293 F.2d 585 (7th Cir. 1961), 13260, Adams v. City of Park Ridge
|Citation:||293 F.2d 585|
|Party Name:||Dr. Wright R. ADAMS, Dr. George K. Fenn, Dr. Louis N. Katz, Dr. Oglesby Paul, Dr. Geza de Takats, Benjamin H. Weisbrod, and Chicago Heart Association, an Illinois not-for-profit corporation, Plaintiffs-Appellants. v. CITY OF PARK RIDGE, an Illinois municipal corporation, Raymond Hollis, Mayor, H. D. Morrow, City Treasurer, Paul S. Badger, City Cler|
|Case Date:||August 21, 1961|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Rehearing Denied Sept. 19, 1961.
Allen D. Holloway, William S. Jacob, John J . Yowell, Alvin V. Nygren, G. Kent Yowell, Chicago, Ill., for appellants.
Warren L. Swanson, Herbert R. Stoffels, Chicago, Ill., for appellees.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit judges.
SCHNACKENBERG, Circuit Judge.
Plaintiffs, Dr. Wright R. Adams, Dr. George K. Fenn, Dr. Louis N. Katz, Dr. Oglesby Paul, Dr. Geza de Takats, Benjamin H. Weisbrod, and Chicago Heart Association, an Illinois not-for-profit corporation, have appealed from an order of the district court dismissing for want of jurisdiction their action against The City of Park Ridge, an Illinois municipal corporation; Raymond Hollis, Mayor; H. D. Morrow, City Treasurer; Paul S. Badger, City Clerk; Edgar C. Lundberg, Police Magistrate; Charles F. Christensen, Police Chief; Norman A. Brown, Fire Chief; James L. Galloway, City Manager; James M. Shedden, L. R. Chase, Charles V. Kelly, Jr., Norman R. Bond, Donald G. Rowley, James D. Cole, Lucille Oberly, Edward A. Mosher, Donald E. Goll, Donald B. Dickson, Robert L. Littick, and Russel J. Gustafson, aldermen and members of the city council of Park Ridge, Illinois. The case was tried without a jury, upon evidence submitted and a stipulation of facts. 1
Plaintiffs assert that this civil action is authorized by 42 U.S .C.A. § 1983, which provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. R.S. § 1979.'
They also rely upon 28 U.S.C.A. § 1343(3) 2 and § 2201. 3
The individual plaintiffs sue as representatives of the numerous members of the corporate plaintiff Association.
Joined as defendants are the City of Park Ridge, Illinois, and its city officials and members of its city council.
Plaintiffs pray for a permanent injunction enjoining the enforcement of an ordinance of the city against plaintiffs and representatives and volunteer workers acting on behalf of plaintiffs and that the court by its judgment find that said ordinance is unconstitutional and void as applied to plaintiffs, as an unauthorized, discriminatory and illegal exercise of police power, under the constitution of
the United States, and that a judgment be entered declaratory of the rights of plaintiffs and their agents to solicit funds in said city, and for general relief.
1. Defendants contend that a municipal corporation is not subject to suit under § 1983. They point out that the remaining defendants are joined only in their official capacities and that they have been dismissed from this action as individuals, that there is no evidence relevant to them as individuals and that certain present officials were substituted in lieu of their predecessors pendente lite.
We are aware that it was said in Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492, that a city is not within the ambit of § 1983. 4 However, in that case only damages were sought and were held recoverable from the individual defendants, who were policy officers of a city. The facts in Monroe v. Pape suggests several inherent reasons for excluding municipalities from liability for damages, such as unauthorized misconduct of the officers, lack of power of city to indemnify plaintiffs for such misconduct, and a city's governmental immunity in the exercise of its police powers, from liability for injuries inflicted by policemen in the performance of their duties. However, the case at bar is not an action for damages for torts committed. It looks to the future only and asks for a declaratory judgment and an injunction against invasions of plaintiffs' federal constitutional rights contemplated by a municipality's ordinance. None of the reasons which support a city's immunity from an action for damages for tortious injuries already inflicted by its officers, agents or servants applies to this case. No reason is apparent why a city and its officials should not be restrained from prospectively violating plaintiffs' constitutional rights pursuant to its own legislative enactment, and an injunction not be granted as provided in § 1983.
In the case at bar, plaintiffs are challenging the constitutionality of a municipal ordinance under the due process and equal protection clauses of the fourteenth amendment to the constitution of the United States Cases supporting our conclusion that a city can be restrained in the circumstances in this case include Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776, vacating D.C., 124 F.Supp. 290 and 5 Cir., 223 F.2d 93; City of Greensboro v. Simkins, 4 Cir., 246 F.2d 425; Dawson v. Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350 U.S. 877, 76 S . Ct. 133, 100 L.Ed. 774; W. F. Derrington and Harris County, Texas v. Plummer, 5 Cir., 240 F.2d 922, certiorari denied, 353 U.S. 924, 77 S.Ct. 680, 1 L.Ed.2d 719. Cf. Dept. of Conservation etc. v. Tate, 4 Cir., 231 F.2d 615, certiorari denied 352 U.S. 838, 77 S.Ct. 58, 1 L.Ed.2d 56.
We, therefore, hold that in this case an action for injunction, as well as for declaratory judgment, is a proper remedy.
2. Defendants argue that the term 'other person', as used in § 1983, does not include a corporation. For our present purpose, we limit our inquiry to whether the words 'other person' include a corporation which seeks to preserve its rights under the due process and equal protection clauses of section 1 of the fourteenth amendment, which are relied upon by the corporate plaintiff here. We hold in the affirmative. Grosjean v. American Press Company, 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660. Cf. Wheeling Steel Corp. v. Glander 337 U.S. 562, 574-576, 69 S.Ct. 1291, 93 L.Ed. 1544.
Inapplicable are cases such as Hauge v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, relied upon by defendants, which involved the privileges or immunities of a citizen of the United States under section 1 of the fourteenth amendment, to be secure against state infringement. Only natural persons are entitled to such privileges and...
To continue readingFREE SIGN UP