Commonwealth of Massachusetts v. McHugh

• Decision Date: 25 April 1947
• Docket Number: Civ. A. No. 6611.
• Citation: 71 F. Supp. 516
• Parties: COMMONWEALTH OF MASSACHUSETTS v. McHUGH et al.
• Court: U.S. District Court — District of Massachusetts

71 F. Supp. 516

COMMONWEALTH OF MASSACHUSETTS v. McHUGH et al.

Civ. A. No. 6611.

District Court, D. Massachusetts.

April 25, 1947.

Clarence A. Barnes, Atty. Gen. of Mass., for plaintiff.

Henry Wise, of Boston, Mass., for defendants.

HEALEY, District Judge.

This matter came on for hearing on April 7, 1947, on the plaintiff's motion to remand the action to the state court.

On February 14, 1947, the Commonwealth of Massachusetts by Clarence A. Barnes, Attorney General of the Commonwealth, filed a complaint in equity against defendants in the superior court for Suffolk County, Massachusetts.

The defendants are named and described as follows:

Patrick J. McHugh, Austin J. Powers, both of Boston in the County of Suffolk;

Alphonse F. Hayes, George H. Hodson, John G. Sparrow, John Calder, John A. Muise, all of Gloucester in the County of Essex;

Normand Lajoie, Leo F. Barrett, both of New Bedford in the County of Bristol, individually and as officers and members of the Atlantic Fishermen's Union, Gloucester Branch, Boston Branch, and New Bedford Branch respectively, a voluntary unincorporated association, having usual places of business in said Gloucester, Boston, and New Bedford, affiliated with the American Federation of Labor, and all the other officers and members of said Atlantic Fishermen's Union, Gloucester Branch, Boston Branch, and New Bedford Branch, the names and designations of whom are unknown to the plaintiff.

The bill of complaint states that "the Attorney-General for the Commonwealth of Massachusetts and in the name of the Commonwealth brings this action in the nature of a Bill of Complaint against the defendants under General Laws (Ter.Ed.) c. 93, § 3."

Paragraph 2 of the complaint alleges that the Atlantic Fishermen's Union assumes jurisdiction over substantially all of the commercial fishing for fresh fish originating out of the ports of Gloucester, Boston and New Bedford, and through its membership, exercises complete control over the activities of the fishermen in those areas and of the entire supply of fresh fish coming into the ports of Gloucester, Boston and New Bedford, which constitutes substantially the entire supply for the Commonwealth; that the defendants through collaborating, cooperating and conspiring have entered into a plan or scheme, the purpose of which is to control completely not only the catching of all fresh fish in the Atlantic ocean adjacent to the Commonwealth of Massachusetts, and the above designated ports, but also to control the marketing, sale and price of all said fish in such a manner as to create a monopoly, to illegally suppress competition and unreasonably restraining trade preventing the free pursuit of lawful business, trade or occupation, purchase and sale of fresh fish in violation of the common law and of General Laws of Massachusetts (Ter.Ed.) c. 93, § 2.

The details of the alleged conspiracy are set forth in subparagraphs a, b and c of paragraph 2.

Subparagraphs d, e, f, g, h and i of paragraph 2 set forth various overt acts which are alleged to have been committed in furtherance of the conspiracy and to accomplish its ends.

Paragraph 3 contains an allegation that by virtue of the acts described in the various subdivisions of paragraph 2, the defendants have "unduly enhanced the price of fish, crippled the fish industry by subversive tactics and activities detrimental to the interests of the Commonwealth and the general public and causing irreparable damage and injury and constitute illegal acts strictly prohibited by the common law and the statutory law as hereinbefore set forth."

Paragraph 4 alleges that by virtue of the allegations set forth in paragraph 2 "said defendants have been, and are, continuing to violate General Laws, (Ter. Ed.) c. 93, § 2, and the common law."

The complaint concludes with a prayer for a preliminary and a permanent injunction against the continuance of the acts set forth in paragraph 2 of the complaint and for such further orders and decrees as to the court may seem meet and proper.

On February 20, 1947, the defendants appeared specially solely for the purpose of presenting a petition for removal of the cause to this court, and on that day filed in the state court their petition for removal to this court.

The bases alleged for the removal of the cause to this court are:

1. That plaintiff deliberately omitted and failed to state in its complaint that the defendant fishermen work as employees for wages arising out of activities occurring in the admiralty and maritime jurisdiction of the United States and in the stream of and affecting both interstate and foreign commerce.

2. That "the matters set forth in the suit and action of the Commonwealth of Massachusetts arise both under the Constitution and Laws of the United States, and present substantial disputes, controversies, and questions which arise out of, and the correct decision of which depend upon the proper construction and application, severally and in correlation, of such Constitution and laws of the United States, and particularly, in discrete or correlated relation, so far as apt, of

"(a) The First Article of the Constitution of the United States, Section 8, clause 3 thereof;

"(b) The Third Article of the Constitution of the United States, Section 2, thereof, and the admiralty and maritime jurisdiction within the Federal Competency over navigable waters;

"(c) The 14th Amendment to the said Constitution of the United States, Section 1 thereof;

"(d) The National Labor Relations Act, being act of July 5, 1935 29 U.S.C.A. § 151 et seq;

(e) The Sherman Act, so called, being act of July 2, 1890 15 U.S.C.A. §§ 1-7, 15 note;

"(f) The Clayton Act, so called, being act of October 15, 1914 15 U.S.C.A. § 12 et seq.;

"(g) The Federal Anti-injunction Act, the Norris LaGuardia Act, so called, being act of March 23, 1932 29 U.S.C.A. § 101 et seq.".

3. That "said suit and action of the Commonwealth of Massachusetts is one of which the District Courts of the United States, other than in the case of the said National Labor Relations Act in special circumstances provided, are given original jurisdiction."

On February 21, 1947, Williams, J. of the Massachusetts Superior Court, denied the defendants' petition for leave to remove the suit to this court. The exceptions of the defendants to this order were saved and the action by the court was reserved for report to the Supreme Judicial Court of Massachusetts.

On February 21, 1947, the defendants, without waiving their right to insist upon a removal of the cause to this court, and without waiving their appeal and exceptions to the denial of their petition for removal, filed, by leave of court, a motion to dismiss and quash the bill of complaint, subpoena and orders of notice. After hearing on that day, the judge of the state court denied this motion without prejudice to raise the same issues at the trial on the merits. On that day also the judge of the state court entered an interlocutory decree granting a preliminary injunction as requested by the plaintiff.

On March 19, 1947, the defendants filed in this court a motion to amend the removal petition by adding to paragraph 3 thereof an allegation that more fully describes the admiralty and interstate character of the fishing business; and another paragraph which alleges that the sale and other disposition of fish in Boston is subject to, regulated and governed by a final decree of this court as issued in the case of United States v. New England Fish Exchange et al., under date of December 4, 1919, in the case of Equity No. 810 (258 F. 732), and alleging that these matters of "sale and distribution of fresh fish rest within the bosom of the equity jurisdiction of this court." The motion further alleges that these facts were "material facts known to the plaintiff, but designedly omitted from the allegations of its Bill of Complaint."

The so-called "Removal Statute", Section 28 of the Judicial Code, as amended, 28 U.S.C.A. § 71, provides in part that "any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States * * * of which the district courts of the United States are given original jurisdiction, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State."

Assuming the present action to be a suit of a civil nature, in equity, the first question to be determined in regard to its...