Dakota Coal Co. v. Fraser

• Decision Date: 27 August 1920
• Docket Number: 5560.
• Citation: 267 F. 130
• Parties: DAKOTA COAL CO. et al. v. FRASER, Adjutant General, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 130

DAKOTA COAL CO. et al. v. FRASER, Adjutant General, et al.

No. 5560.

United States Court of Appeals, Eighth Circuit.

August 27, 1920

John E. Greene, of Minot, N.D. (A. W. Cupler, of Fargo, N.D., and Fowler, Schmitt, Carlson & Furber, of Minneapolis, Minn., on the brief), for appellants.

Seth W Richardson, of Fargo, N.D., for appellees.

Before SANBORN and STONE, Circuit Judges, and JOHNSON, District Judge.

JOHNSON District Judge.

During the strike of the coal miners in November, 1919, the Governor of North Dakota, claiming to act by virtue of the authority vested in him as Governor of the state and commander in chief of the state militia, directed the adjutant general of the state to take charge of and operate the coal or lignite mine of the plaintiffs in this action, together with the mines of 31 other companies engaged in operating coal or lignite mines in said state.

The Governor in his proclamations declared that a crisis had arisen as a result of the strike, threatening severe suffering to many in the state because of the lack of fuel. He ordered the adjutant general to see that the public was supplied with fuel, and to carry out the said order of the Governor the adjutant general was authorized to call to his assistance such male persons between the ages of 18 and 45 years as he might deem necessary, and he directed the adjutant general to prevent any interference with the operation of said mines, and to arrest any person or persons engaged in acts of violence, intimidation, or interference with the operation of said mines, and to hold such persons under guard until their release would not endanger the public safety. The Governor's directions to the adjutant general provided that, whenever the operators and miners should come to an agreement and demonstrate their willingness and ability to operate the said mines, or any of them in such manner as to protect the public, control of such mines should be relinquished to the owners.

Thereupon plaintiffs filed their complaint in the court below against the adjutant general and others, setting up the jurisdictional facts and alleging that the plaintiff McClure Coal Company was the owner, and the plaintiff Dakota Coal Company was the lessee and operator, of the coal lands described in the complaint, and that the lessee was in possession of and operating the coal mines located on said lands. The complaint set out the proclamations of the Governor and alleged that the defendant Fraser, the adjutant general, and his codefendants intended to take possession of plaintiffs' mine and to operate the same. Plaintiffs plead great and irreparable injury in sufficient particularity, and also allege:

'That it is the desire and intention on the part of these plaintiffs, and especially of the plaintiff lessee, to continue the operation of said coal mines, as they have been and now are being and to produce therefrom the maximum amount of coal at all times, and to use such means as are within its command to successfully and continuously operate said mine for its own profit and the public convenience and service; that the threatened interference by and on the part of the defendants in this action will deprive the plaintiffs of that right and privilege, and will result in the violation of those guaranties contained in the Fourteenth Amendment to the Constitution of the United States, which declares that no state shall 'deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,' and would also be a denial and infringement of that further right guaranteed to these plaintiffs by the Fifth Amendment to the Constitution of the United States which declared that 'private property shall not be taken for public use without just compensation'; that such action on the part of these defendants would also constitute an infringement upon and denial of the rights of these plaintiffs as guaranteed to them by the provisions of the Constitution of the state of North Dakota.'

Upon the filing of the complaint the trial issued a restraining order, and an order requiring the defendants to show cause why a temporary injunction should not issue. A hearing was had upon the order to show cause, and on November 26th the court made its order denying the motion of the plaintiffs for a temporary injunction. On December 9th plaintiffs filed their petition for appeal and assignments of error in the lower court, and on January 29, 1920 filed the record on appeal in this court. The error assigned by them in this court is as follows:

'The court erred in denying the application of the plaintiffs for a preliminary injunction, and in making its order refusing to grant a preliminary injunction, as prayed for in the bill of complaint. Wherefore plaintiffs and appellants pray that said order be reversed, and said district court be ordered to grant a preliminary injunction as prayed for by the plaintiffs.'

