Sperry & Hutchinson Co. v. City of Tacoma, Wash.

• Decision Date: 29 October 1912
• Docket Number: 1,841.
• Court: U.S. District Court — Western District of Washington
• Parties: SPERRY & HUTCHINSON CO. v. CITY OF TACOMA, WASH., et al.

199 F. 853

SPERRY & HUTCHINSON CO. v. CITY OF TACOMA, WASH., et al.

No. 1,841.

United States District Court, W.D. Washington, Southern Division.

October 29, 1912

Daniel J. Lyons, of New York City, and Tucker & Hyland, of Seattle Wash., for plaintiff.

T. L Stiles, of Tacoma, Wash., for defendants.

CUSHMAN District Judge.

This cause is now before the court for final decision.

The complaint was filed herein July 28, 1911, by the plaintiff, a corporation of the state of New Jersey, furnishing merchants with 'trading stamps,' praying to have decreed unconstitutional and void Ordinance No. 2133 of the city of Tacoma, which ordinance requires any one using 'trading stamps' in selling their goods, where the 'trading stamps' are redeemable by others than the sellers of the goods, to pay an annual license of one hundred dollars. The complaint, in specifying the invalidity of the ordinance alleges that the same is oppressive, unreasonable, and arbitrarily discriminatory against the complainant and its customers; that it violates both the state and federal Constitutions, and deprives the complainant and its subscribers of the liberty of contract and of their property without due process of law; that it impairs the obligations of its contracts entered into with its subscribers; that it violates section 10 of article 1, of the Constitution and the fourteenth amendment to the Constitution of the United States; that it further deprives complainant and its subscribers of the equal protection of the law, and that it is in restraint of trade and commerce. Defendants interposed a plea in bar, alleging the commencement of a suit by the complainants against the defendants in the superior court of the state of Washington, supported by the same allegations, for the same relief as that prayed in this suit; that in such suit the superior court of the state held that the plaintiff's complaint did not state facts sufficient to constitute a cause of action against the defendants; that complainant declined to amend and the action was dismissed by the court. There was no answer to the plea in bar, complainant contending that the plea was insufficient, as it did not state that the judgment of the state court was a final judgment.

Upon the hearing on the plea, it was conceded that an appeal had been taken from the judgment of the state court pleaded in bar, and this court held the plea in bar insufficient. After the hearing on the appeal in the state Supreme Court, defendants moved for a stay of proceedings in this court, pending a decision on that appeal. The stay was denied. Both the ruling on the plea in bar and that on the motion to stay were made on the ground that the fact that complainant had first brought a suit in the state court, which was still pending on appeal, in the absence of the possession of any res by that court, would not estop the complainant from proceeding herein; nor justify this court in declining to exercise its jurisdiction, concurrent with that of the state courts. Thereafter complainants filed an amended bill herein; the same being somewhat more detailed in its statements. The amended bill did not contain the allegation which was in the original bill, that the city ordinance was in violation of the state Constitution. Issue was joined. The judgment of the state court was pleaded by the defendants as estopping the complainant, and a reference thereafter had, upon which testimony was taken and returned here, after which, and before the final hearing, the defendants interposed a supplemental answer, which is not denied, alleging the affirmance of the said decision of the superior court by the state Supreme Court; its remittitur to the superior court and the filing of the same therein making such decision final so far as the state tribunals are concerned.

The decision ((Wash.) 122 P. 1060, not yet officially reported) of the Supreme Court, in part, is as follows (after stating the case):

'In this court the only question suggested is the validity of the ordinance. The appellant has filed an exhaustive brief in which it contends that the law is void because prohibitive of appellant's business, because it deprives the appellant of its property without due process of law, because it impairs the obligation of contracts, because it is ultra vires, and because it operates in restraint of competition and in restraint of trade, and is thus void as against public policy. We have not, however, found it necessary to follow the plaintiff in its discussion of the several contentions suggested, as we think they have all been foreclosed by the prior decisions of this court. In Fleetwood v. Read, 21 Wash. 547, 58 P. 665, 47 L.R.A. 205, an ordinance of the City of Tacoma, the exact counterpart of the one now in question, was upheld by us against an attack based on the ground that it was void because of the matters charged against the present ordinance, and in numerous cases, decided both before and since that time, we have upheld similar ordinances against similar attacks. Walla Walla v. Ferdon, 21 Wash. 308, 57 P. 796; Stull v. De Mattos, 23 Wash. 71, 62 P. 451, 51 L.R.A. 892; Seattle v. Barto, 31 Wash. 141, 71 P. 735; In re Garfinkle, 37 Wash. 650, 80 P. 188; Oilure Mfg. Co. v. Pidduck-Ross Co., 38 Wash. 137, 80 P. 276; McKnight v. Hodge, 55 Wash. 289, 104 P. 504; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101 (37 L.R.A. (N.S.) 466).'

Complainant contends that this judgment is not an estoppel, that this court is bound to follow its former rulings in other cases and also that filed upon the hearing for an injunction pendente lite. Ex parte Hutchinson (C.C.) 137 F. 949, and (C.C.) 190 F. 682. In these cases this court held this ordinance and other similar ordinances invalid. In an unreported case brought by A. L. Hutchinson and Ernest Hutchinson, copartners, against the city of Tacoma, certain of its officers and other parties joined as alleged conspirators against the plaintiffs, an ordinance substantially the same as the one herein involved was, by this court, held invalid. On the merits of this controversy, various other decisions are relied upon by the complainant: Long v. Maryland, 74 Md. 565, 22 A. 4, 12 L.R.A. 425, 28 Am.St.Rep. 268 (1891); Commonwealth v. Moorhead, 7 Pa.Co.Ct.R. 513; People v. Gillson, 109 N.Y. 389, 17 N.E. 343, 4 Am.St.Rep. 465 (1888); Commonwealth v. Emerson, 165 Mass. 146, 42 N.E. 559 (1896); State v. Ramseyer, 73 N.H. 31, 58...