Walker v. City of Houston
Decision Date | 04 May 1972 |
Docket Number | Civ. A. No. 69 H 168. |
Citation | 341 F. Supp. 1124 |
Parties | J. W. WALKER et al. v. CITY OF HOUSTON et al. |
Court | U.S. District Court — Southern District of Texas |
Kermitt L. Waters, Sam Wilson, Houston, Tex., for plaintiffs.
F. William Colburn, Houston, Harvey L. Hardy, San Antonio, Ted P. MacMaster, Dallas, Tex., Malcolm L. Quick, Asst. Atty. Gen. of Texas, Austin, Tex., Wade Adkins, El Paso, for defendants.
The three-judge court impaneled in this case pursuant to Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968), held that this case does not present issues of the sort that must be heard and determined by the special three-judge court. The panel was therefore dissolved and the case remanded to this single-judge court. It must now be determined whether plaintiffs have invoked federal jurisdiction for this single-judge court.
This court has determined that it does have full jurisdiction over the parties and the subject matter of this action. Although, as suggested in Warner v. Bd. of Trustees, 277 F.Supp. 736 (E.D.La.1967), the case of Pennie v. Reis, 132 U.S. 464, 10 S.Ct. 149, 33 L. Ed. 426, will probably be persuasive in deciding the merits of plaintiffs' due process allegations, the merits of this constitutional question are not so well settled as to cause it to be insubstantial. Nor do prior decisions preclude litigation of plaintiffs' other constitutional allegations. In fact, it appears that plaintiffs' equal protection issue and other constitutional arguments have never before been litigated in an analagous federal case. None of these constitutional issues are rendered insubstantial by an obvious lack of merit.
Jurisdiction in this case must be based upon either the "civil rights" provisions of 28 U.S.C. § 1343(3), where no amount in controversy is required, or the "federal question" jurisdiction of 28 U.S.C. § 1331, where there must be in excess of $10,000 in controversy. The plaintiffs have alleged that jurisdiction may be founded upon either of these statutes. The defendants argue: (1) this can only constitute a § 1331 case, assuming there exists a substantial federal question, and not a civil rights action under § 1343; (2) the claims of the plaintiffs are several and may not be aggregated to meet the jurisdictional amount of prerequisite of § 1331; and (3) no individual plaintiff has satisfied the amount in controversy requirement of § 1331.
Even if jurisdiction could only be founded upon § 1331, the jurisdictional amount prerequisite of that statute would be met. In addition to alleging that the aggregated claims of the plaintiffs far exceed the jurisdictional amount, plaintiffs also have alleged in their complaint that "some of the plaintiffs ... in and of themselves, individually have an amount or value in controversy, in excess of $10,000, exclusive of interest and costs." The plaintiffs' pleadings and an affidavit of plaintiffs' attorney indicate that there is a substantial claim by one or more of the plaintiffs, individually, for sums satisfying the amount in controversy requirement. These claims appear to be asserted in good faith. It does not appear to a legal certainty that none of these separate claims are for less than $10,000. Thus, in these circumstances, if only § 1331 were applicable, objections based upon the $10,000 requirement of § 1331 would be overruled. But the court has concluded that § 1343 applies here, so the $10,000 requirement of § 1331 is irrelevant.
The Civil Rights Act of 1871, the predecessor of 28 U.S.C. § 1343(3) created a civil action against any person "who, under color of any law ... of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States . . . ." Ch. 22, § 1, 17 Stat. 13. Through the gradual incorporation of the Bill of Rights into the fourteenth amendment, the substantive provisions of the Act of 1871 have come to impose civil liability for the deprivation under color of state law of a large variety of rights and privileges. As noted earlier, no minimum amount in controversy has ever been required under the jurisdictional provisions for this "civil rights" action. By an Act in 1875, the predecessor of § 1331, Congress extended jurisdiction to "all suits of a civil nature at common law or in equity ... arising under the Constitution or laws of the United States". Unlike in the 1871 Act, Congress required that there be a minimum amount in controversy in these cases. Because of the broad language of § 1331, the two statutes would appear to substantially overlap. There has never been a Congressional attempt to delimit the type of cases "secured by" the Constitution within the meaning of § 1343 and those "arising under" the Constitution within the meaning of § 1331.
In Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L.Ed. 1423 (1939), Justice Stone attempted to reconcile the apparent conflict between these sections as to the jurisdictional amount requirement of § 1331. He was convinced that Congress in 1875 had not intended to withdraw from the courts the jurisdiction it had granted them in 1871. Justice Stone felt that since the 1871 statute was not repealed, Congress intended that suit would be brought under the 1871 statute, the predecessor to § 1343(3) after, as well as before, the enactment of the 1875 statute. Concluding then that the "civil rights" and "federal question" statutes were not meant to be coextensive, Justice Stone reasoned:
By treating section 1343 as conferring federal jurisdiction of suits brought under the Act of 1871 in which the right asserted is inherently incapable of pecuniary valuation, we harmonize the two parallel provisions of the Judiciary Code, construe neither as superfluous, and give to each a scope in conformity with its history and manifest purpose.
Thus, birth was given to the rule that if a suit involves only a "property or monetary right" section 1331 applies, but if it involves a "right asserted is inherently incapable of pecuniary valuation" then section 1343 applies. Most courts have at least paid lip service to Stone's formulation. See, e. g. Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374 (1900); Ream v. Handley, 359 F.2d 728 (7th Cir. 1966); McManigal v. Simon, 382 F.2d 408 (7th Cir. 1967); Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966); Alterman Transp. Lines, Inc. v. Public Serv. Comm'n, 259 F.Supp. 486, 492 (M.D.Tenn.1966) (three-judge court), aff'd per curiam 386 U.S. 262, 87 S.Ct. 1023, 18 L.Ed.2d 39 (1967); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1963) (three-judge court), aff'd mem., 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963); Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967); Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965); Bussie v. Long, 383 F. 2d 766 (5th Cir. 1967); Hornbeak v. Hamm, 283 F.Supp. 549 (M.D.Ala.1968). Contra, Joe Louis Milk Co. v. Hershey, 243 F.Supp. 351 (N.D.Ill.1965); but see, Glicker v. Mich. Liquor Control Comm'n, 160 F.2d 96 (6th Cir. 1947); Burt v. New York, 156 F.2d 791 (2d Cir. 1946); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953).
By affirming two recent appeals challenging the validity of this "property rights" and "rights of personal liberty" distinction, the Supreme Court would appear to have at least tacitly approved Justice Stone's dictum in Hague v. C.I. O. In the earlier of these cases, Abernathy v. Carpenter, 208 F.Supp. 793 (W. D.Mo.1963) (three-judge court), aff'd mem., 373 U.S. 241, 83 S.Ct. 1295, 10 L. Ed.2d 409 (1963), the district court stated "the distinction between the two statutes 28 U.S.C.A. §§ 1331 and 1343(3) appears in the case of Hague v. C.I.O., * * * which this Court believes to be the correct interpretation." 208 F.Supp. at 794. The Court of Appeals for the Seventh Circuit in Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966), put the proposition in this manner, "thus far, at least, it is quite clear that the courts have generally treated this statute 28 U.S.C.A. § 1343 as applicable to personal liberty rather than a property or monetary claim." In the second case, Alterman Transp. Lines, Inc. v. Public Serv. Comm'n, 259 F.Supp. 486, 492 (M.C.Tenn.1966) (three-judge court), aff'd per curiam, 386 U.S. 262, 87 S.Ct. 1023, 18 L.Ed.2d 39 (1967), the district court stated:
The Civil Rights Act, however, may be thought of as a remedy in cases where the right asserted is incapable of pecuniary valuation. Detroit Edison Co. v. East China Township School Dist., 247 F.Supp. 296 (E.D. Mich.1965). Generally, jurisdiction under this Act cannot be invoked in a pure tax action. A mere allegation of discrimination is insufficient to invoke Civil Rights Act jurisdiction automatically. Where plaintiffs' remedies are of the sort classically associated with tax actions and the claims are of a property nature, a federal court should not accept jurisdiction solely on this basis. Cf. Olan Mills, Inc. of Tenn. v. Opelika, Alabama, 207 F.Supp. 332 (M.D.Ala.1962). Otherwise, the jurisdictional amount provisions of 28 U.S.C.A. §§ 1331 and 1332 could easily be circumvented by a mere allegation of denial of equal protection. This would be true even if the amount in controversy were readily ascertainable.
The apparent simplicity of Justice Stone's formula is deceiving, for beneath its orderly veneer lie serious deficiencies. Many cases involve both proprietary and personal interests and therefore do not fall neatly into one category or the other. One such instance is when a plaintiff seeks judicial protection of his right to be free from discriminatory hiring. Although such a case involves an alleged unconstitutional infringement of a right of personal liberty, it also involves rights capable of pecuniary valuation — i. e., the right to earn and receive certain wages. See, Truax v. Raich, 239 U.S. 33, 36 S.Ct....
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