Dewar v. Brooks

• Decision Date: 21 October 1936
• Docket Number: No. H-167.,H-167.
• Citation: 16 F. Supp. 636
• Parties: DEWAR et al. v. BROOKS.
• Court: U.S. District Court — District of Nevada

16 F. Supp. 636

DEWAR et al. v. BROOKS.

No. H-167.

District Court, D. Nevada.

October 21, 1936.

Milton B. Badt, of Elko, Nev., and Donovan, Leisure, Newton & Lumbard, William J. Donovan, Carl E. Newton, Hiram E. Wooster, and John Howley, all of New York City, for plaintiffs.

E. P. Carville, U. S. Atty., of Reno, Nev., for defendant.

YANKWICH, District Judge.

On June 28, 1934, the Congress of the United States enacted an act entitled "An Act to stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes," authorizing the Secretary of the Interior to establish, in his discretion, by order, grazing districts or additions thereto not exceeding in the aggregate an area of 80,000,000 acres of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States exclusive of Alaska, which are not in national forests, national parks, or monuments or revested railroad grant lands, and which, in his opinion, are chiefly valuable for grazing and raising forage crops. The act is popularly known as the "Taylor Grazing Act." By its terms, the Secretary of the Interior is authorized to make provision for the protection, administration, regulation, and improvement of such districts and to make such rules and regulations as are necessary to accomplish the purposes of the act. To that end, he is authorized to issue or cause to be issued, permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to benefit in the use of the range upon the payment annually of reasonable fees, in each case, to be fixed or determined from time to time. 48 Stat. 1269 (43 U.S.C.A. §§ 315-315n).

On April 6, 1935, the Secretary of the Interior, acting under the provisions of the act, issued an order establishing a grazing district to be known as Nevada Grazing District No. 1, embracing portions of Elko, Eureka and Lander counties, Nevada. On May 31, 1935, the Director of Grazing, acting under the order and with the approval of the Secretary of the Interior, promulgated certain rules entitled "Circular No. 2. Rules for the Guidance of District Advisors in Recommending the Issuance of Grazing Licenses." By the circular, the Director of Grazing required all persons grazing their livestock within grazing districts to obtain from the Director of Grazing temporary licenses to do so. No fees were charged for such licenses. They were valid until January 1, 1936. and were extended later until May 1, 1936. On March 2, 1936, the Director of Grazing, by order of, and with the approval of the Secretary of the Interior, promulgated certain rules entitled "Rules for administration of Grazing Districts," which provided in substance:

"(a) That the Division of Grazing of the Department of the Interior should issue to certain qualified applicants new temporary licenses to graze livestock upon the public range within the grazing districts theretofore established until the end of the so called `winter grazing season' of 1936-1937 or until May 1, 1937, or until the issuance of `permits' within the meaning of section 3 of said Act of June 28, 1934 43 U.S.C.A. § 315b whichever should be sooner;

"(b) That a fee of five cents per month or fraction thereof for each head of cattle, and a fee of one cent per month for each head of sheep, should be collected from each licensee grazing his livestock on the public range within a grazing district; and

"(c) That, after the issuance of said new temporary licenses, all stockmen should be prohibited from grazing livestock upon or driving them across the public range within a grazing district without such a license."

The defendant Brooks is the duly appointed acting Regional Grazier for the United States for Region 3, which includes the state of Nevada. He is a citizen and resident of the United States, residing at Reno, Nev. The bill of complaint, originally filed in the District Court of the Second Judicial District of Nevada, after stating the above facts, seeks to restrain the enforcement of the rules of March 2, 1936, as illegal and void and beyond the power of the Director of Grazing and the Secretary of the Interior. More specifically, the bill alleges that the act does not give the Secretary of the Interior any authority to issue temporary licenses or to charge a fee for them, that they are not permits, that the size of the fee was fixed without any attempt to determine what would be a reasonable fee in each case, as required by the act. Upon the filing of the bill of complaint, the state district court issued a restraining order and order to show cause. Upon a petition for removal filed on behalf of the defendant, the cause was removed to this court. The plaintiffs have filed a motion to remand. The defendant has filed a motion to dismiss.

