Joe Louis Milk Company v. Hershey, 64 C 1478.

• Decision Date: 27 July 1965
• Docket Number: No. 64 C 1478.,64 C 1478.
• Citation: 243 F. Supp. 351
• Parties: The JOE LOUIS MILK COMPANY, Plaintiff, v. Richard G. HERSHEY, Director of Insurance, State of Illinois, Defendant.
• Court: U.S. District Court — Northern District of Illinois

243 F. Supp. 351

The JOE LOUIS MILK COMPANY, Plaintiff, v. Richard G. HERSHEY, Director of Insurance, State of Illinois, Defendant.

No. 64 C 1478.

United States District Court N. D. Illinois, E. D.

July 27, 1965.

Chauncey Eskridge, McCoy, Ming & Leighton, George C. Pontikes, Chicago, Ill., for plaintiff.

William G. Clark, Atty. Gen., State of Ill., Robert J. Sharfman, Asst. Atty. Gen., State of Ill., Chicago, Ill., for defendant.

PARSONS, District Judge.

The Joe Louis Milk Company, an Illinois dairy corporation operating in Chicago, brings this class action under the Federal Civil Rights Act, 28 U.S.C. § 1343, 42 U.S.C. §§ 1983, 1985, on behalf of itself and all others similarly situated, against the Director of Insurance of the State of Illinois "to vindicate rights protected by the Fourteenth Amendment to the Constitution of the United States."

The complaint alleges that defendant is managing the property, business and affairs of the defunct Blackhawk Mutual Insurance Company for the purpose of its liquidation, pursuant to the Illinois Insurance Code and orders of the Circuit Court of Cook County, Illinois, in Case No. 57 C 2791 (which court file allegedly is missing). Beginning on or about January 1, 1964, Hershey brought approximately 15,000 lawsuits in local Illinois courts against plaintiff and other members of the class for money allegedly owed by them to Blackhawk in order to overcome a deficiency of about $696,000.00 in its assets. As a consequence, plaintiff and others were required to expend money to defend against such lawsuits. Other persons were defaulted because they could not afford counsel, and they are being sought in garnishment; other persons have settled or paid the amounts demanded by Hershey in order to mitigate their expenses and damage.

Plaintiff alleges that defendant brought said suits upon the following theory: (a) Blackhawk issued policies of insurance providing for contingent liability against a member of the company in an amount not less than one, nor more than ten, times the premium specified in the policies; (b) because plaintiff's name, and about 35,000 other names allegedly appear in some file or record maintained by Blackhawk as an "insured person or persons" during the twelve month period beginning February 28, 1956, and ending February 27, 1957, they were, thereby, policyholders and, ipso facto, "members" in said company; (c) that defendant had authority to levy an assessment (equal to the premium shown in the file or record) against the "members" at any time during the pendency of the liquidation of proceedings, and to bring suit to collect said assessments.

The complaint further alleges that Hershey demands in each of said lawsuits the maximum premium alleged to have been specified in each policy of insurance, regardless of whether plaintiff and others had notice of the pendency of the Circuit Court suit, or of the orders entered therein; and regardless of whether the "member" ever applied volitionally for the policy, or consented to its issuance, if he ever did; and regardless of whether the "member" received any protection under the contract of insurance, even if he had applied and paid the premium in full; and regardless of the fact that it was always Hershey's obligation, and that of his predecessor, to prevent insolvent insurance companies from issuing assessable or contingent liability insurance policies to an unsuspecting public.

Finally, plaintiff contends that Hershey had no authority to levy such assessments against plaintiff and others because they did not receive notice of a claim, therefor, within one year after the termination of the policies of insurance allegedly issued to them, as provided by the Illinois Insurance Code, S.H.A. Ch. 73, § 672; and further, that they were constitutionally entitled to notice of the Circuit Court suit, and of the orders entered therein.

Plaintiff seeks a declaratory judgment that defendant has no authority to levy said assessments or to collect them, and an injunction restraining defendant and his agents from attempting to collect said levy of assessments. Plaintiff also requests damages for attorneys' fees, costs, and expenses incurred in defending those actions allegedly wrongfully brought by defendant acting "under color and pretense of the Insurance Code of Illinois."

Defendant has moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. In the alternative, defendant requests the court in its discretion, to postpone the exercise of its jurisdiction and to abstain from deciding this controversy pending the resolution of the pertinent issues by the state courts. The matter is before the court for ruling on defendant's motions.

