Spears v. Mount Etna Morris, Civ. A. No. 14982-3.

• Decision Date: 16 June 1969
• Docket Number: Civ. A. No. 14982-3.
• Citation: 313 F. Supp. 52
• Parties: Marie SPEARS, individually, and Marie Spears, Administratrix of the Estate of Irving Spears, deceased, Plaintiffs, v. MOUNT ETNA MORRIS et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

313 F. Supp. 52

Marie SPEARS, individually, and Marie Spears, Administratrix of the Estate of Irving Spears, deceased, Plaintiffs, v. MOUNT ETNA MORRIS et al., Defendants.

Civ. A. No. 14982-3.

United States District Court, W. D. Missouri, W. D.

June 16, 1969.

Robert B. Wurdack, Kansas City, Mo., for plaintiffs.

Norman H. Anderson, Atty. Gen. of Missouri, Jefferson City, Mo., for defendants.

ORDER DISMISSING COMPLAINT AND JUDGMENT OF DISMISSAL WITHOUT PREJUDICE BECAUSE OF LACK OF JURISDICTION

BECKER, Chief Judge.

This is a suit brought by plaintiffs on a $20 state bond issued on January 1, 1862, by the State of Missouri, payable with 10% interest 3 years after date of issue. Plaintiffs allege that they are "the present holders and bearers of said bond, having come into possession of same lawfully." Plaintiffs pray judgment on the bond in the sum of $20, plus interest from January 1, 1865, at 10% compounded annually from and after that date.

The defendant State of Missouri has moved to dismiss, asserting its sovereign immunity. The defendant Treasurer of the State joins in the motion on the grounds that the action is in essence one for recovery of money from the State; that the jurisdictional amount is not present; that venue has been improperly laid; and that service of process has been insufficient.

On November 22, 1967, with leave of Court, plaintiffs filed a first amended "petition" in which Marie Spears, administratrix of the estate of Irving Spears, deceased, was substituted as a party plaintiff for Irving Spears, deceased, whose death had properly been suggested of record. In that "petition", plaintiffs alleged that they sued as representatives of a class of owners of all bonds of the type here held; that the suit was brought under Section 1983, Title 42, U.S.C., and federal jurisdiction was explicitly based thereon, because "the plaintiff (sic) is being deprived of certain rights and privileges secured by the Constitution of the United States by defendants under color of law, custom or usage," by the refusal of the defendant Treasurer to pay the principal and interest of the bond held by plaintiffs; that defendant has refused payment because of repudiation of all wartime obligations in the 1875 Missouri Constitution (Art. IV, § 52), until Missouri was paid by the United States for such expenses, that defendant alternatively gave as a reason for refusal of payment that it was the custom and usage of the State so to refuse; and that such refusal violates plaintiffs' constitutional rights to equal protection of the laws and is an unconstitutional impairment of the obligation of contracts. Count II of the amended petition states that Article IV, § 52, Missouri Constitution of 1875 (which was reenacted substantially in the 1945 Constitution at Art. III, § 39(6), V.A.M.S.) in fact requires payment of the debt and that refusing to pay is a violation of a "purely ministerial function" by the defendant Treasurer.

Defendants continued to oppose the "petition" as amended, relying on their previously-filed motions to dismiss. In addition, by supplemental suggestions filed January 31, 1968, the defendants assert that the bond in question was issued under the authority of the "rebel legislature" sitting at Neosho, Missouri, and thus is a debt or obligation incurred in rebellion against the United States, payment of which is prohibited by the 14th Amendment; that plaintiffs have not alleged discriminatory treatment or treatment different from that accorded to any other holder of such bonds; that, in a class action, the requirement of jurisdictional amount must still be met; that this complaint does not allege a true class action because there

"* * * has been no showing that plaintiffs will adequately represent the class and plaintiffs (sic) right and interest are several from those of any other in the alleged class, being dependent upon their bond * * *"

that, at best, therefore, this is a "spurious class action" where the claims are separate and cannot be aggregated to surpass the jurisdictional threshold; and that the 2-year Statute of Limitations for claims against the State in Section 33.120, RSMo, bars this suit.

Treated as a suit under the Civil Rights Act, Section 1983, Title 42, U.S.C. (whereby plaintiffs expressly attempt to state federal jurisdiction), this complaint does not state a claim, as amended. The applicable section reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Factually, the complaint contends that the defendant Treasurer of Missouri deprived plaintiffs of their constitutional rights by refusing under color of state law to pay the cash value of the bond upon demand. Specifically, the constitutional rights alleged to be infringed were (1) the right to equal protection of the laws, (2) the right to be secure from the taking of property without due process of law, (3) the right not to be unlawfully discriminated against in being deprived of the right to payment which was once extended to others who held these bonds, and (4) the right not to be subject to state laws impairing the obligation of contracts.

Plaintiffs' allegation that they have been denied the equal protection of the laws is not well-founded because they have not alleged any invidious classification in the sense of cases like Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, and Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620. In fact, no classification whatever appears on the facts stated by plaintiffs and all the inferences therefrom favorable to plaintiffs. It is assumed for the purposes of this ruling that the bond issue in question was paid by the State until 1875, when the enactment of a new Missouri Constitution provided against further payment out of state funds. Plaintiffs allege in the...