Nolen v. Riechman

• Decision Date: 06 August 1915
• Docket Number: 711.
• Citation: 225 F. 812
• Parties: NOLEN v. RIECHMAN, Sheriff, et al.
• Court: U.S. District Court — Western District of Tennessee

225 F. 812

NOLEN v. RIECHMAN, Sheriff, et al.

No. 711.

United States District Court, W.D. Tennessee, Western Division.

August 6, 1915

[Copyrighted Material Omitted]

L. H Graves, Wm. R. Harrison, and Joe Hanover, all of Memphis Tenn., for petitioner.

Leo Goodman, C. M. Bryan, and Ben Capell, all of Memphis, Tenn., for defendants.

Before WARRINGTON, Circuit Judge, and McCALL and SANFORD, District Judges, under section 266 of the Judicial Code, as amended March 4, 1913 (37 Stat. 1013, c. 160).

PER CURIAM.

The purpose of this suit is to have enforcement of a statute of Tennessee enjoined, upon the ground of its alleged unconstitutionality. The controversy relates to passenger transportation in the streets of Memphis, and the suit is designed to be representative in character, within the meaning of equity rule 38; the plaintiff alleging that his own described conditions apply 'to more than 300 others in whose behalf he also brings this bill. ' The defendants are the officials whose duties would require them to enforce the statute within the city of Memphis. The issue presented on the merits of the case is whether the state has power to establish a license and indemnity system which admittedly applies to the use of automobiles in what is known as the 'jitney' service, though not to street railway service, upon the public highways and grounds within the municipalities of the state.

The statute in dispute became effective April 3, 1915, and may be summarized thus:

(a) It defines as a common carrier any person or corporation operating for hire 'any public conveyance propelled by steam, * * * gasoline, * * * electricity or other power' for purposes of transportation 'similar to that ordinarily afforded by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging' passengers 'along the way and course of operation,' and declares the business of such common carriers to be a 'privilege.'

(b) It forbids any such carrier to use or occupy any street or public place in a city or town without first obtaining 'a permit or license by ordinance giving the right' of such use or occupancy, and embodying 'such routes, terms and conditions as such city or town may elect to impose.'

(c) It requires the carrier also to furnish a bond, with sureties, in favor of the state and in such sum as the city or town may reasonably demand, not less than $5,000 for each car operated, conditioned that the carrier will pay any finally adjudged damages, 'as compensation for loss of life or injury to person or property inflicted' through negligence of the carrier.

(d) It denounces as a misdemeanor the act of so using and occupying the public street or place without first obtaining such permit or license and giving such bond, and, upon conviction, prescribes a fine of not less than $50 nor more than $100 for each offense, and declares each day's continuance to be a separate offense.

(e) It invests all cities and towns with powers corresponding to the measures so prescribed, and also 'to impose upon all such common carriers a tax for the exercise of the privilege herein granted.'

The case was submitted upon petition and answer, and an independent affidavit in support of the allegations of the petition. Apart from the legal deductions set out in the pleadings, the following may be treated as undisputed facts: The parties to the suit are all citizens of Tennessee and residents of Memphis. The city of Memphis, through its board of commissioners and in pursuance of the statute, has passed a resolution fixing the bond to be given by operators of motor busses at $5,000; and official orders have been given to compel operators of such vehicles to comply with the provision of the statute, which requires the execution and filing of such bond. The plaintiff is financially unable to procure the bond. The automobile he is operating will thus be materially reduced in earning power and in value to him through enforcement of the law. Street railways are in operation under charters and franchises within Memphis, and no such bond is required of their owners. Taxicabs are in use upon the public highways and grounds of the city; but whether operators of taxicabs are amenable to the bond requirement is reduced to a question of law between counsel. Before the passage of the statute, though no dates appear, the plaintiff obtained license to operate his car on the streets of Memphis for a period of one year.

