Albee Godfrey Whale Creek Co. v. Perkins

Decision Date14 March 1933
Citation6 F. Supp. 409
PartiesALBEE GODFREY WHALE CREEK CO., Inc., v. PERKINS, State Industrial Commissioner, et al.
CourtU.S. District Court — Southern District of New York

Paul Koch, of New York City, for complainant.

John J. Bennett, Jr., of New York City, for defendants.

James G. Mitchell, Edward Gluck, and J. Frank Phillips, all of New York City, amici curiæ.

Before L. HAND, Circuit Judge, and BONDY and PATTERSON, District Judges.

L. HAND, Circuit Judge.

The cause comes up upon two motions; one by the plaintiff, for an injunction, pendente lite, in a suit in equity to enjoin the Industrial Board of New York from proceeding to hear certain claims for workmen's compensation; the other by the defendants, to dismiss the bill for insufficiency in law. The plaintiff was a sub-contractor, doing work upon a prison for the City of New York on Rikers Island in the East River; the contractor in chief was the P. J. Carlin Construction Company. As the workmen did not live on the island, it was necessary to carry them back and forth from Manhattan across navigable waters. The Carlin Company for this purpose made a contract with one Forsyth and others, the owners of a steamer, by which they agreed to ferry the men, who were each to pay them ten cents a trip. The Carlin Company was to make up the daily difference between the amount received and sixty dollars, and to take any surplus to make up deficits which it had had to pay earlier. While carrying a shipload of workmen, among whom were many of the plaintiff's employees, the steamer blew up in the stream and substantially everyone on board was killed or wounded. Some of the injured, and the administrators of the dead, have brought actions against the plaintiff, but with these this suit is not concerned; it is filed to enjoin further proceedings begun by the Industrial Board, which has sent out notices to the plaintiff, to the injured and to representatives of the dead employees, of a hearing to determine its jurisdiction under the New York Compensation Law. The plaintiff was insured in the State Insurance Fund, and stood under no liability to pay any awards, but it was a member of a group of employees out of whose premiums, under section 92 of the act (Consol. Laws N. Y. c. 67), a fund has been accumulated as security against catastrophes of the kind here in question. This reserve fund amounts to $38,000, in which the plaintiff has an interest of undisclosed amount; if the proceedings result in awards, it will be exhausted by their payment.

The first question is whether we have jurisdiction over the cause at all. Section 380 of title 28, U. S. Code (28 USCA § 380), requires us not only to act when the constitutionality of a state statute is in question, but also when an unconstitutional "order" is to be enforced by a board or commission of the state. The Board here has issued notices to the plaintiff and to all the claimants to attend a hearing on the point of its jurisdiction. If this were on application of either party it would be an "order," for the act so calls it (section 20 of the N. Y. Workmen's Compensation Law Consol. Laws N. Y. c. 67). Apparently the Board issued the notice sua sponte, but this in our judgment makes no difference; it was a direction to the plaintiff to appear and present its evidence, and would have been followed by an award. Certainly it is similar to original process in an action or a suit. It appears to us that the situation is within the section. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 43 S. Ct. 353, 67 L. Ed. 659.

Proceedings by the Board ending in an award are judicial under the law of that state. Its findings are conclusive, section 20, and though reviewable in point of law, section 23, they are so in nothing else; they are the last decision upon issues arising inter partes and ending in an award of money. The Court of Appeals has declared them res judicata in other suits between the parties. Royal Indemnity Co. v. Heller, 256 N. Y. 322, 176 N. E. 410. This being true, the plaintiff may intervene at once without waiting till the claimants' rights have been finally decided by the state courts. Bacon v. Rutland R. R. Co., 232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538; Prendergast v. N. Y. Telephone Co., 262 U. S. 43, 43 S. Ct. 466, 67 L. Ed. 853; R. R. Commission v. Duluth St. Ry. Co., 273 U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807. The case is not therefore within Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150; or Porter v. Investors' Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226, where the party aggrieved ordinarily must wait till administrative remedies are concluded before seeking a federal tribunal. Indeed, were this not true, he would have no recourse at any time to a federal tribunal except by appeal to the Supreme Court from the final decision of the state court.