The motion to remand challenges the jurisdiction of this court.

Under clause 1, § 2, article 3 of the Constitution of the United States, the judicial power of the United States extends to "all Cases * * * arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." U.S. Const. art. 3, § 2, cl. 1. This clause defines, in general terms, the judicial power of the United States courts. It does not define the jurisdiction of the District Courts. These courts are the creature of statute. The Congress, under the power granted by the same article, to "ordain and establish" inferior courts may prescribe their jurisdiction. U.S.Const. art. 3, § 1, cl. 1.

It was intimated, in an early case, that by this provision, it is made the duty of the Congress to vest the whole judicial power. Martin v. Hunters' Lessee (1816) 1 Wheat. 304, 4 L.Ed. 97.

None the less it is accepted constitutional doctrine, at the present time, that the effect of these provisions is neither to vest the jurisdiction in the inferior courts nor to limit the right of the Congress to grant, limit, or entirely withhold it. Kline v. Burke Construction Co. (1922) 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Gillis v. California (1934) 293 U.S. 62, 66, 55 S.Ct. 45, 79 L.Ed. 199. Cases are said to arise under the Constitution or laws of the United States, whenever their correct decision depends upon the construction of either or when the right of a party may be sustained by one construction or defeated by another. Cohens v. Virginia (1821) 6 Wheat. 264, 5 L.Ed. 257; Osborn v. Bank of United States (1824) 9 Wheat. 738, 6 L.Ed. 204; Tennessee v. Davis (1879) 100 U.S. 257, 25 L.Ed. 648; Macon Grocery Company v. Atlantic Coast Line Railroad Co. (1910) 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300.

An action such as this which questions orders made by officers of the United States pursuant to an act of the Congress, and which seeks to enjoin their enforcement, comes clearly within the rules laid down by these cases.

But that alone is not sufficient to confer jurisdiction upon this court. For the Congress of the United States, in the exercise of the constitutional power conferred upon it, has added another requirement to jurisdiction by providing that district courts shall have original jurisdiction of "all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." (28 U.S.C.A. § 41 (1).

Two requirements are thus necessary: (1) That the case arise under the Constitution or laws of the United States; and (2) that the matter in controversy exceed the jurisdictional minimum of $3,000. See, Dobie on Federal Procedure (1928) § 59, pp. 163, 164; Fishback v. Western Union Telegraph Company (1896) 161 U.S. 96, 16 S.Ct. 506, 40 L.Ed. 630; Simpson v. Geary (D.C.Ariz.1913) 204 F. 507, 510; Delpit v. United States Shipping Board E. F. Corporation (C.C.A.9, 1927) 19 F.(2d) 60; National Lock Co. v. Chicago Regional Labor Board (D.C.Ill.1934) 8 F.Supp. 820. It is asserted on the part of the plaintiffs that the matter in controversy here does not exceed the jurisdictional amount. The plaintiffs' attack is not directed at the validity of the Taylor Grazing Act or of the other regulations made by the Secretary of the Interior pursuant to the authority of the Congress. It is directed solely at the right to collect the grazing fee prescribed by the regulations. The prayers of the complaint are indicative of the right of the plaintiffs claimed to have been invaded. Excluding the formal ones relating to the issuance of a subpœna and temporary restraining order, what the plaintiffs seek is set forth fully in paragraphs 2 and 3 of the prayer. They are:

"Second: That the Court, upon the final hearing of this cause, adjudge and decree that the Director of Grazing and the Secretary of the Interior had no authority, power or jurisdiction to promulgate, or to order or approve the promulgation of, said Rules of March 2, 1936, requiring the plaintiffs to pay the fees as herein set forth as a prerequisite to grazing their livestock upon the public range within Nevada Grazing District No. 1 under the said temporary revocable licenses.

"Third: That upon the final hearing of this cause the defendant Brooks be perpetually enjoined from barring, or threatening to bar, plaintiffs from grazing their livestock upon the public range within Nevada Grazing District No. 1 in default of payment of the said grazing fee of five cents per month or fraction thereof per head of cattle, and one cent per month or fraction thereof per head of sheep, grazed upon such public range, and in default of obtaining a new temporary license as required by said Rules...