MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co.

GILBERT, Circuit Judge, after stating the case as above, delivered the' opinion of the court. We think that the cause was improperly removed to the circuit court. Although the prayer of the complaint seeks relief expressed in varying form, as against the Amalgamated Copper Company, the cause of suit is substantially one. It is the question of the right of the Amalgamated Copper Company to control the property, business, and corporate stock of the Boston & Montana Company in the manner which is set forth in the bill. The appellant, as plaintiff in the suit, is interested in no corporation other than the Boston & Montana Company. He challenges the right of the Amalgamated Copper Company to interfere with the business affairs of his corporation and to take over its property. The illegality of this interference, as alleged in the bill, is predicated upon different grounds, but the sole aim and purpose of the suit is to dissolve the combination which has been formed between the two corporations, and to protect the interest of the appellant as a stockholder of the Boston & Montana Company. It is evident at a glance that the Boston & Montana Company is a necessary party to every phase of the controversy, unless it be that the relief prayed for in the fifth subdivision of the prayer presents matter in which it has no concern. It is true that in a portion of the- relief which is there sought the prayer goes further than the averments “of the bill, and asks that the Amalgamated Copper Company be debarred from doing business within the state of Montana. This prayer for relief does not create a separate controversy. The suit is not brought to dissolve the Amalgamated Copper Company or to enjoin it from doing business in- the state of Montana. Where the relief sought against one of several defendants is merely incidental to the principal purpose of the suit, the fact that such incidental relief pertains to one only of the defendants does not make it a separable .controversy so as to give him the right of removal. Safe-Deposit Co. v. Huntington, 117 U. S. 280 , 6 Sup. Ct. 733, 29 L. Ed. 898 ; Graves v. Corbin, 132 *101 U. S. 571 , 10 Sup. Ct. 196, 33 L. Ed. 462 ; Torrence v. Shedd, 144 U. S. 527 , 12 Sup. Ct. 726, 36 L. Ed. 528 ; Bellaire v. Railroad Co., 146 U. S. 117 , 13 Sup. Ct. 16, 36 L. Ed. 910 ; Brown v. Trousdale, 138 U. S. 389 , 11 Sup. Ct. 308, 34 L. Ed. 987 ; Mayor, etc., of New York v. New Jersey Steamboat Transp. Co. (C. C.) 24 Fed. 817 ; City of Le Mars v. Iowa Falls & S. C. R. Co. (C. C.) 48 Fed. 661 ; Ames v. Railroad Co. (C. C.) 39 Fed. 881 . The prayer that the Amalgamated Copper Company be declared a trust and a monopoly is only incidental to the other relief which is prayed for in connection therewith, namely, that it be enjoined from controlling the Boston & Montana Company; and the same was evidently true, in the mind of the pleader, of the further prayer that the Amalgamated Copper Company be enjoined from doing business in the state of Montana. Not only is the relief so sought plainly incidental to the main purpose of the suit, but the bill contains no averment upon which such relief could be obtained. No fact is alleged to show a right in the appellant to demand such an injunction. He exhibits, therefore, no controversy as to his right to such relief. In order to show the existence of a controversy, facts must be alleged upon which the court can see that a question is presented for its determination. The court will not search the record for a mere fanciful controversy. The controversy must be real, and must be apparent upon the face of the bill. The appellant sues in no official capacity, but as a private citizen for the protection of his individual rights. He had no authority to sue in the interests of the public, or to obtain an injunction against the transaction of business by the Amalgamated Copper Company in the state of Montana, or to obtain any relief save such as affected his property rights as a stockholder in the Boston & Montana Company. Thomp. Corp., §§ 502, 1852,_ 7944- It is suggested that the real controversy in this case is between the two corporations, and that the appellant is but a formal party, since the suit is one to enforce the right of the Boston & Montana Company. It is clear, however, from the allegations of the bill, that the Boston & Montana Company is not a party in the same interest with the appellant. If it be true that it has conspired with the Amalgamated Copper Company to do the illegal acts which are charged, both the corporations are antagonistic to the appellant, and both are necessary parties defendant to the suit. In a similar case the supreme court said': “Grayson Is not suing for the Memphis & Charleston Company, but for himself. It is true a decree in his favor may be for the advantage of the Memphis & Charleston Company, but he does not represent the company in its corporate capacity, and has no authority to do so. As a stockholder he seeks protection from the illegal acts of his own company as well as the other.” Railroad Co. v. Grayson, 119 U. S. 240, 244 , 7 Sup. Ct. 190, 30 L. Ed. 382 . Of similar import is Railroad Co. v. Mills, 113 U. S. 249 , 5 Sup. Ct. 456, 28 L. Ed. 949 . The decree will be reversed, and the cause remanded to the circuit court, with instructions to remand the same to the state court, whence it was removed.