Little v. Tanner

• Decision Date: 24 July 1913
• Docket Number: 1,706.
• Citation: 208 F. 605
• Parties: LITTLE et al. v. TANNER, Atty. Gen. of State of Washington, et al.
• Court: U.S. District Court — District of Washington

208 F. 605

LITTLE et al. v. TANNER, Atty. Gen. of State of Washington, et al.

No. 1,706.

United States District Court, E.D. Washington, Northern Division.

July 24, 1913

Cohn &amp Rosenhaupt, of Spokane, Wash., Hughes, McMicken, Dovell &amp Ramsey, of Seattle, Wash., and Stroock & Stroock and Frank T Wolcott, all of New York City, for plaintiffs.

W. V Tanner, Atty. Gen., of Olympia, Wash., J. T. S. Lyle, Asst. Atty. Gen., of Olympia, Wash., George H. Crandall, Pros. Atty., of Spokane, Wash. (D. V. Halverstadt, of Seattle, Wash., of counsel), for defendants.

Before GILBERT, Circuit Judge, and WOLVERTON and RUDKIN, District judges.

RUDKIN District Judge.

The act of the Legislature of the state of Washington, approved March 20, 1913, entitled 'An act relating to the use and furnishing of stamps, coupons, tickets, certificates, cards, or other similar device, for or with the sale of goods, wares and merchandise, and providing a penalty for violation thereof, ' provides and declares as follows:

'Section 1. Every person, firm or corporation who shall use, and every person, firm or corporation who shall furnish to any other person, firm or corporation to use, in, with or for the sale of any goods, wares or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar devices which shall entitle the purchaser receiving the same with such sale of goods, wares or merchandise to procure from any person, firm, or corporation any goods, wares, or merchandise, free of charge or for less than the retail market price thereof, upon the production of any number of said stamps, coupons, tickets, certificates, cards, or other similar devices, shall before so furnishing, selling, or using the same obtain a separate license from the auditor of each county wherein such furnishing or selling or using shall take place for each and every store or place of business in that county, owned or conducted by such person, firm or corporation from which such furnishing or selling, or in which such using, shall take place.

'Sec. 2. In order to obtain such license the person, firm, or corporation applying therefor shall pay to the county treasurer of the county for which such license is sought the sum of six thousand dollars, and upon such payment being made to the county treasurer he shall issue his receipt therefor which shall be presented to the auditor of the same county, who shall upon the presentation thereof issue to the person, firm, or corporation making such payment a license to furnish or sell, or a license to use, for one year, the stamps, coupons, tickets, certificates, cards, or other similar devices mentioned in section 1 of this act. Such license shall contain the name of the grantee thereof, the date of its issue, the date of its expiration, the town or city in which and the location at which the same shall be used, and such license shall be used at no place other than that mentioned therein.

'Sec. 3. No person, firm, or corporation shall furnish or sell to any other person, firm, or corporation to use, in, with, or for the sale of any goods, wares, or merchandise, any such stamps, coupons, tickets, certificates, cards, or other similar devices for use in any town, city or county in this state other than that in which such furnishing or selling shall take place.

'Sec. 4. Any person, firm, or corporation violating any of the provisions of this act shall be guilty of a gross misdemeanor.'

Laws of 1913, c. 134.

'Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both.'

Remington & Ballinger's Annotated Codes and Statutes of Washington, Sec. 2267.

The plaintiffs are retail merchants residing in the city of Spokane, and use in their several lines of business stamps, coupons, tickets, certificates, and other devices which entitle the purchasers of goods, wares, or merchandise to procure from the vendor, or from some other person, firm, or corporation, goods, wares, or merchandise free of cost, as a premium or discount on the amount of their cash purchases. Such methods are now very commonly resorted to by merchants for the purpose of advertising and increasing the volume of their business. The nature of the different devices used, and the manner of their redemption, is not material here, as they are all admittedly controlled by the same general principles of law. The present suit was instituted to restrain the Attorney General of the state, the prosecuting attorney of Spokane county, and the county treasurer of Spokane county from enforcing the provisions of the above act as against the plaintiffs and all other persons similarly situated. The jurisdiction of this court is invoked on the ground that the act is violative of the Constitution of the United States and particularly of the fourteenth amendment, in that it deprives the plaintiffs of their property without due process of law, and denies to them the equal protection of the law. Equity jurisdiction is invoked to avoid a multiplicity of suits, and to prevent irreparable loss and injury to the business and property of the plaintiffs. The defendants appeared specially and interposed a motion to quash on the ground that this is in effect a suit against the state, and the court is therefore without jurisdiction, followed later by a motion to dismiss on the grounds (1) that there is a misjoinder of parties plaintiff, (2) that there is a misjoinder of parties defendant, (3) that several causes of action have been improperly united, (4) that the amended bill of complaint does not state facts sufficient to warrant the court in granting any relief whatever to the plaintiffs, (5) that the plaintiffs have a plain, speedy, and adequate remedy at law, and (6) that the court has no jurisdiction over the persons of the defendants or the subject-matter of the action.

1. The motion to quash and the sixth ground of the motion to dismiss are based on the assumption that this is a suit against the state. But assuming for the present that the act is violative of the Constitution of the United States, this assumption has no foundation in law. The Supreme Court of the United States has repeatedly held that a suit against state officers to restrain the enforcement or execution of a state statute which violates the Constitution of the United States is not a suit against the state, within the intent and meaning of the eleventh amendment. Ex parte Young, 209 U.S. 123, 159, 28 Sup.Ct. 441, 454 (52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764), and cases there cited.

In the Young Case, the court said:

'The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the state to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.'

2. The objection to the joinder of the plaintiffs and the uniting of the several causes of action is apparently based on the theory that each plaintiff has a separate, distinct, and independent cause of action against the defendants, and that the several plaintiffs may not join in the same suit or unite their several causes of action in the same bill. Equity rule 38 (198 F. xxix, 115 C.C.A. xxix) provides as follows:

'When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.'

This case would seem to fall within the spirit and equity of that rule.

3. What is meant by a misjoinder of parties defendant is not apparent. If there is any objection on that score, it would seem to be on the ground that no cause of action is stated against some of the defendants, and this much has been suggested in behalf of the Attorney General of the state. It is made the duty of the Attorney General:

'(1) To appear for and represent the state before the Supreme Court in all cases in which the state is interested; * * * (4) to consult and advise the several prosecuting attorneys in matters relating to the duties of their office, and when, in his judgment, the interests of the state require, he shall attend the trial of any person accused of a crime, and assist in the prosecution. ' Remington and Ballinger's Annotated Codes and Statutes of Washington, Sec. 112.

'The prosecuting attorney of each county shall have authority, and it shall be his duty, subject to the supervisory control and direction of the Attorney General, to appear for and represent the state and the county of which he is prosecuting attorney, in all criminal and civil actions and proceedings in such county in which the state or such

...