Mississippi Power & Light Co. v. City of Jackson, 9584.

• Citation: 116 F.2d 924
• Decision Date: 10 March 1941
• Docket Number: No. 9584.,9584.
• Parties: MISSISSIPPI POWER & LIGHT CO. v. CITY OF JACKSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

116 F.2d 924 (1941)

MISSISSIPPI POWER & LIGHT CO. v. CITY OF JACKSON et al.

No. 9584.

Circuit Court of Appeals, Fifth Circuit.

January 17, 1941.

Writ of Certiorari Denied March 10, 1941.

Marcellus Green, Garner W. Green, Forrest B. Jackson, and Andrew M. Nelson, all of Jackson, Miss., for appellant.

J. Morgan Stevens and W. E. Morse, both of Jackson, Miss., for appellees.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

Writ of Certiorari Denied March 10, 1941. See 61 S.Ct. 741, 85 L.Ed. ___.

HUTCHESON, Circuit Judge.

The suit was for a declaratory judgment. The material allegations were (1) that plaintiff had a contract¹ with the City of Jackson to furnish gas from the Jackson Field at rates fixed therein, with an optional provision to seek gas elsewhere when the Jackson Field became insufficient, and furnish it on adequate rates to be fixed; (2) that it had fully complied with the contract; (3) that the Jackson Gas Field is presently and has been for many months, insufficient for the performance of its contract; (4) that having no sufficient supply of contract gas, it has sought, obtained, and is furnishing pipe line gas from foreign fields; (5) that the city pretends that the Jackson Field is still sufficient, refuses to recognize the changed conditions, insists that plaintiff must furnish gas from the Jackson Field at the rates provided in the contract when there is not sufficient gas there to do so and refuses to fix reasonable rates for the pipe line gas plaintiff is compelled to furnish.

The prayer was for a declaration that; "(a) Under its said contract, plaintiff has a right, as at now, and from February 7, 1940, to furnish in said City pipeline gas, and that the rates prescribed by Section 3 of the contract do not apply thereto.", "(b) That under said contract, plaintiff has the right, if the Court be of opinion that said plaintiff may not so furnish pipeline gas, to discontinue furnishing said City and its inhabitants pipeline gas and to leave the said City solely dependent upon that portion of the gas originating from said Jackson field that plaintiff may supply."

The city filed its motion to dismiss, asserting among other grounds (1) this court has no jurisdiction of the subject matter and (5) it is without jurisdiction, because within the provisions of the Johnson Act, 28 U.S.C.A. § 41, Subd. (1), the suit is in effect one to enjoin, suspend or restrain the enforcement, operation or execution of an order of a rate-making body of a political subdivision of the State of Mississippi, to-wit, the City of Jackson.

The district judge without an opinion, and without otherwise stating the reasons for his action, entered an order dismissing the cause for want of jurisdiction. Plaintiff is here challenging the order as entered erroneously, because its complaint showed the requisite diversity of citizenship and jurisdictional amount, and an actual controversy within the provisions of the Federal Declaratory Judgment Act, Jud.Code, § 274d, 28 U.S.C.A. § 400, which was not within the prohibitions of the Johnson Act. We agree with plaintiff.

It is quite plain that the Johnson Act aside, a case for the exercise of federal jurisdiction is well stated. For, within the settled rule of the applicable authorities,² the complaint presents an actual justiciable controversy, appropriate for declaratory judgment relief. The allegations of the complaint, that plaintiff has been compelled to institute and put in effect, reasonable rates for the pipe line gas it is furnishing, aside, every allegation has to do with and is directed to the single question of a determination and declaration as to whether the Jackson Field is insufficient and if it is, as to the rights of the parties under the changed conditions. The allegations as to rates instituted by the plaintiff are not necessary to the tendered issue, no relief is asked as to them and they may and will be disregarded in the consideration and determination of the issue tendered for a declaration, whether the Jackson Field is insufficient and if it is what are the rights of the parties. Maryland Casualty Co. v. Texas Company, 8 Cir., 114 F.2d 952.

While the declaratory judgment act has not added to the jurisdiction of the federal courts, it has added a greatly valuable procedure of a highly remedial nature. Extending by its terms to all cases of actual controversy "except with respect to Federal taxes", it should be, it has been given a liberal construction and application to give it full effect. Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441, presents a striking instance of its use in a suit between tobacco warehouse men, auctioneers and the Secretary of Agriculture, to determine the constitutionality and effect of the Tobacco Act of August 23, 1935, 7 U.S.C. A. § 511 et seq., while a normal, indeed a common use of it has been in the construction of contracts and the declaration of rights under them. It would be difficult we think, to find a case more appropriate than this one for the application of the act or one more aptly illustrating its beneficial uses.

Here the City and the Company, under contractual relations with each other, which oblige the company to furnish gas at rates fixed in the contract while the Jackson Field holds out, and specifically relieve it from so doing when the field has failed, are at loggerheads...