Elliott v. Empire Natural Gas Co.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: SANBORN and KENYON, Circuit , and BOOTH
• Citation: Elliott v. Empire Natural Gas Co., 4 F.2d 493 (8th Cir. 1925)
• Decision Date: 07 March 1925
• Docket Number: No. 6413.,6413.
• Parties: ELLIOTT v. EMPIRE NATURAL GAS CO. et al.

4 F.2d 493 (1925)

ELLIOTT v. EMPIRE NATURAL GAS CO. et al.

No. 6413.

Circuit Court of Appeals, Eighth Circuit.

March 7, 1925.

Robert C. Foulston and George Siefkin, both of Wichita, Kan., for appellant.

H. O. Caster and Robert D. Garver, both of Bartlesville, Okl., for appellee Empire Natural Gas Co.

Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge.

KENYON, Circuit Judge.

This case is here on appeal from the District Court of the United States for the District of Kansas. Appellant brought action in the district court of Sedgwick county, Kan., against Empire Natural Gas Company, a Delaware corporation, and Kansas Gas & Electric Company, a West Virginia corporation, appellees here, asking an injunction restraining them from cutting off the supply of natural gas which appellant was receiving from them, and from attempting to collect by means of such coercive methods the sum of $16, which appellee companies claimed to be due by virtue of a certain order made December 22, 1919, by the Public Utilities Commission for the state of Kansas, which permitted them to charge $2 per month per customer from January 1, 1920, in addition to rates theretofore charged for natural gas for such period as hereinafter referred to.

At the time the order was made by the Public Utilities Commission cases were pending in this court on appeal involving certain rights of the Wichita Natural Gas Company, predecessor in interest of Kansas Gas & Electric Company in the matter of rates for gas furnished to the inhabitants of various cities of Kansas, and the order provided that, if the said Wichita Natural Gas Company should prevail in these appeals, the local distributing companies could in each city charge and collect from each domestic consumer of gas therein, in addition to the regular rates, the sum of $2 every month from January 1, 1920, to the 1st day of the month following the determination of appeals. Without reviewing such litigation, it is sufficient to say that the same resulted in favor of the Wichita Natural Gas Company; decisions being rendered in this court on or about August 17, 1920. Appellant was notified on June 12, 1922, that he was indebted to appellees for the use of the Empire Natural Gas Company in the sum of $16, being the $2 per month provided for by the order of the Kansas Public Utilities Commission for a period of 8 months, and that unless he paid the bill within 48 hours, service of natural gas would be discontinued to his premises and would not be resumed until the bill was paid. The 8 months was the period from January 1, 1920, to the 1st day of the first month following the decision in this court before referred to. Appellant thereupon commenced this action.

The case was removed to the District Court of the United States for the District of Kansas, referred to a master, report made by him, which was confirmed by the court, and decision entered in favor of appellees herein. No question was raised in the trial court as to jurisdiction. Upon appeal and submission to this court it was apparent to us from the record then presented that jurisdiction in the federal court was lacking. Following the procedure laid down by this court in Larned v. Jenkins, 109 F. 100, 48 C. C. A. 252, we ordered the submission of the case set aside, and its replacement upon the calendar, with permission to counsel on either side to bring other parts of the record to the attention of the court, as bearing on the question of jurisdiction. This has been done, and an additional transcript of record filed, which contains the petition for removal from the district court of Sedgwick county, Kan., to the United States District Court.

As our attention to the question of jurisdiction was challenged in the former appeal (298 F. 299), it is natural that we again survey the record on this question; it being the duty of this court to deny jurisdiction as to itself and as to the court from which the record comes, if it is apparent from the whole record and the nature of the case that the jurisdictional amount is not really involved. A general allegation under such circumstances that the amount in controversy exceeds the jurisdictional requirement is of no avail. Garvin v. Kogler (C. C. A.) 272 F. 442; Norton et al. v. Larney (C. C. A.) 289 F. 395; Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Vance v. W. A. Vandercook Co., 170 U. S. 648, 18 S. Ct. 674, 42 L. Ed. 1100; Lion Bonding Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Morris v. Gilmer, 129 U. S. 315, 9 S. Ct. 289, 32 L. Ed. 690. Jurisdiction in this cause depends upon "where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000." Judicial Code, § 24 (Comp. St. § 991).

