Sharp v. Barnhart, 7235

• Decision Date: 14 January 1941
• Docket Number: 7236.,No. 7235,7235
• Citation: 117 F.2d 604
• Parties: SHARP et al. v. BARNHART et al. JAMES v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

117 F.2d 604 (1941)

SHARP et al. v. BARNHART et al. JAMES v. SAME.

Nos. 7235, 7236.

Circuit Court of Appeals, Seventh Circuit.

January 14, 1941.

Harvey H. Smith, of Cincinnati, Ohio, and J. F. Sexton, of Indianapolis, Ind., for appellants.

O. S. Jackson, Atty. Gen., and Urban C. Stover and Thomas Longfellow, Deputy Attys., Gen., for appellees.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

EVANS, Circuit Judge.

These two appeals present the same legal problem; namely, jurisdiction of the United States District Court of a suit involving a liquor shipment in interstate commerce, wherein less than $3,000 is involved. Each suit was to recover for a different shipment of liquor which was seized by the State of Indiana, while in transit through that state. The trucks transporting the liquor were stopped for minor traffic violations, whereupon liquor was discovered and seized.

The District Court dismissed both suits for want of jurisdiction, because $3,000 was not involved.

It is appellants' chief contention that the Federal statute, 28 U.S.C.A. § 41(8), specifically grants Federal jurisdiction in "suits under interstate commerce laws" irrespective of the amount involved.

No. 7236, Appeal of James. This suit was to recover 102 cases of liquor, valued at $1,377.40, which were seized, December 20, 1938, at English, Indiana. The liquor was in a truck driven by one Vanover, who had come from East St. Louis, Illinois, and was being transported to Huntington, West Virginia. It belonged to James, plaintiff herein, who prayed for its return and set the compensatory damage at $1,000, and exemplary damages at $2,500. Thereafter, the parties entered a stipulation¹ withdrawing the damage issue.

After dismissal, plaintiff sought to amend his petition so as to include the damage issue, but he was denied permission so to do. He asks this court for leave to amend.

The truck was stopped by the Indiana police for "improper plates, no directional lights, no flags or flares."

On December 20, the driver, Vanover, pled guilty to two minor charges and was fined $5 on each charge, and, on December 21, he was charged with "unlawfully transporting liquor shipment, with false address." He pleaded guilty to this charge and was fined $25. The liquor illegally transported was confiscated.

No. 7235, Appeal of Sharp and Canterbury. Sharp, a citizen of West Virginia, a retailer of liquor, and Canterbury, a citizen of Ohio, a truck operator, sued to recover 135 cases of liquor (invoiced at $1,218.75) and a truck, respectively. The truck and liquor had been seized at Lafayette, Indiana, January 5, 1939, en route through Indiana from Illinois to West Virginia. The complaint originally claimed damage for liquor of $1,000 and exemplary damages of $2,500. The issue of damages in this case was, by stipulation, also withdrawn. Canterbury, the truck driver, was seized for traffic violation, arrested, and the truck searched without warrant. He was held in custody in a hotel the night of January 5, but when the case was called the next morning he had absconded and has not since been apprehended. He was indicted on January 9, 1939, for illegal possession and transportation of alcoholic beverages.

Because of the similarity of issues in the two cases they were argued at the same time, and will be disposed of in one opinion.

We are convinced that the District Court correctly dismissed the suits for want of jurisdiction.

We arrive at this conclusion after considering, and rejecting, the contention of appellants that the Federal statute, The Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., governs. The Act is controlling where it is applicable, but on the facts in the instant case, it has no bearing, for the following reasons: (1) These seizures were in connection with violations of state police regulations, not affected, in any way, by the Federal act; (2) the appellants had no permit to operate, as required by Sec. 206(a) of the Act; and therefore did not bring themselves within the protection of said Act.

The Court, in the case of McDonald v. Thomson, 305 U.S. 263, 59 S.Ct. 176, 178, 83 L.Ed. 164, held that one operating in interstate commerce had no right to an injunction against the enforcement of the State Motor Truck Act, where he had not procured a permit from the state commission (his application having been turned down), and although he had a pending application before the Interstate Commerce Commission for a permit, he was not in "bona fide operation" as a common interstate carrier, and was operating without authority of either state or Federal law. The court therefore refused to consider the extent to which the Federal act superseded the state act. It said that the proviso in the Federal act, being construed in that case, "does not extend to one operating as a common carrier on public highways of a State in defiance of its laws."

We are also impressed by the fact that the instant seizures followed violations of state police traffic regulations.

The Motor Carrier Act of Congress does not prevent the application of the salutary local provisions to promote safety of motor traffic. In the case of Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 441, 83 L.Ed. 500, the Court said:

"The roads belong to the State. There is need of local supervision of operation of motor vehicles to prevent collisions, to safeguard pedestrians, and the like. * * * In view of the efforts of governmental authorities everywhere to mitigate the destruction of life, limb and property resulting from the use of motor vehicles, it cannot be inferred that Congress intended to supersede any state safety measure prior to the taking effect of a federal measure found suitable to put in its place. Its purpose to displace the local law must be definitely expressed."

Also significant is the statement in Eichholz v. Commission, 306 U.S. 268, 273, 59 S.Ct. 532, 534, 83 L.Ed. 641:

"When the Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant's application under the Federal Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not...