Sperry-Hutchinson Co. v. Kuhn

• Decision Date: 20 May 1912
• Citation: 212 F. 555
• Parties: SPERRY-HUTCHINSON CO. v. KUHN, Atty. Gen.
• Court: U.S. District Court — Eastern District of Michigan

212 F. 555

SPERRY-HUTCHINSON CO. v. KUHN, Atty. Gen.

United States District Court, E.D. Michigan, Southern Division.

May 20, 1912

Frank T. Wolcott and Wm. G. Hamilton, both of New York City, for complainant.

George S. Law and Arthur P. Hicks, both of Detroit, Mich., for defendant.

Before WARRINGTON, Circuit Judge, and ANGELL and SESSIONS, District Judges (sitting in pursuance of section 266 of the Judicial Code).

PER CURIAM.

This bill is filed against the Attorney General, as sole defendant, to enjoin him from enforcing Act No. 244 of the Public Acts of 1911 of the state of Michigan, being an act to prevent, under certain circumstances, the issuing of trading stamps. Complainant claims that this act deprives it of property without due process of law, and denies it the equal protection of the laws, and is therefore void. The bill alleges that the defendant informed complainant that he conceived it to be his duty to see that the provision of said act were enforced until the court decided otherwise. Affidavits have been filed on the part of complainant and of the defendant bearing on the matter of threats by the defendant to enforce the statute. These affidavits add nothing of importance to the averment of the bill above set out. The motion for preliminary injunction and the demurrer to the bill have been heard together.

The statute here assailed imposes no duty upon the Attorney General. The statutes of the state define the functions of that officer. Under those statutes he is charged with no duty to make complaints or to file informations or otherwise to see to the enforcement of a statute such as is the one in question. It is manifest that he has made no threat to enforce this act. He has declined to say that he would not attempt to enforce it, if, before it was adjudged invalid circumstances should arise which imposed upon him a duty to enforce it.

It is the claim of complainant that the case is ruled by Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A (N.S.) 932, 14 Ann.Cas. 764, Western Union Telegraph Co v. Andrews, 216 U.S. 165, 30 Sup.Ct. 286, 54 L.Ed. 430 and Herndon v. Chicago, R.I. & P. Ry. Co., 218 U.S 135, 30 Sup.Ct. 633, 54 L.

Ed. 970. The defendant insists that the case falls within the doctrine laid down in Fitts v. McGhee, 172 U.S. 516, 19 Sup.Ct. 269, 43 L.Ed. 535.

It seems to us that this case is distinguishable from those upon which complainant relies. In Ex parte Young, a bill was filed in the federal court by stockholders against a railroad company in which they held stock, the State Railroad Commission, and Young, Attorney General of Minnesota. The bill was filed to determine the constitutional validity of certain statutes of Minnesota, and it was alleged that Young, as Attorney General, was about to take proceedings to enforce the statutes complained of. An injunction issued against him to prevent his taking such proceedings. Thereafter he took such proceedings in the state court in disregard of the injunction. Thereupon contempt proceedings were taken which ultimately reached the Supreme Court. That court held that the Attorney General of Minnesota was charged with the general duty to enforce the statutes of the state, including the statute in question.

In Western Union Co. v. Andrews, a statute, attacked as invalid, made it the duty of the prosecuting attorney of every county to sue for a penalty in case of a disobedience of the statute. Seventeen such prosecuting attorneys were threatening to bring such suits, when the telegraph company filed its bill to restrain them. In Herndon v. Railroad Co., also, the prosecuting officer was distinctly empowered by the act attacked to sue for the penalty thereby imposed.

In the last-named case the decision is put without discussion upon the authority of the two first named. The Western Union Case proceeds upon the authority of Ex parte Young, quoting from the opinion in that case, and basing the decision upon the fact, first, that 'the statute specifically charges the prosecuting attorneys with the duty of bringing actions to recover the penalties'; and, second, upon the fact that the bill averred and the demurrer admitted that 'they threatened and were about to commence proceedings for that purpose.' In Ex parte Young, Mr. Justice...