Atchison, T. & SF Ry. Co. v. La Prade

• Decision Date: 08 March 1933
• Docket Number: No. 195,196.,195
• Citation: 2 F. Supp. 855
• Parties: ATCHISON, T. & S. F. RY. CO. v. LA PRADE, Atty. Gen. SOUTHERN PAC. CO. v. SAME.
• Court: U.S. District Court — District of Arizona

2 F. Supp. 855

ATCHISON, T. & S. F. RY. CO. v. LA PRADE, Atty. Gen.

SOUTHERN PAC. CO. v. SAME.

Nos. 195, 196.

District Court, D. Arizona.

March 8, 1933.

L. H. Chalmers, H. M. Fennemore, and Thomas G. Nairn, all of Phœnix, Ariz., and Robert Brennan, of Los Angeles, Cal. (E. E. McInnis and H. W. Davis, both of Chicago, Ill., of counsel), for plaintiff Atchison, T. & S. F. Ry. Co.

Alex B. Baker and Louis B. Whitney, both of Phœnix, Ariz. (Guy V. Shoup and Henly C. Booth, both of San Francisco, Cal., of counsel), for plaintiff Southern Pac. Co. K. Berry Peterson, Atty. Gen. of Arizona, Charles L. Strouss, Asst. Atty. Gen. of Arizona, and Donald R. Richberg, Sp. Asst. Atty. Gen. of Illinois, for defendant.

Before JACOBS and ST. SURE, District Judges, and WILBUR, Circuit Judge

JACOBS, District Judge.

These suits were instituted in the Phœnix division of the District Court of the United States, district of Arizona. They seek to enjoin the Attorney General of the state from enforcing what is styled as the Arizona Train Limit Law, passed and approved May 16, 1912, which prohibits any railroad in Arizona from operating passenger trains consisting of more than fourteen cars, and freight trains of more than seventy cars, exclusive of caboose, over its road or any portion thereof, and fixes a penalty of not less than $100 or more than $1,000 fine for each offense. The statute also provides: "And such penalty shall be recovered, and suits therefor brought by the attorney general, or under his direction, in the name of the state of Arizona, in any county through which such railway may be run or operated. * * *" The Rev. Code of Ariz. 1928, § 647.

The suits were consolidated, as they each involve the same issues and seek the same relief, and, being suits that fall within the provisions of section 266 of the Judicial Code (28 USCA § 380), the trial judge called to his assistance Hon. Curtis D. Wilbur, United States Circuit Judge, and Hon. A. F. St. Sure, United States District Judge of the Ninth circuit, at San Francisco, Cal.

The defendant answered and filed motions to dismiss based on jurisdictional grounds, which were denied by the court on October 1, 1929. See Southern Pac. Co. v. Peterson (D. C.) 43 F.(2d) 198. Thereupon, a master was appointed to take the evidence, certify and report the same, together with his findings of fact and conclusions of law, which report was filed on the 29th day of July, 1932.

Thereafter, and in due time, the defendant filed exceptions to the master's findings and conclusions, and also a motion to suppress the report, and stipulated that the evidence certified by the master and included in his report might be considered by the court in deciding the issues involved.

The cases were set down for final hearing on February 8, 1933, at San Francisco, Cal., by stipulation of all parties.

The term of office of the defendant K. Berry Peterson having terminated on January 3, 1933, and Mr. Arthur T. La Prade having been elected Attorney General of the state of Arizona, and qualified as such, the plaintiffs, in due time and after notice, as provided in subdivision (c) of section 780, title 28, USCA, moved the court to substitute Mr. La Prade in the place and stead of the defendant Peterson; the motion being noticed on the date of the final hearing.

The defendant La Prade made special appearance for the purpose of objecting to the substitution, and urged, as grounds of his objection, that the suits being against the defendant Peterson individually, when his term of office expired, the questions involved as to him became moot; that, there being no pleadings charging him with having threatened to enforce the Arizona Train Limit Law, there was no cause of action stated against him; that he could not be mulcted in costs incurred against the defendant Peterson; that the suits instituted against the defendant Peterson should be dismissed and plaintiffs compelled to institute new proceedings against the defendant La Prade.

