372 F.2d 573 (5th Cir. 1967), 22938, Mansell v. Saunders

Docket Nº:22938.
Citation:372 F.2d 573
Party Name:Paul L. MANSELL, Jr., Individually, and d/b/a Keys Sanitation Service, and Ronald Campbell, Appellants, v. George SAUNDERS et al., Appellees.
Case Date:February 13, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 573

372 F.2d 573 (5th Cir. 1967)

Paul L. MANSELL, Jr., Individually, and d/b/a Keys Sanitation Service, and Ronald Campbell, Appellants,

v.

George SAUNDERS et al., Appellees.

No. 22938.

United States Court of Appeals, Fifth Circuit.

February 13, 1967

George B. Foss, Jr., Fowler, white, Gillen, Humkey & Trenam, St. Petersburg, Fla., for appellants.

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James A. Dixon, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for appellees Konrath and Marathon Garbage Service, Inc.

Jeanne Heyward, Hugh Wood, George E. Bunnell, Dean & Adams, Miami, Fla., for other appellees.

Before RIVES, BELL and THORNBERRY, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellants sought injunctive relief and damages in a suit against defendants. Jurisdiction was based on the civil rights statutes. 28 U.S.C.A. § 1343(3), 42 U.S.C.A. § 1983 and 1985(3). This appeal is from an order dismissing the cause for lack of jurisdiction.

We have only the complaint before us. The sole question presented is whether it sets out a cause of action under either 42 U.S.C.A. §§ 1983 or 1985(3), or both. If so, the District Court has jurisdiction under 28 U.S.C.A. § 1343(3); otherwise, the ruling of the District Court was proper. Being of the view that the complaint states a cause of action under 42 U.S.C.A. § 1983, we reverse. 1

The complaint alleges that appellant Mansell was engaged in the garbage collection and disposal business in a part of Monroe County, Florida under the trade name Keys Sanitation Service. Appellant Campbell was employed by Mansell in this business. Mansell claims that he lost his business and Campbell thereby lost his job by reason of the circumstances to be hereinafter stated. The defendants with the exception of three are all officers of Monroe County. They are the five members of the Board of County Commissioners, the county attorney, county building inspector, county zoning director, county health officer and county health inspector. Two of the three additional defendants are Marathon Garbage Service, Inc., a competitor of Mansell and its president. Marathon succeeded to Mansell's business. The other defendant, Mr. Yankey, allegedly caused a warrant to be issued against Mansell for dumping garbage. The complaint, inter alia, charges a conspiracy but couched in language careful to limit the charge to a claim that defendants, or some of them, conspired.

The complaint must be viewed from the standpoint of notice type pleading. Cf. McGuire v. Sadler, 5 Cir., 1964, 337 F.2d 902. By way of analysis, we note that, although brought in five counts, it states only four possible causes of action. Three of these are stated in Count One. Two stem from the allegations which challenge the constitutionality on its face of an Act of the legislature of the State of Florida, to-wit: Chapter 63-1631, Laws of Fla., Special Acts, 1963, Vol. 2, Part II, pp. 2225 et seq.

This Act empowers the Board of County Commissioners of Monroe County to set up garbage districts and to award franchises to garbage collectors. It is said to violate both the Constitutions of the United States and the State

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of Florida in several respects. No federal question jurisdiction or pendent jurisdiction is alleged and we deem it unnecessary to take up jurisdictional issues which might be present had such jurisdiction been asserted. 2 Indeed, we have not been asked to do so. This line of attack was not pursued on appeal. Appellants take the position here that the gravamen of their complaint is the denial of due process and equal protection to Mansell through the notice process used in awarding the franchises in question with the result that Mansell lost his business.

We turn then to the question whether the court had jurisdiction as alleged, i.e., because the complaint stated a cause of action under the civil rights statutes. We find two such causes of action. The first depends for its efficacy on a combination of some of the allegations in Counts One, Two and Three. It is claimed that the actions of the County Commissioners taken pursuant to the legislative Act were violative of the due process and equal protection clauses of the Fourteenth Amendment. This claim is in the nature of an alleged unconstitutional application of the Act. The manner of its application will appear from what is to be said concerning the other cause of action which is based on a charge of conspiracy. However, this cause of action lies absent any claim of conspiracy and against the Commissioners alone.

The other cause of action under the civil rights statutes is based on a claimed conspiracy to deprive Mansell of his garbage business and Campbell of his job in that business through a deprivation of due process of law and equal protection of the laws toward Mansell, and derivatively toward Campbell. The discrimination which flowed from the deprivation is alleged to have been purposeful and wilful.

The factual allegations which underline the claims of unconstitutional application and the conspiracy...

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