This petition for a writ of mandamus, filed in this Court by leave, prays that the federal court for Southern Texas and Thomas M. Kennerly, judge thereof, be commanded to take jurisdiction, on a petition for removal, of a suit instituted in a state court of Texas by Tyrrell-Garth Investment Company. The petitioners are the defendants in that suit. Two of them, Baldwin and Thompson, are the trustees in bankruptcy of the Missouri Pacific Railroad system and are operating it. They were appointed by orders of the federal court for Eastern Missouri entered in proceedings for reorganization under section 77 of the Bankruptcy Act as amended March 3, 1933, c. 204, § 1, 47 Stat. 1474 (11 USCA § 205). The other two petitioners are Texas corporations-Houston North Shore Railway Company and Beaumont, Sour Lake & Western Railway Company and are parts of the Missouri Pacific system.
The federal court entered an order denying the petition for removed and returned the papers to the petitioners, on the ground that it appears from the petition for removal that the suit is not one in which it is sought to hold the trustees 'responsible in their own person and/or property but only in their representative capacity. See Ruff v. Gay (D.C.) 3 F.Supp. 264; Id. (C.C.A.) 67 F.(2d) 684.' The trustees claim that they are entitled to a writ of mandamus, because the suit in the state court is removable under section 33 of the Judicial Code as amended by Act of August 23, 1916, c. 399, 39 Stat. 532 (28 USCA § 76), being an action against officers of a court 'of the United States on account of acts done under color of their office and in performance of their duties as such officers.'
The petition for mandamus alleges that among the properties of which the trustees took possession is an interurban railway in Texas, owned by the Houston North Shore Railway and leased to the Beaumont, Sour Lake & Western Railway; that they had taken possession of this property prior to the institution of the suit in the state court; and that the necessary effect of the institution and prosecution of the suit in the state court 'is and will be to materially interfere with and obstruct the jurisdiction and powers of the federal court for eastern Missouri, with respect to the properties and assets of said debtors, the Beaumont, Sour Lake & Western Railway Company and Houston North Shore Railway Company, and each of them.'
The petition for mandamus shows further, by reference to the complaint of the investment company, that a part of the interurban railway's right of way had been acquired by mesne conveyance from the predecessor in title of the investment company; that, after the trustees took possession of this interurban railway, the investment company brought the suit in the state court in which it claims that it is the owner of the fee of a part of the land over which the railway extends, and that the easement of right of way has been forfeited by failure of the Texas corporations and the trustees to operate trains thereon in accordance with the conditions contained in a contract which accompanied the grant of the right of way, and prayed as follows: That the deeds conveying the right of way be canceled; that they be 'annulled and held for naught as an existing cloud upon plaintiff's title to the lands and properties therein conveyed'; that the two railways and the trustees be enjoined from making further use of the lands for the operation of the interurban railway or otherwise; and that the complainant recover from Houston North Shore Railway and the trustees 'in their capacity as trustees' damages in the sum of $150,000.
We are of opinion that the trustees may be entitled to have their controversy with the investment company adjudicated in the federal court, but are not entitled to the remedy of mandamus, because, to secure adjudication in the federal court of their rights and duties, they could have applied, and still can apply so far as now appears, either in the original bankruptcy proceeding, or by an ancillary bill in Texas, for an injunction to restrain the investment company from prosecuting its suit in the state court.