Wolfe v. Hurley

• Decision Date: 29 September 1930
• Docket Number: 384.,No. 383,383
• Citation: 46 F.2d 515
• Parties: WOLFE et al. v. HURLEY, Secretary of War, et al. PHILLIPS v. SAME.
• Court: U.S. District Court — Western District of Louisiana

46 F.2d 515 (1930)

WOLFE et al. v. HURLEY, Secretary of War, et al.

PHILLIPS v. SAME.

Nos. 383, 384.

District Court, W. D. Louisiana, Monroe Division.

September 29, 1930.

Tullis & Wade, of Vidalia, La., and Borah, Himel & Bloch, of New Orleans, La., for complainants.

Philip H. Mecom, U. S. Atty., and J. O. Modisette, Asst. U. S. Atty., both of Shreveport, La., Jeff B. Snyder, of Tallulah, La., and Hudson, Potts, Bernstein & Sholars, of Monroe, La., for respondents.

Before FOSTER, Circuit Judge, and HOLMES and DAWKINS, District Judges.

DAWKINS, District Judge.

These two cases involve identical issues, and will be disposed of in one opinion. In their original bill, complainants allege their ownership and possession of certain plantation property in this district, and that the suit is one of a local nature, arising under the Constitution and laws of the United States, to wit, the Fifth and Fourteenth Amendments and the statute of May 15, 1928, commonly known as the Flood Control Act (33 USCA § 702a et seq.). They allege further that, assuming to proceed under said act, the board of commissioners of the Fifth Louisiana levee district have undertaken to convey and grant to the United States, for the purpose of constructing a new line of levee thereon, rights of way over the lands of petitioners; that, pursuant to said grant, the Secretary of War, Mississippi River Commission, and Board of Engineers of the United States have caused to be surveyed and laid out across said lands said new line of levee, and have let to the Trinityfarm Construction Company a contract for building the same; that the properties of petitioners are not situated upon the shores of any navigable river, nor do they abut on the now existing levees, and hence owe no servitude to the public; that the proposed action of the levee board and agents of the government is without due process of law, and will deprive them of their property without just compensation, in violation of said amendments to the Federal Constitution; that no offer of compensation has been made to them, nor have any proceedings for the expropriation of their lands been instituted; that, in addition to the damages to be inflicted upon them by said unlawful trespass and taking of that part of their lands to be actually occupied by the proposed levee and its borrow pits excavated in procuring earth for such construction, practically the whole of "petitioners' said lands with the improvements thereon would be thrown outside of the said new line of levee * * * thereby subjecting the same to inundation from the waters of the Mississippi river, and thus destroy the same," rendering them valueless; and that, as a result, petitioners will suffer irreparable injury, for which there is no adequate remedy at law, entitling them to equitable relief by injunction.

Petitioner prayed that defendants be ordered to show cause why a restraining order should not issue and upon a hearing for a preliminary injunction, and finally that defendants be perpetually enjoined from "trespassing upon, entering upon and taking possession of said property."

On May 10, 1930, the day set for hearing the application for a restraining order, before the judge of this district, sitting alone, it developed that some of the defendants had not been served and the matter was continued. On June 2d, following, defendant levee board filed a motion to vacate the order to show cause and to dismiss the bill on the ground that "the petition herein alleges the action of this defendant and the Administrative Board of the State of Louisiana, herein sought to be restrained and enjoined, to be unconstitutional and violative of the provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States," which under the act of Congress (28 USCA § 380) could be heard only by a statutory court of three judges, one of whom "shall be a justice of the Supreme Court or a circuit judge," for which reason it averred that the court was without jurisdiction to proceed. Thereafter, on June 9th, the complainants amended their petitions, the main result of which was to attack in the alternative section 6 of article 16 of the state Constitution 1921, as violative of the Fourteenth Amendment to the Federal Constitution.

We quote pertinent allegations of the amended bill, as follows:

"II. In the alternative, and only in the event the Court should find that section 6 of article 16 of said Constitution of the State of Louisiana of 1921 permits and/or authorizes the said Fifth Louisiana Levee Board and/or the United States to appropriate, take possession of, use and/or destroy the said property of complainants, without first paying for same or making adequate provision for such payment, then the said section 6 of said article 16 of said Constitution contravenes the Fifth and Fourteenth Amendments to the Constitution of the United States and is therefore null and void."