The merits of the bill, however, we decline to consider on the motion to dismiss under Equity Rule 29 (28 USCA § 723). This is a substitute for a demurrer, and while it is common to test the bill by it, when the questions are clearly presented upon which the equity of the cause depends, that is by no means as of course. The issues may be of such grave consequence that it is better not to decide them without full consideration of the facts. Kansas v. Colorado, 185 U. S. 125, 22 S. Ct. 552, 46 L. Ed. 838; Wisconsin v. Illinois, 270 U. S. 634, 46 S. Ct. 354, 70 L. Ed. 772. In general the question rests in the discretion of the court, which will decline to pass upon the bill when it thinks it more convenient and just to reserve the question for trial. American Creosote Works v. Powell, 298 F. 417, 422 (C. C. A. 5); Dixon v. Hopkins, 56 F.(2d) 783 (C. C. A. 5); Rankin v. Miller (C. C.) 130 F. 229; Snyder v. DeForest Wireless Tel. Co. (C. C.) 154 F. 142, 144; Smith v. Bowker Torrey Co. (D. C.) 199 F. 985; Ralston Steel Car Co. v. National Dump Car Co. (D. C.) 222 F. 590; Oneida Community, Limited, v. Fouke Fur Co. (D. C.) 286 F. 757; White v. Federal Radio Com. (D. C.) 29 F. (2d) 113; Street, Federal Equity Practice, § 963. There are good reasons here why we should not decide the merits at this stage of the case. As we shall show, there is no present reason to intervene by injunction, and there never may be. The equity of the bill depends on how the Board proceeds; if the plaintiff is not required to submit to undue prolixity of litigation, the questions can all be properly decided in the state courts, normally the proper tribunals. It is always a delicate function to assume jurisdiction over the accredited public authorities of a state, and to take from its courts the decision of matters primarily theirs. We should have to declare ourselves on the merits of the controversy, merely upon those allegations which the plaintiff chose to make; and our declaration, if we denied the motion, would not be res judicata, since it would not be a final judgment; yet it might well be an embarrassment in the conduct of the cases by the Board, and upon the appeals; and indeed it might involve a conflict between the two jurisdictions, the possibility...

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4 cases
  • Bell v. Waterfront Commission of New York Harbor
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 10, 1960
    ...or not it was "an order made by an administrative board or commission acting under State statutes." See Albee Godfrey Whale Creek Co. v. Perkins, D.C.S.D.N.Y.1933, 6 F.Supp. 409. However, Judge Dimock held that even a substantial claim of unconstitutionality based on Federal preemption "is ......
  • Melton v. Railroad Commission of Texas
    • United States
    • U.S. District Court — Western District of Texas
    • April 29, 1935
    ...it will remit the complainant to the law and to the remedial processes of state agencies and state courts. Albee Godfrey Whale Creek Co. v. Perkins (D. C.) 6 F. Supp. 409, 411; Northport Power & Light Co. v. Hartley, 283 U. S. 568, 51 S. Ct. 581, 75 L. Ed. 1275; Commonwealth of Pa. v. Willi......
  • Menominee & Marinette L. & T. Co. v. CITY OF MENOMINEE
    • United States
    • U.S. District Court — Western District of Michigan
    • August 6, 1935
    ...Bank & Trust Co. (C. C. A.) 30 F.(2d) 7; Ansehl v. Puritan Pharmaceutical Co. (C. C. A.) 61 F.(2d) 131, and Albee Godfrey Whale Creek Co. v. Perkins (D. C.) 6 F. Supp. 409. The bill alleges that the plaintiff has been for many years engaged in generating, transmitting, and distributing elec......
  • Hastings Mfg. Co. v. Gray
    • United States
    • U.S. District Court — Western District of Michigan
    • October 2, 1940
    ...the merits of the cause to be disposed of after submission of proof. See Winget v. Rockwood, 8 Cir., 69 F.2d 326; Albee Godfrey Whale Creek Co. v. Perkins, D. C., 6 F.Supp. 409. In the case of Coffield v. Sunny Line Appliance, 6 Cir., 297 F. 609, 610, it was said: "We are asked to sanction ......

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