Appeal from the District Court of the United States for the Northern District of Indiana.
Messrs. Robert S. Marx and Frank E. Wood, both of Cincinnati, Ohio, for appellant.
Complainant brought this suit to restrain the enforcement of an order of the Milk Control Board of the State of Indiana, made June 12, 1936, fixing selling prices of milk in the Fort Wayne Marketing Area. Upon the hearing by three judges (28 U.S.C. 380 (28 U.S.C.A. 380)) of a motion for a preliminary injunction, the District Court dismissed the cause for the want of jurisdiction upon the ground that the requisite jurisdictional amount was not involved. The court made the following findings:
In granting a temporary stay pending appeal to this Court, the District Court found that the enforcement of the order would 'cause immediate and irreparable injury to the business of the complainant.'
In determining whether the requisite jurisdictional amount is in controversy, where it does not appear that the complainant is deprived of its license or is prevented by the regulation from prosecuting its business, the question is not the value or net worth of the business, but the value of the right to be free from the regulation, and this may be measured by the loss, if any, that would follow the enforcement of the rule prescribed. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178 , 56 S.Ct. 780. [299 U.S. 300, 302] In order to support its contention, complainant seeks to capitalize its earnings and thus to arrive at the value of the part of the business affected by the order. But that basis of ascertaining a capital loss is not available to complainant here, as the statute, and with it the order, expire by limitation on July 1, 1937. The hurt by reason of the regulation does not appear to be greater than the loss sustained while the statute is in operation. The decree of the District Court is affirmed.
Mr. Justice STONE took no part in the consideration or decision of this case.