272 F. 137 | S.D.N.Y. | 1920
(after stating the facts as above).
There is possibly át stake in this controversy nothing more than the plaintiff’s loss by Poliak’s continued occupation for 25 months, because after that time the “moratorium,” so to speak, expires and all
To this the plaintiff answers that it is the value of the right which it seeks to protect which controls, under such cases as Berryman v. Whitman College, 222 U. S. 334, 32 Sup. Ct. 147, 56 L. Ed. 225, or Glenwood, etc., Co. v. Mutual, etc., Co., 239 U. S. 121, 36 Sup. Ct. 30, 60 L. Ed. 174. That rule has a general application and applies here too, but the right to be protected is not the fee of the apartment, but possession during the operation of the statutes.
As to the proposed trespass of Swann there are two answers: First, it does not appear that Swann has threatened six prosecutions, or indeed anything more than a single one. Second, in any event the proposed prosecution is confessedly only to prevent the plaintiff from disturbing Pollalc and in protection of Poliak’s wrongful holding over. The plaintiff’s right to be protected remains as before nothing but th.e possession which he must leave in Poliak’s hands for 25 months. Therefore, in any aspect the amount in controversy is not $3,000, and. this court is without jurisdiction if that allegation is necessary.
In the Virginia Coupon Cases, 114 U. S. 317, 5 Sup. Ct. 928, 962, 29 L. Ed. 202, subdivision 16 of section 629 of the Revised Statutes was held not to apply under the following circumstances: The plaintiff sued on the case for a wrongful tax levy and alleged that he had paid his taxes in coupons of Virginia bonds and that the public officers had refused to accept such coupons, in violation of article 1, § 10, of the Constitution, i. e., the impairment clause. The court held that his right so to pay in coupons was not a right directly secured by the Constitution and that the only mode of raising that question was by writ of error from the Supreme Court to judgments of the state courts, in which his constitutional rights were disregarded, or under the precursor of subdivision 1 of article 24 of the present Judicial Code, upon, which there was a jurisdictional limit dependent upon the amount in controversy.
In Holt v. Indiana Mfg. Co., 176 U. S. 68, 20 Sup. Ct. 272, 44 L. Ed. 374, the same rule was extended to a case where the plaintiff complained of the unconstitutional assessment of taxes. In that case the court held that where state legislation deprived a party of his property without due process of law, the only jurisdiction of this court was under subdivision 1 of section 24 of the Judicial Code. See, also, Simpson v. Geary (D. C.) 204 Fed. 507; Salander v. Tacoma (D. C.) 208 Fed. 427.
In Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283, the plaintiff successfully relied on subdivision 14 of section 24 under the following circumstances : He was an alien resident in the state of Arizona and complained that his employer threatened to discharge him under the coercion of an act of the state which forbade the employment of more than 20 per cent, of aliens in any establishment or plant. Neither the court below ([D. C.] 219 Fed. 273) nor tire Supreme Court discussed at length this feature of the case, but it is to be inferred from the language of page 39 of the opinion of the Supreme Court that the jurisdiction depended upon the fact that the alien had been admitted to the United States under a federal law and got his privilege of abiding in the United States and in any state of the Union in that way only, and that as such his suit involved the deprivation of a right secured by a law of the United States. At least, so we read that language. We do not understand that the court meant to overrule the Virginia Coupon Cases or Holt v. Indiana Mfg. Co.
Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724, depended upon the right of a father on his own behalf and his two minor children to challenge the constitutionality of the child labor law. The right was presumably his interest in their services, and this might well have been of the jurisdictional value. The point is not discussed and the case is not an authority to the contrary of our present ruling. Similarly Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024.
So far as concerns the defendant Poliak, we cannot see how there can be any question. The plaintiffs’ rights do not depend upon any law of the United States, and if subdivision 14 covers, it is by virtue of the fact that they are “rights, privileges and immunities” “secured” by the Constitution. Article 4, § 2, had always secured to each citizen of each state the privileges and immunities of the citizens of the several states, and the second clause of the Fourteenth Amendment gave federal protection to the privileges and immunities of citizens of the United States. Just what those were the Supreme Court has been chary of saying. The right to pass freely over the whole country is apparently one. Crandall v. Nevada, 6 Wall. 36, 18 L. Ed. 745. Others are enumerated in the Slaughter House Cases, 16 Wall. 36, 79, 21 L. Ed. 394. Those cases, like the Civil Rights Cases, supra, hold that the general right of property does not have its origin in the Constitution and that the Fourteenth Amendment is not constitutive of them. It is in this sense that we understand subdivision 14 to use the word “secure.” Were it not so, all matters arising “under the Constitution,” as prescribed in subdivision 1, would be justiciable under subdivision 14, and the amount in controversy would never be a condition upon our jurisdiction, when a constitutional point was raised. This is certainly not the law.
As regards the defendant Swann, the same result follows. Viewed merely as prospective prosecutions we should have no jurisdiction. It is only as such prosecutions prevent the plaintiff from asserting his property right that they are relevant here. They constitute the effective sanction of the supposedly void statute, the force which coerces the plaintiff to obedience. But the sanction must be measured by the command, obedience to which will avoid it, and the command is only only to allow Poliak to stay in possession. Hence the subject of the controversy remains as to Swann what it is as to Poliak, the value of that possession.
In no aspect does it seem to us, therefore, that the cause is within our jurisdiction, and the motion to dismiss must be granted. As there can be no amendment which will cure the defect, the dismissal will be without any right to plead over.