McGuire v. Amrein, 5527

• Decision Date: 29 November 1951
• Docket Number: No. 5527,5592.,5527
• Citation: 101 F. Supp. 414
• Parties: McGUIRE et al. v. AMREIN et al. BRATBURD et al. v. DAWSON et al.
• Court: U.S. District Court — District of Maryland

101 F. Supp. 414

McGUIRE et al. v. AMREIN et al.

BRATBURD et al. v. DAWSON et al.

Nos. 5527, 5592.

United States District Court D. Maryland, Civil Division.

November 29, 1951.

COPYRIGHT MATERIAL OMITTED No. 5527.

Eldridge Hood Young, Baltimore, Md., for plaintiff McGuire.

Wilfred T. McQuaid, Baltimore, Md., for plaintiff Sody.

Schonfield & Schonfield, Eugene Schonfield, Wendell D. Allen, all of Baltimore, Md., for plaintiff Hess.

Maurice T. Siegel, Baltimore, Md., for plaintiff Silerman.

Alan H. Murrell, Baltimore, Md., for plaintiff Manger.

William Greenfeld, Baltimore, Md., for plaintiff Morgan.

Ellis Levin, Baltimore, Md., for plaintiff Major.

Hall Hammond, Atty. Gen., of Md., Kenneth C. Proctor, Asst. Atty. Gen., of Md., Anselm Sodaro, State's Atty., for Baltimore City, Wm. C. Rogers, Jr., Asst. State's Atty., for Baltimore City, of Baltimore, Md., for defendants.

No. 5592.

Paul D. Taggart, William R. Richards, Silver Springs, Md., for plaintiffs.

Hall Hammond, Atty. Gen., of Md., Kenneth C. Proctor, Asst. Atty. Gen., of Md., for defendants.

CHESNUT, District Judge.

In these two civil actions tried together the plaintiffs seek an injunction to prohibit the defendants from divulging the contents of telephone conversations learned by them by the tapping of telephone wires of the plaintiffs. The defendants are police officers of Baltimore City and of Montgomery County, Maryland, respectively. The complaints allege in substance that the police officers intercepted the telephone messages and have recordings thereof, and propose to use them as evidence in criminal prosecutions against the plaintiffs in the respective cases now pending in the Criminal Court of Baltimore and in the Circuit Court for Montgomery County, Maryland, respectively, where they have been indicted for violation of the gambling laws of Maryland and conspiracy to violate the same. The answers of the defendants in both cases admit the interception of telephone conversations and the possession of recordings thereof and intention to use them in the criminal cases; but the answers deny the jurisdiction of this federal court to grant the relief prayed for. Counsel for the defendants also contend that even if the jurisdiction exists the situation does not warrant the exercise of the authority to issue an injunction because no property rights are involved and because in practical effect the issuance of the injunction would constitute an interference with State Court criminal jurisdiction contrary to the provisions of 28 U.S.C.A. § 2283 which provides — "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

At the outset it is necessary to examine the jurisdictional question. It is well known that federal courts have only limited jurisdiction and have no authority to adjudicate cases other than those authorized by the federal Constitution, implemented, with respect to courts other than the Supreme Court of the United States, by an Act of Congress. This district court, therefore, does not have jurisdiction unless it can be found that it has been affirmatively granted by Congress and is expressed in some federal statute. The plaintiffs contend and the defendants deny that such an affirmative grant is to be found in the present Judicial Code, 28 U.S.C.A. §§ 1331 and 1343(3). Section 1331 provides — "The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States". The law of the United States relied on by the plaintiffs is the Federal Communications Act of 1934, 47 U.S.C.A. § 151 et seq., in which section 605 provides — "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person". And section 501 of 47 U.S.C.A. provides the penalty for violation of section 605 to be a fine of not more than $10,000 or imprisonment of not more than 2 years or both. The statute does not expressly forbid the use of such intercepted messages as evidence in the federal courts but it has been determined by the Supreme Court of the United States that that is its legal effect. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Nardone v. United States, 308 U.S. 338,¹ 60 S.Ct. 266, 84 L.Ed. 307. But the Maryland Court of Appeals has held in three recent cases that the federal statute does not have the effect of forbidding the use of such intercepted messages as evidence in criminal cases in Maryland courts. Hitzelberger v. State, 174 Md. 152, 197 A. 605; Rowan v. State, 175 Md. 547, 3 A.2d 753; Leon v. State, 180 Md. 279, 23 A.2d 706.

