are Pennsylvania citizens, and no attempt to show diversity has been made.
Since we do not derive jurisdiction directly from the Constitution, it is clear that our authority must be found in Congressional enactments. Since diversity is not claimed, warrant would have to be found in Section 1331 of the Judiciary Act:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $ 3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States. June 25, 1948, c. 646, 62 Stat. 930.' Tit. 28 U.S.C.A. § 1331. (Emphasis supplied.)
Allegations of the complaints as to denials of due process and equal protection of the laws under the Fifth Amendment have apparently been abandoned. It is therefore taken as conceded that no unconstitutional act of Congress or other purely federal action is involved, which alone -- of course -- would raise Fifth Amendment questions. Palko v. State of Connecticut, 1937, 302 U.S. 319, 322, 58 S. Ct. 149, 82 L. Ed. 288.
Plaintiffs presently complain that they are being denied equal protection of the law, and being deprived of property without due process, in violation of the guarantees of the Fourteenth Amendment. Then in the next breath they assert that the Addendum was promulgated without lawful authority, and that arbitration under color of the contract procedure has been administered arbitrarily and without authorization. As to these alternate grounds of complaint, it seems that the plaintiffs are on the horns of a dilemma either of which is fatal to the jurisdiction of the Court.
The difficulty, of course, is that the Fourteenth Amendment, by its very terms as well as unbroken interpretation, is directed solely against state action. Virginia v. Rives, 1879, 100 U.S. 313, 25 L. Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 346, 25 L. Ed. 676.
Next, this is a Court of purely original jurisdiction. State action cannot be reviewed here; that power is reserved to the Supreme Court of the United States. E.g. Heller v. Kreider, 3 Cir., 1938, 98 F.2d 106, 107. The question of state deprivation of due process cannot be determined until the conclusion of the course of justice in its courts. Frank v. Mangum, 1914, 237 U.S. 309, 328, 35 S. Ct. 582, 59 L. Ed. 969; Ex parte Meeks, D.C.W.D.Ky.1927, 20 F.2d 543. Yet the unsuccessful local court attack on the Addendum (very similar in terms to the action before this Court), was dismissed in the Court of Common Pleas, and not even appealed. Glassman v. Philadelphia, 1956, 9 Pa. Dist. & Co. R.2d 495. Although this controversy has been called a 'cornucopia of litigation' by virtue of the many pending proceedings in the local stages of arbitration or litigation, it is clear that the Commonwealth of Pennsylvania, through its Supreme Court, has not been asked or permitted to act.
Until the remedial procedures of the state have been exhausted, however, there can be no federal question on Fourteenth Amendment grounds. And, as stated, if and when that time comes, the final action of the Commonwealth will not be reviewable in this Court of original jurisdiction.
The seeming exceptions to the foregoing rule which were argued by plaintiffs are not applicable. One such type of case involves segregation and civil rights which involve federal rights which federal courts may protect even though state remedies have not been exhausted. E.g. Westminster School Dist. of Orange County v. Mendez, 9 Cir., 1947, 161 F.2d 774, 781. The other type of case in which exceptional intervention by federal courts has been permitted are the rare and isolated instances in the past where relief against confiscatory rates has been permitted on behalf of public utilities, such as Home Tel. & Tel. Co. v. City of Los Angeles, 1912, 227 U.S. 278, 33 S. Ct. 312, 57 L. Ed. 510 and Railroad and Warehouse Commission of Minnesota v. Duluth St. Ry. Co., 1926. 273 U.S. 625, 47 S. Ct. 489, 71 L. Ed. 807. They cannot be deemed applicable here, in view of their remoteness to the factual situations at hand, and the more recent decisions in directly comparable cases, e.g. Heller v. Kreider, 3 Cir., 1938, 98 F.2d 106.
The alternate contention is that the Addendum and the proceedings conducted under it are without color of legislative or executive authority. If that allegation be taken as literally true, all the more is there no Fourteenth Amendment question. That guarantee is directed solely against action by a state, to the exclusion of action by private individuals. Green v. Elbert, 8 Cir., 1894, 63 F. 308, 309; Mason v. Hitchcock, 1 Cir., 1939, 108 F.2d 134, 135 and cases cited.