The sole ground of jurisdiction in this court is the claim of constitutional invalidity of the statute because of its alleged violation of the fourteenth amendment. In spite of the federal question so presented, the defendants earnestly insist that the real purpose of the suit is to enjoin criminal proceedings, and that a court of equity cannot entertain jurisdiction for that reason. Before considering this feature of the defense, we feel called upon to notice a question of jurisdiction which arises upon the face of the petition. The only allegation there found upon the subject of the amount involved is that it is 'greater than two thousand ($2,000) dollars. ' This, of course, is not in accordance with the requirement that the matter in controversy must exceed, exclusive of interest and costs, 'the sum or value of three thousand dollars' (section 24, Judicial Code), nor are we at liberty to entertain jurisdiction unless this requirement is met (A. B. Andrews Co. v. Puncture Proof Footwear Co. (C.C.) 168 F. 762, 765, and citations). We might treat the allegation as an inadvertence, but the acknowledged inability of the plaintiff to give the statutory bond, and his limited interest in the machine operated, are suggestive of a serious question as to whether the jurisdictional amount is really involved. In the absence of allegation or showing, it is hard to understand how the loss arising from an operator's inability to use a single automobile for hire can be sufficient to satisfy the statutory requirement; and it is not alleged that the plaintiff, or any one in whose behalf he brings the suit, owns or causes to be operated two or more of such machines.

The question is at once presented, then, whether the alleged loss of the plaintiff could be added to the losses of other operators similarly situated, for purposes of jurisdiction. The principle upon which such an aggregation can be employed as a test of jurisdiction is that the persons joining in the suit must have a common and undivided interest, not distinct interests, in the amount involved; still, this is not to say that, if the property involved is in truth separately owned and held, the parties may not constitute a class who may be joined for the sake of convenience and economy; it is to say that aggregation of their pecuniary interests is not permissible for making up the jurisdictional amount. Clay v. Field, 138 U.S. 464, 479, 480, 11 Sup.Ct. 419, 34 L.Ed. 1044. The plaintiff and other jitney operators have a common interest, it is true, in the question whether a bond can be rightfully exacted of each of them; but it is equally plain that the damage which the plaintiff alleges, and that of other operators, as well as their titles to the vehicles they operate, are separate and distinct. It may well be, therefore, that the plaintiff can maintain a representative suit for the benefit of himself and other like operators under equity rule 38 (198 F. xxix, 115 C.C.A. xxix), and yet not be entitled to have their damages aggregated to make up the amount requisite to jurisdiction (Simpson v. Geary, 204 F. 507, 510 (D.C., three judges sitting); Wheless v. St. Louis, 180 U.S. 379, 381, 21 Sup.Ct. 402, 45 L.Ed. 583; Bateman v. Southern Oregon Co., 217 F. 933, 938, 133 C.C.A. 605 (C.C.A.,9th Circ.)). See, also, Citizens' Bank v. Cannon, 164 U.S. 319, 321, 322, 17 Sup.Ct. 89, 41 L.Ed. 451; Walter v. Northeastern R.R. Co., 147 U.S. 370, 373, 374, 13 Sup.Ct. 348, 37 L.Ed. Northern Pac. Railroad v. Walker, 148 U.S. 391, 392, 13206. However, we are not disposed to conclude the plaintiff upon this question, at least on the present state of the record; it may be that the facts will justify amendment to cure the apparent defect. Sup.Ct. 650, 37 L.Ed. 494.

We return to the claim of defendant's counsel that, since the statute is a criminal enactment, a court of equity cannot entertain jurisdiction to enjoin its enforcement. Reliance is placed upon a number of decisions, and among them the very interesting analysis of the jurisdiction of the chancery court of Tennessee and the review made of the decided cases in Kelly v. Conner, 122 Tenn. 339, 372, 123 S.W. 622, 25 L.R.A. (N.S.) 201; yet Mr. Justice Shields said in the course of the opinion:

'We are dealing solely with the jurisdiction of the chancery court of this state.'

This statement seems to have been occasioned in part at least by the rule quoted on the next preceding page from Dobbins v. Los Angeles, 195 U.S. 223, 241, 25 Sup.Ct. 18, 22 (49 L.Ed. 169):

'It is well settled that, where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity.'

It must be conceded that this doctrine is an exception to the general rule (In re Sawyer, 124 U.S. 200, 210, 8 Sup.Ct 482, 31 L.Ed. 402); and yet the exception is so firmly established in the federal practice that no useful purpose would be served by pausing to trace its origin. The reason for the exception, where applicable, is the constitutional invalidity of the statute, and, consequently, the absence of lawful power to impose or enforce the particular exactions or restrictions which would result in irreparable loss to the complaining party. Philadelphia Co....