Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
On April 1, 1946, the plaintiffs, O. G. Tiedeman and associates, filed their complaint in the District Court of the United States in and for the Northern District of Illinois, Eastern Division. The complaint was brought under the terms of the War Labor Disputes Act, 50 U.S.C.A.Appendix, § 1508. Defendants moved to strike the complaint or certain parts thereof.
On December 23, 1946, plaintiffs filed an amended complaint. On January 22, 1947, the defendants again filed their motion to dismiss the amended complaint, urging, in addition to other grounds for their motion, that the War Labor Disputes Act upon which the complaint was based, was unconstitutional. Judge Elwyn R. Shaw, of said district, on May 29, 1947, denied the defendants' motion to dismiss the amended complaint and ordered that the defendants answer the same within twenty days. Subsequently, on June 9, 1947, in order to give the Government an opportunity to file briefs in the constitutional question raised by the motion to dismiss, Judge Shaw vacated his order denying defendants' motion to dismiss. The Government was given until August 1, 1947, to file its briefs.
Judge Shaw became ill, and on October 6, 1947, the cause was transferred to the calendar of Judge John P. Barnes. The brief and argument of the Government in support of the constitutionality of the War Labor Disputes Act was filed on November 3, 1947, and on October 14, 1947, an order was entered setting hearing on defendants' motion to dismiss for November 10, 1947, and directing that the trial of the cause be set for December 16, 1947. The cause was stricken from the trial call by Judge Barnes on December 22, 1947, and on March 31, 1948, a memorandum was filed by Judge Barnes directing that Count 1 of the complaint be stricken with leave to amend, and that Count 2 be dismissed with leave to amend.
The plaintiffs filed their second amended complaint on June 30, 1948.
The defendants again filed their consolidated motions to dismiss the second amended complaint. Judge Barnes took the matter under advisement, and on December 23, 1948 entered a memorandum in which he found Counts 1 and 2 of the second amended complaint insufficient, and on January 27, 1949, entered an order that the second amended complaint be dismissed with prejudice.
The memorandum opinion of Judge Barnes states:
"Count one is insufficient because it fails to allege that the transportation in question by Tiedeman was 'found by the President of the United States as being contracted for in the prosecution of the war.'
"Count two is based upon a diversity of citizenship. Plaintiffs Edward J. Tiedeman, Francis L. Peacock, Joseph E. Hartung and Edward Miller are residents and citizens of the State of Illinois. Accordingly, Count two is insufficient."
Plaintiffs-appellants concede on this appeal that Count two was properly dismissed but insist that the District Court erred in dismissing Count one with prejudice. Defendants-appellees have abandoned the contention that the War Labor Disputes Act is unconstitutional, but insist that Count one was properly dismissed by the trial court.
Therefore the chief question involved in this appeal is: Does Count one of the second amended complaint contain, in addition to the necessary jurisdictional averments, a statement of the facts, upon which plaintiffs base their claim for relief, and does it demand proper relief? Put in different language the question is: Does the Count state grounds for federal jurisdiction and does it allege facts which sufficiently apprise defendants of the grounds upon which plaintiffs claim the relief prayed so that they may answer and prepare to contest the same?
We propose to consider, at the outset, the finding of the trial court, that the complaint fails to allege that the transportation by plaintiff was found by the President of the United States as being contracted for in the prosecution of the war.
Count one of the second amended complaint alleges: That the plaintiffs, doing business as Associated Freight Forwarders, were engaged in the transportation of commodities by motor vehicle over regular routes in the States of Illinois, Indiana, Ohio, and Pennsylvania, pursuant to authority granted by the Interstate Commerce Commission; that the plaintiff rendered transportation services to the armed forces of the United States and to war defense plants (enumerating some 6 or 7 plants); that said transportation services were rendered in carrying out the terms of certain war contracts entered into between the owners and operators of the plants and the Government of the United States of America, and pursuant to contracts for hire between the plaintiff and said owners or operators of the defense plants; that these services constituted 65% of plaintiffs' business; that among articles so transported were motors, copper, wire, electric products, steel products, oil, machinery, steel, springs, chemicals, valves and fittings, etc., some or all of which were found by the President of ...