On Motion for Rehearing.
McMILLAN, District Judge.When this case was before the court on its merits, we dismissed the suit, after hearing the evidence, for the reason that neither the pleadings nor the evidence showed sufficient amount in controversy to confer jurisdiction on the couit.
The matter is now again before the court on motion for rehearing. While complainants have presented their motion forcefully and earnestly, still there is nothing put forward to sustain their position which was not considered and determined on the prior hearing. At great length, they develop the various grounds on which they assert the act to be unconstitutional. If the court had jurisdiction of the case, those are all matters which not only could be, but would have to be, considered. However, complainants, in their motion, obviously misinterpret the effect of the court’s opinion. There was no effort in that opinion to pass, in any way, on the merits of the case. The effect of the holding was simply that neither on the face of the pleadings nor the evidence was the jurisdictional amount shown to be in controversy.
It is unnecessary to review the pleadings or to add anything to what was said with regard to them in the original opinion. By way of evidence, complainants attempted to support the jurisdiction by the testimony of one of the copartners. There was nothing in his evidence to show that the act assailed completely destroyed their business or did anything more than circumscribe and regulate it. He, in no place, testified to the amount .of damage which the business would sustain by the enforcement against it of the regulations provided by the act. On the contrary, on cross-examination, he said that they had made no effort to comply with the act and did not know what it would cost them to do so, and knew of no damage that any other parties engaged in a similar business had suffered by reason of the law.
The question of jurisdiction was raised by respondents in their answer. The burden to establish it rested upon complainants. Since our original opinion was handed down in this case, the Supreme Court has decided the case of McNutt, Governor of the State of Indiana, et al. v. General Motors Acceptance Corporation, 56 S.Ct. 780, 80 L.Ed. -. The opinion in that case thoroughly sustains the action of this court in dismissing the bill here. The motion for rehearing will be overruled.