What is the matter in controversy here, and does its sum or value exceed $3,000, exclusive of interest and costs? The matter in dispute is the alleged right to collect from appellant for 8 months the $2 per month extra charge allowed to appellees by the Public Utilities Commission of the state of Kansas for supplying natural gas to its consumers in the city of Wichita and to bring about payment by appellant by turning off the supply of gas being furnished to him. It is clear appellant has no right involved in the controversy equaling in value the jurisdictional amount. If appellant succeeds in his suit, the result is that appellees could not collect the $16 by shutting off the natural gas, or possibly in any other way.

If there is jurisdiction, it must be because of the value of appellees' alleged rights. Appellees claim in the petition for removal from the state court that the rights which it seeks to protect against the assault of appellant are of a sum or value equaling the jurisdictional requirement. Such claimed rights are twofold: (1) The right to collect a certain sum from the appellant under the order of the Public Utilities Commission for Kansas, and to collect like sums from other persons not parties to this cause, but who are similarly situated; (2) the right to shut off the gas being furnished to appellant and all other parties similarly situated, in order to force payment of said sums of $2 per month per consumer for a period of 8 months. This particular subdivision of section 24 of the Judicial Code, relating to "the matter in controversy" and "the sum or value of," has been the subject of much consideration by text-writers and by the courts. We refer to some of these enunciations.

In Foster on Federal Practice, § 13, the author states the rule as follows: "In a suit for an injunction, the value of the matter in dispute is that of the object of the bill, namely, the value, to the plaintiff, of the right for which he prays protection, or the value, to the defendant, of the acts of which the plaintiff prays prevention."

Rose's Code of Federal Procedure, § 129, note (g), is in part as follows: "In a suit for an injunction the matter in dispute is not determined by the amount which the complainant might recover at law for the acts complained of, but by the value of the right to be protected or the extent of the injury to be prevented by the injunction."

In Smith v. Adams, 130 U. S. 167, 175, 9 S. Ct. 566, 569 (32 L. Ed. 895), the court says: "By matter in dispute is meant the subject of litigation, the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is taken. It is conceded that the pecuniary value of the matter in dispute may be determined, not only by the money judgment prayed, where such is the case, but in some cases by the increased or diminished value of the property directly affected by the relief prayed, or by the pecuniary result to one of the parties immediately from the judgment. Thus a suit to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their use and enjoyment by the owner are impaired, is brought within the cognizance of the court, under the statute, only by the value of the property affected."

In Mississippi & Missouri Railroad Co. v. Ward, 2 Black, 485, 492 (17 L. Ed. 311), an attempt was made to abate the Rock Island bridge over the Mississippi river, the bill being filed on the theory that the bridge was an obstruction to navigation. No damages were asked. The Supreme Court said: "But the want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and the value of the object must govern."

Whitman v. Hubbell (C. C.) 30 F. 81, was a suit to restrain the maintenance of an awning over a part of a street adjoining the plaintiff's premises. It was held that the matter in dispute was the value of the right to maintain the awning, and not the amount of damage done by it to the plaintiff.

In Texas & P. Ry. Co. v. Kuteman, 54 F. 547, 4 C. C. A. 503, the railroad company sought by an injunction to restrain a shipper from prosecuting in a state court a multiplicity of suits for freight overcharges. The court held that the maintenance of the schedule rate under which the charges were made was the real subject of dispute, and that jurisdiction was measured by the value of such right of maintenance.

In Butchers' & Drovers' Stockyards Co. v. Louisville & N. R. Co., 67 F. 35, 14 C. C. A. 290, the question arose on complaint regarding equal facilities for shipping cattle. The complaint alleged the damage by the refusal of such equal facilities exceeded $2,000, the then jurisdictional requirement. It was held that in the absence of plea to jurisdiction this allegation was sufficient.

In City of Hutchinson et al. v. Beckham et al., 118 F. 399, 55 C. C. A. 333, this court held that the amount there involved was the value of the complainant's right to conduct its business without being subjected to the burden of illegal license taxes imposed by...