"III. That said section 6 of Article 16 of said Constitution of Louisiana of 1921 makes no adequate, reasonable or certain provision for the prompt payment of the lands of complainants which it is proposed to take and destroy — a prerequisite, under the said Fifth Amendment to the Constitution of the United States, to the taking of said property."

"IV. That there is no definite, safe and positive provision in said section 6 of article 16 for the payment of the property which it is proposed to appropriate, but said article merely provides that the levee board `may levy a tax' on the taxable property within the levee district with which to pay for said property, but said levee board is not required to make such levy; that the tax permitted by said article in section 6 thereof, if levied, is limited to one-fourth of one mill on the dollar of the assessed value of the property in the district — which would fall far short of providing a sum adequate to pay for lands in said district so taken and destroyed for levee purposes even at the assessed value of such lands; that said Fifth Louisiana Levee Board is without any means to pay for such lands, has no property or funds out of which under execution judgments for the value of said lands could be enforced, and that to permit the property of petitioners to be thus appropriated without first providing adequate and safe means for paying for said property would be to contravene the provisions of the Fifth Amendment to the Constitution of the United States. Therefore, if said provision of the Constitution of the State of Louisiana of 1921 permits this, then said provision contravenes said Fifth Amendment to the Constitution of the United States, and is void, and said provision is void because it contravenes the Fourteenth Amendment to the Constitution of the United States, and is, therefore, null and void."

Thereupon a hearing was ordered at New Orleans before one of the Circuit Judges of this circuit and a District Judge from another state, sitting with the judge of this district.

The cause finally came on for hearing at New Orleans in the Eastern District of Louisiana, on July 15, 1930, at which time counsel for the Secretary of War, the Mississippi River Commission, and the officers thereof filed a pleading styled "Exception to the Venue," but urging that "this court is without jurisdiction rationæ personæ" as to such defendants "who reside outside the territorial jurisdiction of this court and beyond its limits." There was also filed, subject to the foregoing plea on behalf of the Secretary of War, Chief of Engineers, and president of the Mississippi River Commission, a motion to dismiss the bill upon the ground that it is "a suit essentially against the United States Government," which cannot be sued without its consent; and, in the alternative, that it "sets forth no cause and no right of action."

At the same time the levee board moved to dismiss the suit upon the following grounds: (1) No right or cause of action; (2) lack of equity; (3) that defendant was acting within its legal rights under section 6 of article 16 of the state Constitution, which makes adequate provision for compensating plaintiffs for their property; (4) that the petition does not attack the propriety, necessity for, or good faith of the engineers in locating the levee; (5) that petitioner seeks to interfere by injunctive process with a duly authorized and legally functioning administrative agency of the state acting under its police power for the common welfare, in protecting property from the flood waters of the Mississippi river, which is an attribute of sovereignty; (6) that it also seeks to prevent the carrying out of the comprehensive plan of flood control in the Mississippi river valley, authorized by the Act of Congress of May 15, 1928; and (7) that it does not allege the insufficiency of the provisions of section 6, art. 16, of the state Constitution 1921, to give just compensation to the plaintiffs for the property which it is charged will be taken.

Subject to the said motion to dismiss, defendant levee board answered the rule and admitted the execution of "an assurance in compliance with the form and regulations prescribed by the corps of engineers of the United States army, with respect to the rights of way for a new line of levee over and across complainants' property," that no offers had been made to compensate plaintiffs for their property; but denied the damage which the petitioners allege will be suffered or that plaintiffs are without adequate remedy at law; and also denied the allegation that the state Constitution did not make proper provision for compensating petitioners for the property which would be used. Defendant further averred that the provisions of section 6, art. 16, of the state Constitution 1921, met fully the requirements of the Fourteenth Amendment to the Federal Constitution; that the Fifth Amendment has no application to the case; that the location of the proposed levee was made in compliance...