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ELLERS v. LATIMER

March 16, 1942

ELLERS
v.
LATIMER et al.



The opinion of the court was delivered by: COOPER

COOPER, District Judge.

This is a suit by the plaintiff to have the District Court in this District review the decision of the Railroad Retirement Board denying the plaintiff a pension and to direct the Board to grant the plaintiff a pension under the Railroad Retirement Act of 1937, § 10, 50 Stat. 314, 45 U.S.C.A. § 228j.

The plaintiff moves to strike out certain denials in the defendant's answer as in direct conflict with the proof in the case and for a summary judgment for the plaintiff reversing the action of the Railroad Retirement Board and directing the Board to grant the plaintiff the pension sought.

 The defendant moves for summary judgment dismissing the action in accordance with Rule 56 of the Rules of Civil Procedure for the District Court of the United States, 28 U.S.C.A. following section 723c.

 Among the grounds upon which the defendant bases its motion is that this Court has no jurisdiction over the three individual defendants constituting the Railroad Retirement Board.

 Upon the argument the plaintiff conceded that this Court did not have jurisdiction of the three individual defendants and consented that the action be dismissed as to the three individual defendants and that question is now out of the case.

 One of the chief grounds upon which the defendant relies in this motion for summary judgment dismissing the action is that the District of the United States, for the Northern District of New York, has no jurisdiction of the Railroad Retirement Board, for the reason that no office of the Railroad Retirement Board exists within the Northern District of New York, within the meaning of the Statute.

 That there is an office of the Railroad Retirement Board in the City of Albany in the Northern District of New York is not disputed but the defendant asserts that this is not an office within the meaning of the Statute.

 The complete text of the jurisdictional section is as follows:

 "Section 11. An employee or other person aggrieved may apply to the district court of any district wherein the Board may have established an office or to the District Court of the United States for the District of Columbia to compel the Board (1) to set aside an action or decision of the Board claimed to be in violation of a legal right of the applicant or (2) to take action or to make a decision necessary for the enforcement of a legal right of the applicant. Such court shall have jurisdiction to entertain such application and to grant appropriate relief. The decision of the Board with respect to an annuity, pension, or death benefit shall not be subject to review by any court unless suit is commenced within one year after the decision shall have been entered upon the records of the Board and communicated to the person claiming the annuity, pension, or death benefit. The jurisdiction herein specifically conferred upon the Federal courts shall not be held exclusive of any jurisdiction otherwise possessed by such courts to entertain actions at law or suits in equity in aid of the enforcement of rights or obligations arising under the provisions of this Act [sections 228a-228r] or the Railroad Retirement Act of 1935 [former sections 215-228a of this title]." This is now Section 228k.

 The defendant cites no case deciding what is an office of the Railroad Retirement Board within the meaning of Section 11.

 The cases cited by the defendant in general held that a Court has no jurisdiction with respect to persons or things which exist outside of and not within, the territorial limits of the territory in which the Court has jurisdiction. Such cases have no analogy here because there is a statute here giving the Court jurisdiction and whether or not the Court has jurisdiction depends upon whether or not there is an office of the Railroad Retirement Board in this District within the meaning of the Statute.

 The defendant cites one case which it holds is in close analogy and to which attention will be given. This is the case of Hovey v. De Long Hook & Eye Company, 211 N.Y. 420, 105 N.E. 667.

 This case arose under Section 113 of the Stock Corporation Law of the State of New York, Consol. Laws, c. 59. This Section provides that every foreign corporation except a moneyed or railroad corporation, having an office for the transaction of business in this state, shall keep therein a book to be known as a stock book, containing names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their place of residence, the number of shares held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon.

 This statute provides that every foreign corporation having an office for the transaction of business in this state, which refuses or neglects to keep such stock books or to keep any stock book open for inspection, as under the statute required, shall forfeit $50.00 per day for every day that it shall so neglect or refuse.

 It appears in the Hovey case that the defendant was a Pennsylvania Corporation, which sole its goods in the State of New York through traveling salesmen, who took orders which were transmitted to its office in Pennsylvania, subject to approval, and which, if accepted, were filled by shipment from the factory in Pennsylvania.

 Although it rented an office in the city of New York, the arrangement was for the purpose of furnishing headquarters for salesmen traveling in that locality, where they might meet customers and conduct correspondence. No bank account was maintained in that city and no books of account or goods were sold or kept there and no collections for goods sold were made from that place. No stock transfer books were kept there and no meeting of creditors, officers or directors was ever held there.

 The Court of Appeals held that the defendant foreign corporation did not maintain an office for the transaction of business in this State within the meaning of Section 113.

 The case now under consideration contains no such condition or limitation, or description, or qualification of an office as defined in the State Statute.

 A careful consideration of this case shows that it has no real analogy to the case at bar because of the fact that the Federal statute merely provides an "office" with no other words.

 Defendants seem to place much reliance upon regulations adopted by the Railroad Retirement Board claimed to be adopted pursuant to the authority of the statute and to be within the statute.

 The only provisions of such regulation which has any interest here is the regulation relating to offices of the Railroad Retirement Board. The regulation effective as of June 1, 1938 contains the following: "Section 62:15. Office of the Board -- The only office established by the Board is in the District of Columbia (Headquarters of filed forces are not offices within the meaning of this section). (Section 10, 50 Stat. 314; 45 U.S.C. Supp. III, 228-j [45 U.S.C.A. § 228j])."

 Subdivision 4 of 228j, authorizes the Board as follows: "The Board shall establish and promulgate rules and regulations to provide for adjustment of all controversial matters arising in the administration of such section, with power as a board or through any member or designated subordinate thereof; to require and compel the attendance of witnesses, administer oaths, take testimony, make all necessary investigations in any manner involving annuities and other payments and shall maintain such offices, provide such equipment, furnishing supplies, services and facilities and employing such individuals and providing for their compensation and expenses as may be necessary for the proper discharge of its functions."

 These regulations were declared to supersede all regulations promulgated on November 22, 1937, December 10, 1937, December 31, 1937, January 17, 1938, January 25, ...


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