Chase Nat. Bank v. Mobile & OR Co.

• Decision Date: 28 November 1939
• Docket Number: No. 56.,56.
• Citation: 30 F. Supp. 565
• Court: U.S. District Court — Southern District of Alabama
• Parties: CHASE NAT. BANK OF CITY OF NEW YORK v. MOBILE & O. R. CO.

30 F. Supp. 565

CHASE NAT. BANK OF CITY OF NEW YORK v. MOBILE & O. R. CO.

No. 56.

District Court, S. D. Alabama, S. D.

November 28, 1939.

M. Barratt Walker, of Baltimore, Md., and Coleman, Spain, Stewart & Davies, of Birmingham, Ala., for United States Fidelity & Guaranty Co.

Mark D. Eagleton, Roberts P. Elam, and Chelsea O. Inman, all of St. Louis, Mo., and Wm. B. & C. C. Inge, of Mobile, Ala., for Robert P. Pellett and John F. Rogers, Jr., as administrator.

Mudge, Stern, Williams & Tucker and Larkin, Rathbone & Perry, all of New York City, Rushton & Rushton, of Montgomery, Ala., and Harry T. Smith & Caffey, of Mobile, Ala., for Chase Nat. Bank and Carl E. Buckley, as trustee.

Mitchell, Taylor, Capron & Marsh, of New York City, and Smith & Johnston, of Mobile, Ala., for City Bank Farmers Trust Co., as trustee.

ERVIN, District Judge.

This matter comes on to be heard on objections to the claims of Pellett, Rogers, and the United States Fidelity Guaranty Company.

Pellett and Rogers were employees of the Mobile and Ohio Railroad Company, and were injured in the performance of their work. The Mobile and Ohio Railroad Company declined to pay them so they sued and each recovered a judgment.

The United States Fidelity and Guaranty Company made bond without security for the Railroad, for appeals to the Supreme Court where employees had recovered judgments for personal injuries.

The judgments were affirmed and the security had to pay such judgments.

The question is, do they come under the six months rule so as to entitle them to be paid out of the earnings during the receivership operation?

In the argument of the instant case, it was insisted that the common law is not a part of the Federal Law as held in Erie R. Co. v. Tompkins, 304 U.S. 64, on page 78, 58 S.Ct. 817, on page 822, 82 L.Ed. 1188, 114 A.L.R. 1487, where the Court states: "There is no federal general common law." This statement was not necessary to the decision of that case where the question was on the construction of Sec. 34 of the Judiciary Act of September 24, 1789, 1 Stat. 92, 28 U.S.C.A. § 725, reading as follows: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." (Italics mine)

Certainly the Congress must have understood the Federal Courts had common law jurisdiction when this statute was passed.

I agree to the construction in the Erie case, but not to the statement above quoted for the following reasons.

Admitting that under the above Act the Federal Courts can not enforce a common law provision in a state, which is opposed to the law of such state, it does not follow that the common law does not exist as a part of the federal law.

Let us now look at the provisions of the Constitution itself. In Sec. 9 of Art. 1, U. S.C.A., it says:

"The Privilege of the Writ of Habeas Corpus shall not be suspended. * * *

"No Bill of Attainder or ex post facto Law shall be passed."

Neither the writ of Habeas Corpus nor the Bill of Attainder nor Ex post Facto Law was known in any place except the common law, nor does the Constitution undertake to define them. It takes for granted that they are known by all.

Article 3 provides for the judicial power and the establishment of courts in the following manner:

"Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. * * *

"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between citizens of different States, — between citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

* * * * * *

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

It will be observed that nothing is said about what law or rules shall be applied on the trial.

Certainly the writers of the Constitution must have intended the common law. They would not intentionally have left the courts there created without any law to govern them.

Take the Fifth Amendment: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, * * * nor shall any person * * * be deprived of life, liberty, or property, without due process of law." (italicizing mine) Where did the writers get these terms and provisions? How are the courts to determine what is an infamous crime? What do they mean by "due process of law"? To what law do they refer?

There is no definition or explanation as to what is due process, or by what law such process is to be determined, except the common law. Den ex dem Murray et al. v. Hoboken Land & Improvement Co., 18 How. 272, 276, 15 L.Ed. 372.

Grand juries, and trials by jury, were unknown to any law except the common law.

We come now to the Seventh Amendment: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

This is the whole amendment, and so as to make it definite, it expressly makes the common law rules control both suits at common law and trials by jury in courts of the United States.

What was preserved was a common law right. This comes near covering the field.

The Eighth Amendment refers to excessive bail and cruel and unusual punishments. Where did they get those terms, and by what standards except those of the common law, are they to be determined?

The Eleventh Amendment says: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens or another State," etc.

Again we have the common law terms, suit at law and in equity. There are many more expressions used, but these are enough to show that the Constitution adopts many of the provisions of the common law and many of its terms without undertaking to define them.

Would it apply some and use all without a meaning?

There can be no doubt that the writers of the Constitution thought it unnecessary to make any express adoption of the common law. They wrote with a knowledge of its provisions, used its terms, declared its courts, all three of them, common law, equity and admiralty, defined their powers and jurisdiction, as well as some limitations, and then left these courts to apply the common law in their administration of justice, and I think that the Federal Judges, including the Justices of the Supreme Court, were just as competent to understand and declare what the common law was as are the State Courts, so as not to overlook the law of the different states in which they sit.

Suppose a matter should come before a Federal Court sitting in a state that has no statute or ruling by its highest court on a question, what law is such Federal Judge to follow if not the common law? Suppose such Court is sitting in a state that has not adopted the common law, what law is such Court to apply?

The Federal Courts have from the time of their creation administered the common law within the limitations of their jurisdiction as fixed by the Constitution.

What other law could they administer? "The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 143, 144, 7 L.Ed. 374.

This quotation is from an opinion by Justice Story, who then proceeds for several pages to discuss and apply the common law principles, showing what law the early judges applied, as applicable to our situation.

There were thirteen colonies and no specific authority to administer the law of any one of them, they had the common law and it must have occurred to them that the Constitution was adopted in the light of that law, and as no specific directions were given, it was the intention that they were to follow the law they were accustomed to.

Take the very statute construed in the Erie case, it says "the laws of the several states * * * shall be regarded as rules of decision in trials at common law."

Certainly the Congress at that time must have thought that the Federal Courts had common law jurisdiction, for what other law were they to administer in their trials at common law?

Under the Erie R. Co. v. Tompkins, if the law of the state in which the injury occurred is to be applied, how is this court going to do that, for the Mobile and Ohio runs through five states?

How is the court to determine what portion of the earnings of the road was realized in each state, or what portions of the cost of operations was incurred in such state? Only a little thought is necessary to show what a confusion worse confounded we...