United States to Use of Edward Hines Lumber Co. v. Henderlong

• Decision Date: 21 May 1900
• Docket Number: 9,675.
• Citation: 102 F. 2
• Parties: UNITED STATES, to Use of EDWARD HINES LUMBER CO., v. HENDERLONG et al.
• Court: United States Circuit Court, District of Indiana

102 F. 2

UNITED STATES, to Use of EDWARD HINES LUMBER CO., v. HENDERLONG et al.

No. 9,675.

United States Circuit Court, D. Indiana.

May 21, 1900

Rich &amp Rich, Grant Crumpacker, and John G. Williams, for plaintiff.

Wm Johnston and E. C. Field, for defendants.

BAKER District Judge.

This is an action brought in this court by the plaintiff to recover from the defendants the value of certain lumber furnished to Henderlong Bros. & O'Neill, who, as contractors, were erecting a post-office building for the United States at South Bend, Ind. The action is upon a bond executed by Henderlong Bros. & O'Neill as principals, and by the other defendants as sureties. The amount of the debt is alleged to be $1,262.25, for which amount judgment is demanded.

The act of congress in pursuance of which the bond in suit was executed was approved August 13, 1894 (28 Stat. 278). It is entitled 'An act for the protection of persons furnishing materials and labor for the construction of public works,' and provides that:

'Any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond with good and sufficient sureties with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor and furnishing affidavit to the department under which the work is being or has been prosecuted, that labor or material for the prosecution of such work is being or has been prosecuted, that labor or material for the prosecution of such work has been supplied by him or them and payment for the same has not been made, shall be furnished with a certified copy of said contract and bond upon which said person or persons supplying such labor and materials shall have a right of action and shall be authorized to bring suit in the name of the United States for his or their use and benefit, against said contractor and sureties and to prosecute the same to final judgment and execution; provided, that such action and its prosecution shall involve the United States in no expense.

'Sec. 2. Provided, that in such case the court in which such action is brought is authorized to require proper security for costs in case judgment is for the defendant.'

The case was submitted to the court for trial, and, the court having heard the evidence, the question of the jurisdiction of the court has been raised; and it therefore becomes necessary to determine whether the court has jurisdiction of this action, it being shown by the allegations of the complaint and by the evidence introduced on the trial that the amount in controversy is less than $2,000.

The statute under which the bond in suit was given does not prescribe the court in which the laborer or material man shall bring his suit to enforce the right of action which is thereby secured to him. In the absence of statutory regulation, the overwhelming weight of authority makes it certain that the laborer or material man could maintain an action in his own name against the principal and sureties in the bond for the recovery of the value of the labor or material supplied in the prosecution of the work. The statute, however, authorizes the laborer or material man to 'bring suit in the name of the United States for his or their use and benefit,' and doubtless in the courts of the United States the suit should be brought in that way. It is not by any means certain that the laborer or material man may not bring suit in his own name in any state court of competent jurisdiction in accordance with the course of practice in such courts. As the stature does not prescribe the court in which the suit shall be brought, there would seem to be no doubt that it may be brought in the name of the United States, for the use of the laborer or material man, in any proper state court. It is manifest that it was not the purpose of this statute to create or confer any new jurisdiction on the courts of the United States for the enforcement of the claims of laborers or material men. It proceeds on the assumption that the existing jurisdiction of the courts is sufficient to secure the enforcement of the rights secured to them by the bond. The authority was granted to the laborer and material man to bring suit in the name of the United States for his or their use and benefit as a mere matter of convenience. If this court possesses jurisdiction, it must be found in the first section of the judiciary act of March 3, 1887 (24 Stat. 552, c. 373), corrected by the act of August 13, 1888 (25 Stat. 433, c. 866). So much of that section as is pertinent to the present discussion was construed in U.S. v. Sayward, 160 U.S. 493, 498, 16 Sup.Ct. 371, 40 L.Ed. 508, to read as follows: 'Second. Of any controversy in which the United States are petitioners or plaintiffs. ' It was there held that, in any controversy in which the United States are plaintiffs or petitioners, the circuit courts of the United States are given jurisdiction, regardless of the amount or value of the matter in suit. The right of action created by the bond in favor of laborers and material men is exclusively vested in them by the statute. They alone are authorized to bring the suit, and to prosecute the same to final judgment and execution. The United States have no interest, either directly or indirectly, in the controversy; nor can they be made liable for costs. The United States, as sole plaintiffs, could not maintain a suit in their own name upon the bond for the recovery of the value of labor or materials supplied to the contractor in the prosecution of the work. Is the present suit a controversy in which the United States are plaintiffs or petitioners, within the true meaning of the first section of the present judiciary act? A controversy, in the sense of the statute, is a case at law or in equity brought before some competent court of justice for forensic discussion and judicial decision. In order that the United States shall become plaintiffs in a case or controversy in a judicial tribunal, they must have some interest in the matter in issue. Where ...