We will first deal with this all-important question of the substitution of the defendant La Prade. Section 780, title 28 USCA, provides:

"(a) Where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, or of the District of Columbia, or the Canal Zone, or of a Territory or an insular possession of the United States, or of a county, city, or other governmental agency of such Territory or insular possession, and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.

"(b) Similar proceedings may be had and taken where an action, suit, or proceeding brought by or against an officer of a State, or of a county, city, or other governmental agency of a State, is pending in a court of the United States at the time of the officer's death or separation from the office.

"(c) Before a substitution under this section is made, the party or officer to be affected, unless expressly consenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to present any objection which he may have."

From the historical note to this section it appears that the act is derived from that of February 13, 1925, which was substituted for the earlier act of 1899. The act of 1899 resulted from a suggestion of the Supreme Court contained in the opinion in the case of U. S. ex rel. Bernardin v. Butterworth, 169 U. S. 600, 18 S. Ct. 441, 42 L. Ed. 873, and related to federal officers. The action of Congress in passing section 780 as it now stands, no doubt resulted from the suggestion of the Supreme Court contained in its opinion in the case of Irwin v. Wright, 258 U. S. pages 223, 224, 42 S. Ct. 293, 295, 66 L. Ed. 573, in which the court said: "It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure."

In the case of Calendonian Coal Company v. Baker, 196 U. S. at page 441, 25 S. Ct. 375, 377, 49 L. Ed. 540, which was a mandamus proceeding, the court, in commenting on the question of substitution in cases of this character, said: "And, if a successor in office may be substituted, he may be mulcted in costs for the fault of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary."

There is a broad distinction between the instant cases and the rule last above announced. The Attorney General of Arizona holds office until his successor is duly elected and qualified. Article 5, § 1, Arizona Constitution; section 56, Rev. Code Ariz. 1928. The Arizona statute involved herein imposes the duty on the Attorney General of the state, and him alone, to enforce the Train Limit Law. It is a continuing statutory duty devolving upon each succeeding Attorney General of the state. This duty is imposed upon Mr. La Prade as it was upon Mr. Peterson, and will continue to be inherited by each succeeding Attorney General as long as the act remains upon the statute books of Arizona. The plaintiff's cause of action, in so far as the same may depend upon the threatened injury, does not rest upon any expression of intent on the part of the defendant other than his oath of office, as the threat is contained in the language of the statute. When the defendant La Prade took the oath of office, it became his sworn duty to enforce the law. As long as there is an Attorney General in the state, the threat of prosecution is always present, and the injury, if any, resulting therefrom is always impending. Commonwealth of Pennsylvania v. State of West Virginia (State of Ohio v. State of West Virginia), 262 U. S. 553, 43 S. Ct. 658, 67 L. Ed. 1117, 32 A. L. R. 300.

These suits have been pending since 1929. Much time and a large sum of money have been expended in preparing them for final adjudication. Twenty-five volumes of evidence, comprising about 10,000 pages, were included in the master's report to this court. The questions involved are of grave importance, not alone to the plaintiffs, but to the public at large. We therefore find that there is a substantial need for continuing and maintaining these causes and obtaining an adjudication of the questions involved, that it is a proper case in which substitution should be made, and, as costs in equity cases are in the sound discretion of the court (DuBois v. Kirk, 158 U. S. 58-67, 15 S. Ct. 729, 39 L. Ed. 895) the motion to substitute the defendant La Prade in the place and stead of Peterson is granted, upon condition that no costs that have accrued prior to or after the substitution, may be assessed against him. The motion of defendant La Prade to dismiss, as to him, is denied. The defendant Peterson moved the court to dismiss the bills of complaint as to him, which motion is also denied.

At this juncture the...