JURISDICTION

Since jurisdiction is based upon 28 U. S.C. § 1343, the question arises whether this is a suit to redress the deprivation, under color of Illinois law, of any right, privilege or immunity secured to plaintiff and other members of the class by either the Constitution or the Federal Civil Rights Acts. Some old cases have suggested that § 1343 does not apply to cases involving mere property rights, as opposed to "civil rights" or human rights. Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1884); Pleasants v. Greenhow, 114 U.S. 323, 5 S.Ct. 931, 29 L.Ed. 204 (1884); Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374 (1900); Hague v. C. I. O., 307 U.S. 496, 518, 531-532, 59 S.Ct. 954, 83 L.Ed. 1423 (concurring opinion of Mr. Justice Stone). However, modern day courts have taken a more latitudinarian view. E. g., McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964); Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964); Cobb v. City of Malden et al., 202 F.2d 701, 705 (1st Cir. 1953).

Although corporations are not entitled to "privileges and immunities" of citizens, Orient Insurance Co. v. Daggs, 172 U.S. 557, 561, 19 S.Ct. 281, 43 L.Ed. 552 (1899); Hague v. C. I. O., 307 U.S. 496, 500, 514, 59 S.Ct. 954 (1939) (concurring opinion of Mr. Justice Roberts), they have long been held to be "persons" within the meaning of the Equal Protection Clause, Santa Clara County v. Southern Pacific RR, 118 U.S. 394, 6 S.Ct. 1132, 30 L.Ed. 118 (1886), and the Due Process Clause, Minneapolis & St. Louis RR v. Beckwith, 126 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585 (1889), of the Fourteenth Amendment. See, Graham, The "Conspiracy Theory" of The Fourteenth Amendment, 47 Yale L.J. 371-75 (1938).

No difference in constitutional protection between property rights and human rights is expressed in the language of § 1343 itself, nor can any meaningful distinction be made or justified between rights "secured" by the Constitution, and rights "arising under" or "protected" by the Constitution. Neither logic nor policy compels the conclusion that property rights are less deserving of protection under the Constitution and Civil Rights Act than are human freedoms. It appears, under current statutory interpretation, that the right of an individual or a corporation not to be deprived of property without due process of law is a "right * * * secured by the Constitution" within the meaning of § 1343. Accord, Progress Development Corp. v. Mitchell, 286 F.2d 222 (7th Cir. 1961); Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961); Northwestern Fertilizing Co. v. Hyde Park, 18 Fed.Cas. 393 (No. 10,336) (C.C.N.D.Ill. 1873).

Defendant contends that the constitutional question presented is insubstantial. A claim of unconstitutionality of official action should not be dismissed for lack of jurisdiction unless it appears, to a legal certainty, that the claim is wholly insubstantial and frivolous so far as the Constitution is concerned. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). This rule has been applied in actions under the Federal Civil Rights Act, where the jurisdictional (28 U.S.C. § 1343) and substantive (42 U.S.C. § 1983) provisions are similarly worded. Congress of Racial Equality v. Clemmons, 323 F.2d 54, 59 (5th Cir. 1963); Campbell v. Glenwood Hills Hospital, 224 F. Supp. 27, 29 (D.Minn.1963). Experience teaches that the wiser and better practice is for the court to assume jurisdiction for the purpose of determining whether the complaint states a claim upon which relief can be granted. Rogers v. Provident Hospital, 241 F.Supp. 633, (N.D.Ill. 1965); Harrison v. Murphy, 205 F.Supp. 449 (D.Del.1962); Byrd v. Sexton, 277 F.2d 418 (8th Cir. 1960). Since the merits of the constitutional question presented will be discussed below, it is sufficient to state at this point that it does not appear to a legal certainty that the question is wholly insubstantial and frivolous as to justify dismissal for lack of jurisdiction.

CAUSE OF ACTION

Plaintiff bases his cause of action upon 42 U.S.C. § 1983 and § 1985. The latter section is inapplicable, since it applies only to conspiracies to deprive a person of the equal protection of the laws or the equal privileges and immunities under the laws. Egan v. City of Aurora, 291 F.2d 706, 708 (7th Cir. 1961); Jennings v. Nester, 217 F.2d 153, 154 (7th Cir. 1955). The complaint does not allege any conspiracy, and the right allegedly violated here is the right not to be deprived of property without due process of law, rather than the right to equal protection or equal privileges and immunities.

Section 1983 provides as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in

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