Scott v. Frazier

• Decision Date: 14 June 1919
• Citation: 258 F. 669
• Parties: SCOTT et al. v. FRAZIER et al.
• Court: U.S. District Court — District of North Dakota

258 F. 669

SCOTT et al. v. FRAZIER et al.

United States District Court, D. North Dakota, Southeastern Division.

June 14, 1919

N.C. Young J. S. Watson, and E. T. Conmy, all of Fargo, N.D., and Tracy R. Bangs, Phillip R. Bangs, C. J. Murphy, and T. A. Toner all of Grand Forks, N.D., for plaintiffs.

Wm Lemke, of Fargo, N.D., and Frederick A. Pike, of St. Paul Minn., for Industrial Commission of North Dakota.

William Langer, Atty. Gen., D. L. Nuchols, of Mandan, N.D., and W. S. Lauder, of Wahpeton, N.D., for other defendants.

AMIDON District Judge.

This is a suit in equity to restrain the defendants (a) from paying out public funds in the state treasury amounting to several hundred thousand dollars; (b) from issuing bonds of the state for a much larger amount; and (c) to have two amendments of the state Constitution and the statutes authorizing the above payments and bonds declared null and void. It is charged in the bill that the payments are to be made, and the bonds issued, for private, as distinguished from public, purposes; that they will result in creating debts which can only be paid by taxes upon the property of the citizens of the state.

The plaintiffs are 42 taxpayers, and bring this suit on behalf of themselves and all other taxpayers. They are all citizens and residents of the state of North Dakota. This is also true of the defendants, so jurisdiction cannot be rested on diversity of citizenship.

The jurisdiction of this court is based upon two facts: First, that the amount in controversy exceeds the sum or value of $3,000; and, second, that the suit arises under the Fourteenth Amendment of the federal Constitution. A case showing both these features must be made out by the bill; otherwise, the court is without jurisdiction, and the motion of defendants to dismiss should be granted.

Plaintiffs rest their claim of the first element of jurisdiction, namely, that the amount in controversy exceeds the sum or value of $3,000, upon two grounds: 1. They assert that the suit is brought on behalf of the state to protect it against the unconstitutional use of its funds, and an unconstitutional issue of bonds. That being the nature of the suit, it is claimed that the entire fund is the amount in controversy, and not the right or possible damage of the plaintiffs. This theory presupposes that the state has rights that are protected by the Fourteenth Amendment. If it has no such rights, plaintiffs have no standing in this court as its representatives and must stand on their own feet. Has the state, then, any rights under the Fourteenth Amendment? That question must be answered in the negative. The amendment protects only the rights of 'persons.' This term has been enlarged by judicial interpretation so as to cover private corporations. It does not embrace public corporations, much less the state. Its language is:

'Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

It would be a perversion of language to say this language protects the state against acts of the state. It protects persons only, a term which embraces private corporations, but not public corporations or states. It follows, therefore, that plaintiffs, while they assert rights under the Fourteenth Amendment, cannot assert rights of the state because it has no rights that are protected by that amendment. It necessarily results that plaintiffs in this suit represent only themselves.

2. Plaintiffs assert that in suits to restrain an unconstitutional use of public funds, or issue of bonds, or levy of tax, the amount of the funds or of the bonds or of the tax is the measure of the 'amount' in controversy and not the injury to plaintiffs. There is some language in the cases which supports that view. It is, however, at variance with the decision of the Supreme Court in Colvin v. Jacksonville, 158 U.S. 456, 15 Sup.Ct. 866, 39 L.Ed. 1053, and with the uniform practice in federal courts since that decision has become known to the profession. That was a taxpayers' suit. It was brought to restrain a threatened issue of bonds for $1,000,000. It was proven that the amount of taxes which would be levied on plaintiff's property in case the bonds were issued would be less than $2,000, the amount then necessary to confer jurisdiction, and the trial court dismissed the bill for want of jurisdiction. Plaintiff insisted that the amount of the bond issue, and not his tax liability, was 'the amount in controversy,' and at his instance the court certified the question of jurisdiction to the Supreme Court. Any one who will read the certificate as set forth at page 458 of 158 U.S., 15 Sup.Ct. 866 (39 L.Ed. 1053), in the report, will see that the exact question involved under this heading of the present case was there presented to the Supreme Court. In deciding it, the court says, at page 460 of 158 U.S., at page 867 of 15 S.Ct. (39 L.Ed. 1053):

'This leaves the only question to be considered whether the amount of the interest of complainant, and not the entire issue of bonds, was the amount in controversy, and, in respect of that, we have no doubt the ruling of the Circuit Court was correct.' The court then examines Brown v. Trousdale, 138 U.S. 389, 11 Sup.Ct. 308, 34 L.Ed. 987, which was cited to me by counsel for the plaintiffs, and then orders decree affirming the decision of the lower court. It is plain, therefore, that the court there regarded Brown v. Trousdale as in harmony with the decision which it was rendering, or that its language ought to be qualified so as to bring it into harmony.

