Miller v. Smith, Civ. A. No. 36820.

Citation236 F. Supp. 927
Decision Date31 December 1964
Docket NumberCiv. A. No. 36820.
PartiesCharles F. MILLER v. Theodore B. SMITH, Secretary of Revenue of the Commonwealth of Pennsylvania, and Robert Campbell, Supervisor, Financial Responsibility Division, Bureau of Motor Vehicles.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

David H. Kubert, Philadelphia, Pa., for plaintiff.

Emil F. Goldhaber, Philadelphia, Pa., for defendant.

BIGGS, Chief Judge.

I am in receipt of a request from a United States District Judge for the Eastern District of Pennsylvania for the designation of two other judges to constitute, with him, a district court of three judges pursuant to Sections 2281 and 2284, Title 28, U.S.C., to hear and determine this case, which is alleged to involve the constitutional validity of 75 P.S. §§ 1413 and 1414, Article XIV, the "Motor Vehicle Safety Responsibility Provisions of the Pennsylvania Vehicle Code", which are asserted to be in conflict with Section 17 of the Bankruptcy Act, 11 U.S.C.A. § 35. A brief statement of the allegations of the complaint is necessary. The plaintiff, Miller, alleges that a truck belonging to him1 was involved in a highway accident in Maryland on August 30, 1956, but that the truck was not being driven by Miller nor by any agent or employee of his but "was driven by a stranger who was permitted to drive the truck by * * * an employee of * * * Miller while in Maryland and without the consent or knowledge or approval" of Miller; that judgments totalling $57,783.92 were entered against Miller because of the accident in the United States District Court for the Eastern District of Pennsylvania on May 21, 1962, at C.A. No. 23016, in favor of the Ungolos, the plaintiffs in that action; that Miller thereafter filed an involuntary petition in bankruptcy in the United States District Court for the Eastern District of Pennsylvania, and that he scheduled the judgments referred to and was duly discharged as a bankrupt on June 19, 1963.

The complaint further alleges that it was not the duty of the Clerk of the United States District Court for the Eastern District of Pennsylvania to forward to the Secretary of Revenue of the Commonwealth of Pennsylvania a certified copy of judgments entered against him but the Ungolos, as judgment creditors, requested the Clerk to do so; that the Clerk complied with this request in accordance with 75 P.S. § 1413, and that the Secretary of Revenue thereupon suspended Miller's right to operate an automobile or to register ownership thereof, and that these suspensions remain in full force and effect. The complaint also recites that no appeal is possible from this action of the Secretary of Revenue2; that the Secretary's act was mandatory and not discretionary. It appears from the record at C.A. No. 23016 that Miller took no appeal from the judgment of the United States District Court for the Eastern District of Pennsylvania against him and in favor of the Ungolos. The complaint also alleges that Section 1405 of the Pennsylvania Vehicle Code provides for reciprocity between various states of the United States and the State of Maryland has a reciprocity agreement with the Commonwealth of Pennsylvania but that no action was taken by the State of Maryland against Miller "under a section similar to Section 1405" of the Pennsylvania statute and that, therefore, the Commonwealth of Pennsylvania did not act against Miller on the basis of any reciprocity agreement.

The complaint further recites that Miller, at the time of filing his petition in bankruptcy, operated a one-man business selling live crabs on a retail basis and that in the course of his business it was necessary for him to drive to various shore points near Philadelphia in order to transport the crabs in a motor vehicle to his place of business3; that by reason of his failure to pay the Ungolo judgments based upon the "negligence of a stranger" in the operation of "his", Miller's, motor vehicle on highways outside of Pennsylvania, the action of the Commonwealth of Pennsylvania has deprived him of his livelihood "despite * * * his willingness to furnish proof of financial responsibility in the future"; that the bar against him is for life because his earning capacity is so meager that his lifetime earnings will not permit him to pay the judgments. He concludes by stating, as we have already pointed out, that by reason of the bar of his discharge under the Bankruptcy Act he is no longer obligated to pay these judgments, and that the refusal of the Secretary to reinstate him in the privileges which he seeks is unconstitutional. He prays for an injunction, mandatory in its nature, to compel the Secretary to restore his right to drive and his right to register an automobile in the Commonwealth of Pennsylvania.