The appellees have field a motion to dismiss the appeal on the ground that the subject-matter of said appeal is now moot. The appellants resist the motion to dismiss the appeal on the grounds that:

(1) 'If the order appealed from be reversed, the appellants have the right to a judgment for the damages sustained by them resulting from appellees' possession and operation of the properties in question. Substantial and valuable rights therefore remain to be determined between the parties in this suit, if the order be reversed on this appeal.'

(2) 'The matter actually involved is the power and authority of the agencies of state government with respect to the private property of the citizen-- a question of great public concern, the decision of which will serve as a guide in case of future similar attempts by such agencies.'

The motion to dismiss is supported by the affidavit of the defendant Fraser and opposed by the affidavit of B. A. Pratt, manager of the plaintiff Dakota Coal Company. There is some conflict in the statements contained in said affidavits. The court finds the facts to be that, after the denial by the trial court of plaintiffs' motion for a temporary injunction on November 26, 1919, the defendant Fraser and his codefendants, acting under him and as his subordinates, took possession of plaintiffs' mine and control of the operation thereof until some time in the month of December, 1919, when they withdrew from said mine and ceased to exercise any further control over the operations thereof.

The affiants in their affidavits are in verbal conflict in respect to just what was done by the defendants when they withdrew from said mine and ceased to exercise further control over the operation thereof. We deem it unimportant, however, whether their action be denominated as a surrender, abandonment, relinquishment, or other term of a generally similar import.

There is also a conflict with respect to the action taken by the plaintiff lessee after the withdrawal of the defendants from said mine; but, in view of the direct and affirmative allegations contained in the affidavit of the defendant Fraser to the effect that agreements were entered into between plaintiffs and their employes, under which plaintiffs were able to operate their mine, and that for many months last past plaintiffs have had sole and exclusive and uninterrupted control of their properties, which allegations are not denied, except by indirection, by B. A. Pratt in his affidavit in behalf of the plaintiffs, the court finds that plaintiffs did by their own act resume possession of said mine prior to the date of the filing of their appeal to this court, and have ever since been in control of its operation.

The only relief asked for by the plaintiffs on this appeal-- the only relief this court could give-- is to reverse the order of the trial court denying plaintiffs' motion for a temporary injunction, and granting, or directing the trial court to grant, a preliminary injunction. What purpose would such relief serve at this time? The defendants are not now in possession of or exercising any control over plaintiffs' mine. The crisis described by the Governor, and made the basis of his action, has passed, and the defendants disclaim any intention of again taking possession of the mine of the plaintiffs. Such relief is not necessary to prevent injury to plaintiffs, because the injury, if any, threatened at the hearing before the trial court has been done. It is not necessary in order to prevent a threatened wrong--that, is a wrong about to be done-- in the taking of plaintiffs' property without just compensation, or due process of law, because the defendants now disclaim any intention or purpose of taking possession or control of said property.

It is the judgment of the court that the controversy with respect to a temporary injunction came to an end when the defendants abandoned or surrendered the possession and control of plaintiffs' mine, and the plaintiffs re-entered into possession of said mine and resumed the control and operation thereof, and that under the authorities cited below the case became moot, and should be treated accordingly. California v. San Pablo, etc., Railroad, 149 U.S 308, 13 Sup.Ct. 876, 37 L.Ed. 747; Mills v. Green, 159 U.S. 651, 16 Sup.Ct. 132, 40 L.Ed. 293; Richardson v. McChesney, 218 U.S. 487, 31 Sup.Ct. 43, 54 L.Ed. 1121; Lewis Publishing Co. v. Wyman, 228 U.S. 610, 33 Sup.Ct. 599, 57 L.Ed. 989; Id., 182 F. 13, 104...