The case of Colvin v. Jacksonville, supra, is not referred to by the Circuit Court of Appeals of this circuit in its opinion in City of Ottumwa v. City Water Supply Co., 119 F. 315, 56 C.C.A. 219, 59 L.R.A. 604. Plaintiff's interest in the Ottumwa Case was sufficient to confer jurisdiction, so the language in the second paragraph of the opinion on page 318 of 119 Fed., 56 C.C.A. 219 (59 L.R.A. 604), was obiter, and, as it is in direct conflict with the decision in the Colvin Case, must be treated as an erroneous statement of the law.

Colvin v. Jacksonville has never been qualified or criticized by the Supreme Court or any Circuit Court of Appeals. From the date of that decision to the present time it has been the uniform practice in taxpayers' suits to restrain an issue of bonds, or a levy of taxes, to show that plaintiffs' threatened damage was sufficient to confer jurisdiction. The latest decision on the subject is Greene v. Louisville & Interurban Railroad Co., 244 U.S. 499-508, 37 Sup.Ct. 673, 61 L.Ed. 1280, Ann. Cas. 1917E, 88. See, also, Orleans-Kenner Electric Ry. Co. v. Dunbar, 218 F. 344, 134 C.C.A. 152, Cowell v. City Water Supply Co., 121 F. 53, 57 C.C.A. 393, and Risley v. Utica (C.C.) 168 F. 737.

In suits to enjoin a threatened tax levy, and that is the nature of the suit here, in all its aspects, the authorities are uniform that the individual plaintiffs must each have an interest in the amount of $3,000, and that several plaintiffs cannot aggregate their interests for the purpose of making up the $3,000. Wheless v. City of St. Louis (C.C.) 96 F. 865; same case, 180 U.S. 379, 21 Sup.Ct. 402, 45 L.Ed. 583; Rogers v. Hennepin Co., 239 U.S. 621, 36 Sup.Ct. 217, 60 L.Ed. 469.

How, then, are the numerous cases referred to in Dillon on Municipal Corporations (5th Ed.) section 1579 et seq., and cited to the court in argument, to be explained? That is not difficult. None of them asserts rights under the Fourteenth Amendment. They all involve cases in which cities were attempting to levy taxes or issue bonds in violation of state laws or state Constitutions. With the exceptions presently to be mentioned, the cases all arose in state courts. There it is not necessary for a plaintiff to show any particular amount as the basis of jurisdiction. Taxpayers may sue in the state courts, and claim the protection of the Fourteenth Amendment, without showing that they have a personal interest amounting to $3,000. The only object of the averment that they are taxpayers is simply to show that they are not intermeddlers. If the state courts deny relief to taxpayers, thus asserting rights under the Fourteenth Amendment, a writ of error to the Supreme Court of the United States will lie to review the decision. This distinction must be kept constantly in mind in examing decisions of the Supreme Court: Was the case brought before that court by writ of error from the highest court of the state, or by writ of error or appeal to review the decisions of a federal Circuit or District Court? In one case the amount involved is immaterial, and in the other it is controlling.

It remains to notice two cases which are relied on by plaintiffs. The first is Crampton v. Zabriskie, 101 U.s. 601, 25 L.Ed. 1070. That involved an issue of bonds by the county of Hudson in the state of New Jersey for several hundred thousand dollars. The bonds were illegal because no provision for their payment by tax levy was made as the law required. On certiorari to the board issuing the bonds, a judgment was entered by the Supreme Court of the state declaring them void. Notwithstanding this judgment, the bonds were issued to the plaintiff, Crampton. He then brought an action at law to collect the bonds in the federal court. Jurisdiction of this action was based upon diversity of citizenship and the complaint showed the requisite jurisdictional averment. Zabriskie and two other resident taxpayers of the county thereupon filed a bill of complaint on the equity side of the federal court, praying that the bonds be declared void and be delivered up, and that the board be ordered to reconvey...