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ANDERSON v. A. & W. TRACTOR PRODUCTS

February 19, 1960

RUSSELL ANDERSON, PLAINTIFF,
v.
A. & W. TRACTOR PRODUCTS, INC., A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Poos, District Judge.

Plaintiff, Russell Anderson, filed suit against defendant, A. & W. Tractor Products, Inc., a corporation, on November 6, 1959, alleging a negligence cause of action occurring on November 13, 1957, and bases jurisdiction on the theory of diversity of citizenship. The defendant's responsive pleading is a limited appearance moving the court to dismiss, setting up the fact that defendant is a Delaware corporation with its principal and only place of business in the Village of Colfax, McLean County, Illinois, and that by reason thereof diversity of citizenship does not exist.

Congress, by Act effective July 25, 1958, amended Section 1332 of the Judicial Code, Title 28, Section 1332, pocket part p. 66, 72 Stat. 415. The pertinent provision of the amendment, insofar as involved here, provides in subparagraph c thereof as follows:

    "(c) For the purposes of this section and section
  1441 of this title, a corporation shall be deemed a
  citizen of any State by which it has been
  incorporated and of the State where it has its
  principal place of business."

Plaintiff, in response to the motion to dismiss, filed and served a "Notice of Constitutional Issue" accompanied by a "Demand for Statutory Three Judge Court and prayer for Declaratory and Injunctive Relief." The demand alleges that the above quoted Section is unconstitutional for the following reasons:

(1) that at the time the cause of action arose, plaintiff had a right to have his controversy heard by the District Court of the United States, which right is substantial;

(2) that under Article III, Section 1, the Constitution provides:

    "The judicial Power of the United States, shall be
  vested in one Supreme Court, and in such inferior
  Courts as the Congress may, from time to time ordain
  and establish,"

and that under this provision the inferior courts constituted only a mechanism by which the number and distribution of such courts could be determined, in order to have an effective starting mechanism; that under this provision of the Constitution it was not intended to confer upon Congress, after Congress had established the district court's power, the power to diminish their function, or to usurp their judicial prerogatives; that in so enacting the amendment, Congress, the legislative branch, has encroached upon the judicial branch of government; and such alleged encroachment unconstitutionally gives Congress the right to change, modify or alter the jurisdiction of such courts after Congress had established them, and for all practical purposes gives Congress the power to abolish them or to render them ineffective, and subject to legislative control and domination, which would effectively destroy the basic principles of governmental operation as established by the Constitution.

(3) that under Article III, Section 2 of the Constitution, it is expressly provided that,

    "The judicial Power shall extend to all Cases, in
  Law and Equity * * * between citizens of different
  States,"

and that thereunder the amendment in question is a clear invasion of a judicial power and beyond the power of Congress to enact and by reason thereof is unconstitutional and void;

(4) that if such enactment is given retroactive effect, it would destroy the right of a litigant of access to this court and thereby destroy the cause of action of the plaintiff.

The prayer of the demand is that the court examine into the constitutional question so alleged to exist, and that a three judge court be invoked as provided by Sections 2282-2284, 28 U.S.C. to hear and determine the constitutional question by giving injunctional relief. These provisions are as follows:

    "An interlocutory or permanent injunction
  restraining the enforcement, operation or execution
  of any Act of Congress for repugnance to the
  Constitution of the United States shall not be
  granted by any district court or judge thereof unless
  the application therefor is heard and determined ...

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