205 F. 410 | S.D.N.Y. | 1913
(after stating the facts as above). [1] When novel litigation is presented the first question is that of jurisdiction, a question which remains pertinent in ail appellate tribunals and one to he decided whether dwelt upon by counsel or not. ft is the duly of every court to be as jealous of any unwarrantable enlargement of jurisdiction as of an attack upon its lawful powers.
j 2] That this case is novel is admitted; it being an attempt to transfer to the United States courts sitting in New York City a class of litigation of which the state tribunals have hitherto enjoyed an unenvied monopoly. The avowed legal basis of suit is the doctrine of Gelpeke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520, as applied in Muhlker v. Harlem R. R., 197 U. S. 544, 25 Sup. Ct. 522, 49 L. Ed. 872, and the proposed method of application is exactly stated in the dissenting opinion of l lolmes, J. (197 U. S. at page 573, 25 Sup. Ct. at page 529, 49 L. Ed. 872), where he said:
■T ask myself what has happened to cut down the power of the * * * courts fof New York] as against ¡the] Constitution [of the United States] at the present, day. So far as I know the only thing which lias happened is that they have decided the elevated railroad cases, to which I have referred. It is on that ground alone that we are asked to review the deci*412 sions of the Court of Appeals upon what otherwise would be purely a matter of local law. Ins other words, we are asked to extend to the present case the principle of Gelpeke v. Dubuque, supra.”
It is true that the action against which Justice Holmes protested was taken by a majority of the court, but it does not necessarily follow that what can be done by the Supreme Court of the United States upon appeal duly taken from a state tribunal can also in substance and effect be done by a national trial court. Yet that is what complainants ask — and herein lies the novelty of the present application. The complainants were presumably advised (1) that if they sued in the state courts they would be beaten on the authority of the Hindley Case, supra; and also (2) that if, when so beaten, they appealed to the Supreme Court of the United States, they would there procure relief. They certainly brought this suit, and pray a decree in favor of citizens of New York, declaring in effect that the judgment in the Hindley Case amounts to an unconstitutional infringement of the rights of parties who never appealed therefrom, as well as of all other persons (including these complainants) similarly situated.
The political consequences of such a doctrine are both amazing and alarming, and are not to be accepted unless acceptance is compelled by decisions of the highest authority. Ret it be assumed (but not decided) that the Hindley decision does constitute an unlawful invasion of the rights of certain property owners; then the institution of this suit is an assumption that the Court of Appeals having (of course inadvertently) made an unconstitutional decision, will never retract the same nor correct its own error. Such an assumption as this is wholly unwarranted, for, as has been often said, state courts are not only, competent to consider federal or constitutional questions, but it is their duty to do so. Missouri Pacific Ry. v. Fitzgerald, 160 U. S. 583, 16 Sup. Ct. 389, 40 L. Ed. 536.
In short, these complainants do not present a case arising under the Constitution of the United States, because they have not been, and non constat they never will be, injured. They have never presented their rights to the courts of New York; if they had done so, it might well be that upon due argument of their constitutional claim it would have been allowed by the state tribunals. Nor can it be assumed that the defendants if sued in the state courts would have set up the defense of prescription.
Constitutional questions do not “arise” in the statutory sense when injury can result only from a defendant’s pleading in a certain way in a suit never brought and a court’s making a certain decision on a point never presented. The fact that the decision in the Hindley Case does not necessarily deprive these complainants of any rights is enough to produce great similarity between this litigation and Shreveport v. Cole, 129 U. S. 36, 9 Sup. Ct. 210, 32 L. Ed. 589. The political considerations above referred to are suggestive of the situation which produced a denial of jurisdiction in McCain v. Des Moines, 174 U. S. 168, 19 Sup. Ct. 644, 43 L. Ed. 936.
Finally, let it be admitted that if jurisdiction here rested on diverse citizenship, and the constitutional questions were incidentally raised, it
"The proposition is wholly untenable that, before the state courts in which a case is properly pending can proceed to adjudication in the regular and orderly administration of justice, the courts of the United Slates can be called"on to interpose on the ground that the state courts might so decide as to render their final action unconstitutional.”
This I consider conclusive, for though the Supreme Court did hold that what complainants objected to was not necessarily unconstitutional. it also denied jurisdiction in the Circuit Court, even assuming uaiconstitutionality. In the Defiance* Case jurisdiction was asserted because a certain temporary injunction might he made perpetual by the state court issuing it. If no jurisdiction existed there, though if something were done in a pending suit, the result would be unconstitutional; a fortiori, it is not enough to confer jurisdiction here to assert that if 'complainants had sued in a state tribunal they would have been defeated on the authority of an erroneous decision in another case.
Since the bill must be dismissed for lack of jurisdiction, the decree will not carry costs. Defiance Water Co. v. Defiance, supra; Citizens' Bank v. Cannon, 164 U. S. at page 324, 17 Sup. Ct. 89, 41 L. Ed. 451.