The Motor Vehicle Safety Responsibility Provisions of the Pennsylvania Vehicle Code, 75 P.S. § 1401 et seq., and the particular sections, Sections 1413 and 1414, which Miller attacks, are in substance very similar to the pertinent Sections of the Safety Responsibility Act of the Utah Code Annotated, 1953, Section 41-12-1 et seq.,4 which were considered in Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962). In respect to the case at bar the Kesler case both raises a ghost and lays it. In that case the Supreme Court had before it, as we have indicated, pertinent provisions of the Safety Responsibility Act of the Utah Code similar to those in the case at bar, which, like those at bar, were attacked on the ground that Section 17 of the Bankruptcy Act, 11 U.S.C.A. § 35, applicable through the Supremacy Clause, Article VI, rendered that case adjudicable only by a three-judge court designated by the chief judge of the circuit pursuant to Sections 2281 and 2284, 28 U.S.C. But the Supreme Court, having decided that the issues presented by the Kesler case were adjudicable only by a three-judge court, also decided that the Utah statute there under attack could stand despite the provisions of Section 17 of the Bankruptcy Act as brought into play by the Supremacy Clause. It appears then that the issue presented by the case at bar can raise no substantial question as to the constitutionality of the Pennsylvania statutes and falls within the ruling of Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933), as set out immediately hereinafter: "The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. City of Phoenix, 287 U.S. 29, 30 53 S.Ct. 67, 77, 77 L.Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 53 S.Ct. 549, 550, 77 L.Ed. 1062. The question may be plainly unsubstantial, either because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 30 S.Ct. 326, 54 L.Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80 30 S.Ct. 27, 54 L.Ed. 95." Here no substantial issue as to the constitutionality of the Pennsylvania statutes remains to be adjudicated because the Supreme Court has already decided that issue unfavorably to Miller in the Kesler decision.5 The issues as to whether Miller's right to operate a motor vehicle or to register ownership thereof were lawfully suspended may be decided by a single judge of the United States District Court for the Eastern District of Pennsylvania, assuming but not deciding, that that court has jurisdiction of the pending action and assuming further that the doctrine of abstention should not be applied.

But a major issue remains to be determined. Does a chief judge of a circuit possess the power, or the authority or the duty, when notified by a district judge of the circuit that an application has been made to him for an injunction in a case which, in the opinion of the district judge, requires adjudication by a three-judge court pursuant to Sections 2281 and 2284, Title 28 U.S.C., to refuse to designate such a court if in the opinion of the chief judge the notification of the district judge is erroneous and the designation of the two additional judges therefore should not be made. Or should the chief judge of the circuit, as a ministerial act, without considering the question of whether the case is one adjudicable by a three-judge tribunal, proceed to designate two other judges to make up the three-judge court? If the three-judge district court is erroneously designated and that court as constituted tries the case a great deal of the time and energy of judges, counsel and litigants may be wasted.6 Of course, if the case is not one adjudicable by a three-judge court ordinarily an appeal will not lie to the Supreme Court, 28 U.S.C. § 2101 (b), and the error of the three-judge tribunal in wrongfully assuming jurisdiction and adjudicating the case would have to be corrected by the appropriate court of appeals.7

It is clear that when a United States district judge has failed to effect the notification or to make the request required by Section 2284(1), the Supreme Court will grant mandamus. See Stratton v. St. Louis S. W. Railway Co., 282 U.S. 10, 16, 51 S.Ct. 8, 75 L.Ed. 135 (1930). But is there a remedy other than an appeal to the Supreme Court to aid the injured litigant in the case where a district judge has given notification to the chief judge of the circuit of the filing of a case which on the pleading requires adjudication by a three-judge court and the chief judge erroneously fails or refuses to act upon the notification by constituting such a court? I conclude that the remedy of mandamus is available and that the Supreme Court would issue such a writ to a chief judge who failed to act.8

But this brings us back to the underlying...

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