not-or, if another form of expression be preferred, to declare that a demand for a side track to an elevator anywhere is reasonable, and that the railroads must pay. Clearly no such obligation is incident to their public duty, and to impose it goes beyond the limit of the police power.
But if the statute is to be stretched, or rather shrunk, to such demands as ultimately may be held reasonable by the state court, still it requires too much. Why should the railroads pay for what, after all, are private connections? We see no reason. And, moreover, even on this strained construction, they refrain from paying at the peril of a fine, if they turn out. wrong in their guess that in the particular case the court will hold the demand not authorized by the act. If the statute makes the mere demand conclusive, it plainly cannot be upheld. If it requires a side track only when the demand is reasonable, then the railroad ought, at least, to be allowed a hearing in advance to decide whether the demand is within the
act. Sometimes when summary action is necessary the property owner's rights are preserved by leaving all questions open in a subsequent suit. North American Storage Co. v. Chicago, 211 U. S. 306. But in such cases the risk is thrown on the destroyer of property. In this case there is no emergency, yet at the best the owner of the property, if it has any remedy at all, acts at its risk, not merely of being compelled to pay both the expense of building and the costs of suit, but also of incurring a fine of at least five hundred dollars for its offense in awaiting the result of a hearing. See Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418. An earlier statute authorizing the State Board of Transportation after hearing to require the railroad to permit the erection of an elevator upon its roadbed already has been held bed. Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403. See also Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U. S. 91, 99. We are of opinion that this statute is unconstitutional in its application to the present cases, because it does not provide indemnity for what it requires. We leave other questions on one side, and do not intend by anything that we have said to prejudice a later amendment providing for a preliminary hearing and compensation, which is said to have been passed in 1907. (See Laws of 1907, c. 89, p. 309.)
MR. JUSTICE HARLAN and MR. JUSTICE MCKENNA dissent.
Rudent for Plaintiff in Error.
SOUTHEAN RAILWAY COMPANY V. MILLER.
ERROR TO DOURT OF APPEALS OF THE STATE OF GEORGIA.
No. 122. Argued March o, 1910.-Decided April 4, 1910.
For the purp**** ci dezertaining the removability of a cause, the case
must be decid to be such as the plaintiff has made it, in good faith, in his pla*: and if a plaintiff in a suit for personal injuries joined with the forma corporation one or more of its employes residents of plaintiff's State as defendants, and the state court holds that the joinder is we improper, the cause is not separable and cannot be removed into the Federal court. Alabama & Great Southern R. R. v.
Thompsi, OU S. 205; Railway Co. v. Bohon, 200 U. S. 221. ifter & heaven is!. 711removable and moved into the Federal court
has beer vointarily dismissed without action on the merits, the case is re in a large and plaintiff may begin it again in any court of competent jurisdiction, including the state court from which the
first case %&- Tomoved into the Circuit Court. 59 S. E. Res!'!), whirmed.
The facts are stated in the opinion.
Mr. John Sirickiand, with whom Mr. Alfred P. Thom was on the brif, for plaintiff in error:
As to be jut diction: Whether or not a case is made in the state court, kur removal, is a Federal question. Gordon v. Limgesi, 18 Pet. 37; B. & 0. Ry. Co. v. Koontz, 104 U. S. 5; froidey v. 31orning News, 156 U. S. 523; B. C. R. & N. Ry. v. Dunn, 122 U. S. 517; Traction Co. v. Mining Co., 196 U. S. 2:5; Kun:a37204 R. R. v. Daugherty, 138 U. S. 298; Stone v. South Carolina, 117 U. S. 430.
Though a case go to the state court of review a second time, the question will be passed on when carried to this court, if properly preserved. Stanley v. Schwally, 162 U. S. 255; Re Blake, 175 U. S. 118. Whether or not the state court has jurisdiction to try a
Argument for Plaintiff in Error.
case once removed into the Circuit Court of the United States and again sued in the state court, is a Federal question. Kern v. Huidekoper, 103 U. S. 485; National S. Co. v. Tugman, 106 U. S. 118.
The fact that the party, after removal, has contested the case in the state court does not, after judgment against him, constitute a waiver as to jurisdiction. Kern v. Huidekoper, 103 U. S. 485; National S. Co. v. Tugman, 106 U. S. 118; Goldey v. Morning News, 156 U. S. 517.
The petition filed by plaintiff in the Court of Hall County, made a separable controversy on its face and was removable.
A joint action cannot be sustained against the master and the servant where the master is sought to be held liable solely for the acts of the servant without the concurrence of the master. Warar v. Railroad Co., 72 Fed. Rep. 637; Hakill v. Railroad Co., 72 Fed. Rep. 745; Beuttel v. Railroad Co., 26 Fed. Rep. 50; Ferguson v. Railroad Co., 63 Fed. Rep. 177; Hartshorn v. Railroad Co., 77 Fed. Rep. 9; Helms v. N. P. Ry., 105 Fed. Rep. 449; Ala. So. Ry. Co. v. Thompson, 200 U. S. 206; Charman v. Railway Co., 105 Fed. Rep. 449; Riser v. Railway Co., 116 Fed. Rep. 215.
The acts of negligence charged in plaintiff's petition, against defendants who were servants of the railway company, and the co-employés of plaintiff, were acts of nonfeasance, only, and for such acts the master only is liable to the injured party, the servants being in turn liable to the master. Blackstone, 430; 1 Am. & Eng. Ency. of Law, 2d ed., 1131; 20 Am. & Eng. Ency. of Law, 2d ed., 52; Brice v. Southern Ry. Co., 125 Fed. Rep. 959; Code of Georgia, 1895, 88 3029, 3817, 3915, 4940, 5872, 2321; Kimbrough v. Boswell, 119 Georgia, 203; Reid v. Humber, 49 Georgia, 208; McCalla v. Shaw, 72 Georgia, 458; Hayv. Collins, 118 Georgia, 248; Cor v. Strickland, 120 Georgia, 104; Burch v. Caden Stone Co., 93 Fed. Rep. 181; Shaffer v. Union Brick Co., 128 Fed. Rep. 97; Campbell v. So. Ry. C'0., 16 Am. Rep. 512; ('ent. of Georgia Ry. v. Brown, 113 Georgia, 414; Pomroy on Ckde Remedies,