State of Delaware v. Hodsdon

Decision Date16 March 1967
Docket NumberCiv. A. No. 3261.
Citation265 F. Supp. 308
PartiesSTATE OF DELAWARE ex rel. Ralph H. TRADER, Jr., Adjutant, Veterans of Foreign Wars of the United States, Department of Delaware, District No. 1, Plaintiff, v. William M. HODSDON, Defendant.
CourtU.S. District Court — District of Delaware

Ruth M. Ferrell, Deputy Atty. Gen., Wilmington, Del., for plaintiff.

Emmett J. Conte, Jr., Wilmington, Del., for defendant.


CALEB M. WRIGHT, Chief Judge.

In this action the State of Delaware seeks a temporary restraining order, a preliminary injunction, and after final hearing, a permanent injunction against William M. Hodsdon. Hodsdon has been flying the flag of the United Nations above and to the right of the American flag in front of his residence. The State of Delaware contends that this conduct violates 36 U.S.C.A. § 175(c) (1953).1 The defendant has moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The Court has concluded that the defendant's motion must be granted.

The Court starts with the proposition that the United States District Courts are courts of limited jurisdiction.

"There are limitations upon the jurisdiction of all courts—federal and state. But there is an important distinction between the jurisdictional status of these dual judicial systems. A baseline state court is a court having general jurisdiction over actions at law and/or suits in equity. Federal courts, on the other hand, have a jurisdiction that is limited in two respects. First, federal judicial power embraces only the matters enumerated in the Constitution. Second, aside from the Supreme Court, federal courts have only that jurisdiction which Congress, acting within the limits of the Constitution, confers upon them." 1A Moore, Federal Practice ¶ 0.60 3 (2d ed. 1964).

In this action the State of Delaware has cited no special statute which confers jurisdiction upon this Court. Nor could the State cite such a provision for Title 36 does not contain a provision conferring jurisdiction upon the District Courts. Accordingly, the jurisdiction of this Court must rest upon the general federal question provision. 28 U.S.C.A. § 1331 (1958).2 Section 1331 provides for general federal question jurisdiction when the amount in controversy exceeds $10,000. Assuming, for the moment that this is an action "arising under the laws of the United States", there is no allegation in the complaint that the amount in controversy exceeds the jurisdictional amount.

It is generally recognized that the determination of the amount in controversy is to be made from the vantage point of the plaintiff's damages. 1A Moore, Federal Practice ¶ 0.91 1, ¶ 0.96 2 (2d ed. 1964). In the instant case it is difficult to conceive of any pecuniary damage to the State of Delaware or its citizens. The Court does not doubt that the actions of the defendant, to the extent that they disparage the American flag, have aroused genuine emotions among portions of the citizenry. With such feelings the Court can readily sympathize. However, the statutes of the United States require that the pecuniary threshold be crossed in federal question litigation. The plaintiff has not demonstrated that the threshold has been crossed.

The plaintiff seeks to remedy the jurisdictional deficiency by invoking the Court's "general equity jurisdiction" and Rule 65 of the Federal Rules of Civil Procedure.3 The short answer to these arguments is that the United States District Courts have no "general equity jurisdiction" absent a specific statutory provision. Rule 65, which relates to the issuance of injunctions, merely sets forth the procedures for obtaining injunctive relief, and is unrelated to the issue of the Court's jurisdiction.

There is yet another reason for dismissing the complaint herein. The action is founded upon the defendant's alleged violation of 36 U.S.C.A. § 175(c) (1953). Title 36 is not intended to proscribe behavior. It is fashioned as an expression of prevalent custom regarding the display of the American flag. Section 173 thereof so states:

"The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States."

It is apparent that the sections are a codification of existing "rules and customs" and are intended for the "use" of people not required to conform with other regulations. If the purpose is to compel certain behavior then the selection of the word "use" is odd draftsmanship. Further, § 175(c) provides that "no other flag * * * should be placed above" the American flag. Again, a strange choice of language if the codification is intended to mandate behavior and not merely to influence it.

Further, whenever in Title 36 certain behavior was intended to be absolutely proscribed a specific section followed attaching penalties. For example, § 182(a-c) relates to service lapel buttons and who is entitled to wear them. Immediately following these sub-sections appears § 182d which provides the penalties for violation of § 182(a-c). If Congress specifically provided for penalties to attach to § 182(a-c) and did not so provide with regard to § 175...

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8 cases
  • Murphree v. Tides Condo. at Sweetwater, Case No. 3:13-cv-713-J-34MCR
    • United States
    • U.S. District Court — Middle District of Florida
    • March 31, 2014
    ...then the selection of the word 'use' is odd draftsmanship. . . ."Holmes, 407 F. Supp. at 495 (quoting State of Delaware ex rel. Trader v. Hodsdon, 265 F. Supp. 308, 310 (D. Del. 1967)). The Holmes court also noted that the Flag Code did not attach any penalties or sanctions for violation of......
  • Hodsdon v. Buckson
    • United States
    • U.S. District Court — District of Delaware
    • March 18, 1970
    ...provisions of 36 U.S.C. §§ 174-178. The District Court dismissed that action for lack of jurisdiction. State of Delaware ex rel. Trader v. Hodsdon, 265 F.Supp. 308 (1967). On April 18, 1967, defendants secured an indictment in the Delaware Superior Court against plaintiff for violation of 1......
  • State v. Mitchell
    • United States
    • Ohio Court of Appeals
    • March 14, 1972 that given the United Nations flag placed on the right of the house. He first sought help in the federal court (State of Delaware v. Hodsdon (D.Del., 1967), 265 F.Supp. 308) but that court held that the state law applied and the 'proper arena for the vindication of the patriotic sensibil......
  • Holmes v. Wallace, Civ. A. No. 75-390-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • February 12, 1976 § 175(c) and other provisions of the United States Flag Code (36 U.S.C. §§ 173-178), the Court in State of Delaware ex rel. Trader v. Hodsdon, 265 F.Supp. 308 (D.Del.1967), made the following "There is yet another reason for dismissing the complaint herein. The action is founded upon the......
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