Parenthetically, however, it may be observed that it is rare for action by public officials, clothed with apparent authority, to be held to be purely personal and private acts. For constitutional purposes:
'* * * the subject must be tested by assuming that the officer possessed power if the act be one which there would not be opportunity to perform but for the possession of some state authority.' Home Tel. & Tel. Co. v. Los Angeles, 1912, 227 U.S. 278, 288-289, 33 S. Ct. 312, 315.
Another asserted jurisdictional ground of these suits, their posture or aspect as class or taxpayers' suits, is insufficient as a matter of settled law. Plaintiffs allege that various federal funds are allocated to municipalities, including the City of Philadelphia, and that these funds are used to pay for public works let out under contracts containing the Addendum. Cataloguing the numerous statutes under which it is possible for municipalities to receive federal aid, they assert that the manner in which the City regulates the bidding on projects, financed in some part by these federal funds, presents a question cognizable here.
The precise point was presented in this District and Circuit twenty years ago. That a federal question is presented when federal funds are contributed to local public works was argued by the plaintiff taxpayer in Heller v. Kreider, 3 Cir., 1938, 98 F.2d 106. Plaintiff sought to enjoin his township from constructing a school building and brought his action in this District, contending that the use of federal funds invested the case with a basis for federal jurisdiction. It was shown that over forty thousand dollars had been contributed by the federal government toward the construction of the Lancaster County consolidated school in question. The court of appeals held that the district court had no power to intervene in the purely local matter, not only as a matter of comity (since the matter was already in local litigation) but also because no federal question was involved.
Furthermore, ever since the decision in Massachusetts v. Mellon, 1923, 262 U.S. 447, 487, 43 S. Ct. 597, 67 L. Ed. 1078, it has been the law that a taxpayer does not have standing to raise the question of the manner in which federal funds are expended. The taxpayers' interests have been held to be too remote and to lack the essential elements of a justiciable controversy. Alabama Power Co. v. Ickes, 1938, 302 U.S. 464, 478, 58 S. Ct. 300, 82 L. Ed. 374.
More general is the principle repeatedly stated by the United States courts that there must be real substance to the federal question; it must appear clearly and specifically rather than by inference or suggestion. McCartney v. State of West Virginia, 4 Cir., 1946, 156 F.2d 739, 741. If the concept of 'federal question' is to have any meaning, the court must look beyond the verbiage of a complaint to the substance of the plaintiff's grievance, and dismiss the action where no real basis for federal jurisdiction exists. Polhemus v. American Medical Ass'n, 10 Cir., 1944, 145 F.2d 357, 359.
With those principles in mind, other grounds asserted in the pleadings and arguments may be dismissed with one illustration of the general type of argument made to invoke our jurisdiction. Virtually conceding that there is no direct authority for intervention by a District Court of the United States in a case like the present, Lincoln Mills was cited as an example of the ways in which federal law is adapting to novel situations. Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972. That case, it is conceded, interprets an act of Congress in a broader light than it had been theretofore viewed. Counsel, however, recognized that it was clearly a case within the provisions of the Judiciary Act, since it arose under the laws of the United States. Specifically, it concerned § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C.A. § 185. It presented the question of enforcement, in a federal district court, of a collective bargaining agreement's provisions for handling grievances, the ultimate step of which was arbitration. Grievances were processed under the specified procedure until the union's demands were finally denied by the employer. The Supreme Court of the United States held that a federal district court had jurisdiction, under the statute, to compel arbitration. It also held that another Act of Congress, the Norris-La Guardia Act, 29 U.S.C.A. § 101 et seq., had not withdrawn jurisdiction to compel arbitration of labor disputes in an industry affecting commerce as defined in the Act.
The plaintiff's cases are the very reverse of the illustration they cited. Obviously, the contracts in question are not claimed to be subject to the provisions of the Labor Management Relations Act. Again, of course, the plaintiffs are not seeking to compel arbitration under their contract. To the contrary, they are trying to avoid, by a form of collateral attack, the very arbitration method for which they contracted.
It would be profitless to pursue the contentions further, in the face of settled law on the jurisdictional matter. Since the question of jurisdiction is decisive, there is no necessity to consider any other aspect of the case. Mason v. Hitchcock, 1 Cir., 1939, 108 F.2d 134, 136.
For the foregoing reasons, it is ordered that the defendants' motions to dismiss be and the same are hereby granted, and it is ordered that the several complaints of the plaintiffs herein be and the same are hereby dismissed.
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