28 U.S.C.A. § 1331 confers jurisdiction in the class of cases commonly referred to as federal questions; and a case involves a federal question when the construction and effect of some applicable federal statute is involved, because in that case it may be said to arise "under the Constitution, laws or treaties of the United States". We are not here concerned with the Constitution or a treaty but only with the particular federal statute which prohibits the tapping of telephones and disclosing the contents of messages and which the Supreme Court has held applies not only to interstate telephones but also to intrastate telephones where the latter are used in connection with the former. Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. The violation of the statute does not present a constitutional question because in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, the Supreme Court held that the tapping of telephone wires and the consequent overhearing of telephone messages and subsequent evidence thereof given in a criminal proceeding, did not constitute an unreasonable search and seizure or invasion of the defendant's privacy under the 4th Amendment to the Federal Constitution; and the receipt of such overheard messages was admissible in evidence under the principles of the common law. It was subsequent to that decision that Congress passed the Federal Communications Act of 1934.

The jurisdiction given to federal trial courts by section 1331 in a case involving a federal question was first enacted by Congress in 1875, prior to which time such questions were tried originally in the State courts; but when such jurisdiction was first given to the federal courts it was on the condition that there should be an amount in controversy which at that time was $500 but subsequently has been increased first to $2,000 and now to $3,000. The requirement with regard to the amount in controversy is obviously of great importance because otherwise the jurisdiction of the federal courts would be almost as wide as the whole field of federal statutory law. It is therefore very clear that the jurisdiction of federal questions as given by section 1331 does not exist unless there is an ascertainable amount in controversy in excess of $3,000 exclusive of interest and costs. Unless "the right or thing in controversy can in some fashion be translated into terms of money, there is no pecuniary amount in controversy". If it is impossible to assign a pecuniary value to the thing in controversy, jurisdiction does not exist. Rose on Federal Jurisdiction, 5th Ed. s. 211, p. 214; Ohlinger's Federal Practice, Rev.Ed. Vol. 1A, p. 36. In numerous cases involving suits for an injunction, there has been difficulty in determining what constitutes the amount in controversy even where the case otherwise clearly deals with property rights; but in the instant case the injunction is not sought in relation to property rights at all. In my opinion it is impossible to find that there is any pecuniary amount at all in controversy in this case. Counsel for the plaintiffs have sought in a number of ways to show the existence of an amount in controversy exceeding $3,000. They point out that the amount of bail required from some of the plaintiffs in this case, who are defendants in the criminal cases, exceeds $3,000; and they also point out that in the last year or so there have been many convictions in the Criminal Court of Baltimore for violation of the gambling laws and that frequently fines of $1,000 have been imposed. They apparently intend to suggest that if each of the seven plaintiffs in one of the complaints is convicted and fined $1,000, the amount that will have resulted is more than $3,000. But if this point were otherwise material, it is well established that the pecuniary values in controversy with respect to several plaintiffs separately may not be aggregated for the purpose of showing an amount to exceed $3,000. It is also pointed out that the maximum penalty for violation of the Maryland gambling laws is a fine of $1,000 and possible imprisonment for one year, and for conspiracy the maximum fine would be $2,000 and some imprisonment. But I consider such evidence or arguments quite immaterial in this case and entirely insufficient to show that the controversy in this case has an assignable pecuniary value. Counsel for the plaintiffs have been unable to call to my attention any judicial decision which would support such a contention. Cross v. Burke, 146 U.S. 82, 13 S.Ct. 22, 36 L.Ed. 896; Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85, are seemingly to the contrary. See also Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 594, 83 L.Ed. 1423.

Plaintiffs also assert and the defendants deny jurisdiction of this court under 28 U.S.C.A. § 1343, which reads — "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * * * "(3)...