269 F. 235 | 6th Cir. | 1920
The General Investment Company filed a bill to enjoin the consolidation of the Lake Shore and the New' York Central Railroads. The District Court dismissed the bill, because jurisdiction was not acquired over the New York Central, and that was thought essential to the object of the suit. On appeal to this court, we affirmed the conclusion as to the lack of jurisdiction pver the New York Central; but we thought that some of the relief prayed might, in a proper case, be granted against the Lake Shore alone, and that, to that extent, the New York Central’ was not an indispensable party. Accordingly, we reversed the dismissal and sent the case back for further proceedings in accordance with the opinion. This is reported in 250 Fed. 160, 162 C. C. A. 296, and to that opinion we refer for a fuller statement of the essential facts.
After the remand, the bill of complaint was amended, so as to show that plaintiff’s purchase of its five shares of stock in the Lake Shore was not, in fact, made until after the directors’ consolidation agreement had been executed. Thereupon the defendant filed a further motion, in which it asked: (1) That the bill of complaint be dismissed, in so far as it was founded upon the Sherman Act (Comp. St. §§■ 8820-8823, 8827-8830), and this for the reason that a private individual could not maintain such a bill; (2) that it be dismissed in so far as it was founded on the Clayton Act (38 Stat. 730), and this for the reason that the state court, in which the suit was commenced, had no jurisdiction of a case founded on the Clayton Act; (3) that in so far as it was founded on the Constitutions or statutes of the several states it be dismissed because it did not state a good cause of action. The motion to dismiss was granted, and plaintiff appeals.
We are unable to see any distinction in principle, in this respect,
“Any person, firm, corporation, or association shall bo entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damages by a violation of the anti-trust laws.”
The effect of this section undoubtedly is to permit maintenance under the Sherman Anti-Trust Act of that class of suits, the right to maintain which had been denied in the Paine Case; but since the present case was commenced in a state court, and was by defendant removed to the court below, we must inquire whether this section authorized the state courts to act, and, if not, then whether the removal to the federal court makes any difference.
The grant of jurisdiction is to the “courts of the United States.” This language .has been expressly held not to reach even territorial courts, although they were created by the laws of the United States. McAllister v. U. S.,141 U. S. 174, 179, 11 Sup. Ct. 949, 35 L. Ed. 693. Much less can it reach those courts which are wholly of another jurisdiction, dt is true there are cases where this term has been thought to reach some of the courts of the District of Columbia (see Page v. Burnstine, 102 U. S. 664, 26 L. Ed. 268; United States v. Mills, 11 App. D. C. 500, 504) ; but that was because the language and purpose of the act in question were especially appropriate to be so extended. In the present case the statute was dealing solely with a subject-matter of
. We first observe that, by the elimination of the New York Central and the failure to reach the Eead Committee, a very large part of the allegations of the bill and of the prayers for relief have been left inoperative, and that, although the New York Central has been held not to be an indispensable party as to portions of the relief prayed, it is by no means clear just how much of the bill is left with an effective status. Certainly many of the allegations lose their force when we re
We next observe that the consolidation sought to be enjoined was only a new formulation of the situation which had been existing for many years. It is expressly averred that the obnoxious control of parallel and competing lines had been accomplished, and for many years maintained, by stock ownership and control. It does not seem to be claimed that the proposed consolidation would create any restraints on competition that did not already exist. We find no definite statement that what was proposed would be obnoxious to any statute or constitutional provision which did not relate to competition between parallel lines, excepting the claim that the proposed consolidation would increase the capital stock and debts above the permitted limit. It is probable, also, from the silence of the bill, that during all these years the public authorities of the various states have rested content and have not indicated any belief that public policy was being violated, and it may likewise seemingly be inferred that no public authorities are now objecting to the proposed consolidation, but that, on the contrary, they are all content.
Further, we notice that plaintiff owns only one one-thousandth of 1 per cent, of the capital stock, that no other shareholder has accepted its invitation to join in preventing the imminent irreparable injury, and that this interest plaintiff bought after the consolidation contract was made. He seems to be a volunteer, rather than a conscript. We have, then, a case where a private suitor, with a minimum of ponder-able interest, and with no disposition to beware of entrance to a quarrel, is seeking relief upon the sole ground that the public policy of the state is being violated, and where the state authorities have long acquiesced and do acquiesce in any violation there may be. Under such circumstances, the court of equity will be strict in requiring the plaintiff to point out with precision and certainty in what respects the law is about to be violated and to show, clearly and positively, substantial and irreparable injury to its private rights A measure of imperfection in pleading that might well be overlooked in the ordinary controversy should not be disregarded in such a case as this.
When we examine the allegations of the bill with respect to the proposed consolidation, and with respect to (e. g.) the Ohio situation, we find it said to be “a violation of the public policies of the * * * states of * * * Ohio * * * and of the common law of those states * * * and a violation of the various laws of * * * said states aforesaid, providing against and making illegal consolidations of and the control of parallel and competing lines,” etc. While, of course, this court will take judicial notice of the Constitution and laws of Ohio, yet such an allegation is thoroughly unsatisfactory as a tender of an issue, and confirms the impression, otherwise strongly produced, that the bill was intended to rest upon the federal anti-trust laws, and that the references to the state laws were by way of makeweight.
If, however, even this indefiniteness in pleading could be excused, we would come to a more vital defect: There is a statement, -in words,
A reference to the former record shows that the motion to dismiss, made in the court below because of lack of jurisdiction over the New York Central, also included, as one of its grounds, the claim that the bill of complaint did not state a good cause; but the opinion of the court below at that time shows that such a question was never reached or considered. When that appeal came up for hearing in this court, it was open to the appellee, the Take Shore Company, to insist that the dismissal was right for the same reasons that are now insisted upon. The briefs then filed show that this was not done, and that no reference was made by counsel for either party to the questions we have now discussed. There is no reference to them in our opinion. So it must be conceded that the questions now said' to have become res judicata, or the law of the case, by our former action, were never presented to us.or considered hy us; and we cannot think that questions with such a history are foreclosed to us.
It is undoubtedly true that, when an appellate court affirms a decree below, it amounts to a decision, so far as the single case is concerned, that there were no valid objections to the decree, and reaches those unmentioned as well as those discussed. Tyler v. Magwire, 84 U. S. (17 Wall.) 253, 21 L. Ed. 576. The logic of that situation does not apply, where there is a- reversal.- In the former case, the matter is ended, and there is nothing for further consideration. In the latter event, the case is sent back expressly for further action, and the extent to which further action is concluded depends, not on what might have been decided, but upon what was decided. It is common for an appellate court to say, when reversing, that it leaves certain questions undecided, because they have not been considered; it has not been our
We interpret our former opinion, and the order denying rehearing, as expressly or by necessary implication leaving open to the court below the right to consider the power to maintain the action under either the Sherman or Clayton Act; and, the decision on those points having been against plaintiff, we think it was not only within the power, but it was the duty, of the court below to consider whether a good case was made under the state laws.
The decree below should be affirmed; but, as we rest the affirmance in part upon an insufficiency of pleading, as to the state Constitutions and statutes and the damages, the affirmance will be without prejudice to the filing in a proper court of a new bill, based upon those constitutions and laws only. *
The status of the present controversy in its relation to the Sherman an<5 Clayton Acts was considered by the Appellate Division, New York, and a suit like this one was dismissed. Venner v. New York Cent., 177 App. Div. 296, 164 N. Y. Supp. 626, affirmed 226 N. Y. 583, 123 N. E. 893, certiorari refused 249 U. S. 617, 39 Sup. Ct. 391, 63 L. Ed. 803.