Simpson v. Geary

• Decision Date: 04 March 1913
• Docket Number: 79.
• Citation: 204 F. 507
• Parties: SIMPSON et al. v. GEARY et al.
• Court: U.S. District Court — District of Arizona

204 F. 507

SIMPSON et al. v. GEARY et al.

No. 79.

United States District Court, D. Arizona.

March 4, 1913

Wilson & Lewis, of Albuquerque, N.M., for complainants.

Chalmers & Kent, of Phoenix, Ariz., for defendant Atchison, T. & S.F. Ry. Co.

George P. Bullard, Atty. Gen. of State of Arizona, and Leslie Hardy Asst. Atty. Gen., for other defendants.

Before GILBERT and MORROW, Circuit Judges, and DIETRICH, District Judge, convened under section 266 of the Judicial Code of the United States (Act March 3, 1911, 36 Stat. 1162 (U.S. Comp St. Supp. 1911, p. 236)).

MORROW Circuit Judge.

It is alleged in the bill of complaint that the complainants are citizens of the state of New Mexico; that the Atchison Topeka & Santa Fe Railway Company is a corporation of the state of Kansas, and a resident and citizen of that state that the other defendants are each residents and citizens of the state of Arizona. It is further alleged that the complainants are, and have been for a number of years, employed by the defendant the Atchison, Topeka & Santa Fe Railway Company, as porters upon the defendant's trains, and that they are also brakemen and flagmen on said trains; that by an act of the Legislature of the state of Arizona (Act of May 7, 1912; Session Laws of Arizona, p. 31) it is provided (section 3) that all passenger, mail, or express trains, composed of six or more cars, and operated outside of the yard limits, shall be equipped with and shall carry a crew consisting of not less than one engineer, one fireman, one conductor, one baggage master, one flagman, and one brakeman; that by section 8 it is provided that all flagmen mentioned in the act shall have had at least one year's experience as brakemen; that the defendant railway company has notified complainants that under said law they were not eligible for the positions of brakemen or flagmen, and the said defendant would become liable to the penalties prescribed by said statute should it retain complainants in its employ, and has notified complainants that it would have to replace them by others on December 1, 1912. It is alleged in the bill that each of the complainants receives a salary of $780 per year, amounting in the aggregate to $7,020 per annum. Complainants seek by the present bill to enjoin the defendants, as officers of the state, from enforcing the penalties prescribed by the act of the Legislature complained of, against the defendant the Atchison, Topeka & Santa Fe Railway Company, if said defendant company does not discharge the complainants from its service, and to enjoin the railway company from discharging the complainants from their employment.

The Attorney General of the state of Arizona, appearing specially for all of the defendants other than the Atchison, Topeka & Santa Fe Railway Company, has interposed a motion to dismiss the bill of complaint on the ground that it appears upon the face of the complaint that this court has no jurisdiction of the cause.

The jurisdiction of the court is invoked by the complainants on the ground of diverse citizenship, and also on the ground that the controversy is one arising under the Constitution and laws of the United States. The complainants are citizens of the state of New Mexico, and all the defendants (except the Atchison, Topeka & Santa Fe Railway Company) are residents and citizens of the state of Arizona. The defendant railway company is a resident and citizen of the state of Kansas. The action is therefore open to the objection that as against the defendant railway company the suit is not brought in the district where the defendant resides, as required by the statute, now section 51 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 (U.S. Comp. St. Supp. 1911, p. 150)); but that objection may be waived. St. Louis & San Francisco Ry. Co. v. McBride, 141 U.S. 127, 132, 11 Sup.Ct. 982, 35 L.Ed. 659; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; Western Loan Company v. Butte & Boston Min. Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101; Kreigh v. Westinghouse Co., 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984; Atchison, Topeka & Santa Fe Ry. Co. v. Gilliland, 193 F. 608, 610, 113 C.C.A. 476. And, having appeared generally in the case, it must be held that the defendant railway company has waived the objection that the suit is not brought in the district of its residence.

The diversity of citizenship required by the statute is, therefore, sufficiently stated; but is the amount involved sufficient to give the court jurisdiction? It is alleged in the complaint that the amount involved, exclusive of interest and costs, exceeds the sum or value of $3,000. But this allegation is not so conclusive as to determine the matter in controversy. In Vance v. Vandercook Co., 170 U.S. 468, 472, 18 Sup.Ct. 645, 647 (42 L.Ed. 1111), the Supreme Court said:

'In determining from the face of the pleading whether the amount really in dispute is sufficient to confer jurisdiction upon a court of the United States, it is settled that if from the nature of the case, as stated in the pleadings, there could not legally be a judgment for the amount necessary to jurisdiction, jurisdiction cannot attach, even though damages be laid in the declaration in a larger sum.'

In North America, etc., Co. v. Morrison, 178 U.S. 262, 267, 20 Sup.Ct. 869, 871 (44 L.Ed. 1061), the Supreme Court held that:

'When the plaintiff asserts as his cause of action a claim which he cannot be legally permitted to sustain by evidence, a mere ad damnum clause will not confer jurisdiction on the Circuit Court; but the court, on motion or demurrer, or of its own motion, will dismiss the suit.'

In Newburyport Water Company v. Newburyport, 193 U.S. 561, 576, 24 Sup.Ct. 553, 556 (48 L.Ed. 795), Mr. Justice White, in delivering the opinion of the court, said:

'If jurisdiction is to be determined by the mere fact that the bill alleged constitutional questions, there was, of course, jurisdiction. But that is not the sole criterion. On the contrary, it is settled that jurisdiction does not arise simply because an averment is made as to the existence of a constitutional question, if it plainly appears that such averment is not real and substantial, but is without color of merit.'

To the same effect was the opinion of this court in McGilvra v. Ross, 164 F. 604, 606, 90 C.C.A. 398.

It follows that, unless complainants can be permitted to aggregate their several claims, the amount in dispute is not sufficient to confer jurisdiction. But the substantial matter in controversy, as appears upon the face of the complaint, is not the aggregate claims, but the individual claim of each complainant, which is separate and distinct each from the other, and they are only joined together in this suit because it is convenient to so combine them, and appears to give the court jurisdiction of the cause. There is no unity of interest in the separate claims, and the most that can be said is that they belong to a class having the same general character. This is not sufficient. In Clay v. Field, 138 U.S. 464, 479, 11 Sup.Ct. 419, 425 (34 L.Ed. 1044), Mr. Justice Bradley said:

'The general principle observed in all is that if persons be joined in a suit in equity or admiralty, and have a common and undivided interest, though separable as between themselves, the amount of their joint claim or liability will be the test of jurisdiction; but where their interests are distinct, and they are joined for the sake of convenience only, and because they form a class of parties whose rights or liabilities arose out of the same transaction, or have relation to a common fund or mass of property sought to be administered, such distinct demands or liabilities cannot be aggregated together for the purpose of giving this court jurisdiction by appeal, but each must stand or fall by itself alone.'

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