Mississippi Power & Light Co. v. Federal Power Com.
| Decision Date | 03 November 1942 |
| Docket Number | 10378.,No. 10414,10414 |
| Citation | 131 F.2d 148 |
| Parties | MISSISSIPPI POWER & LIGHT CO. v. FEDERAL POWER COMMISSION. MISSISSIPPI POWER & LIGHT CO. et al. v. SLAFF et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
In No. 10414:
Marcellus Green, Garner W. Green, Sr., and E. R. Holmes, Jr., all of Jackson, Miss., for petitioner.
Charles V. Shannon, Asst. Gen. Counsel, Federal Power Commission, Reuben Goldberg and Leonard Eesley, Attys., Federal Power Commission, and Howard E. Wahrenbrock, Principal Atty., Federal Power Commission, all of Washington, D. C., for respondent.
In No. 10378:
Garner W. Green, Sr., A. M. Nelson, and Forrest B. Jackson, all of Jackson, Miss., for appellant.
George Slaff, Reuben Goldberg, and Leonard D. Eesley, Attys., Federal Power Commission, all of Washington, D. C., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
In Case No. 10,414 Mississippi Power & Light Company petitions this Court to review an order of the Federal Power Commission dated May 27, 1942, and to stay proceedings under the order pending review. The Commission counters with a motion to dismiss the petition for lack of jurisdiction.
The order, after a finding that there was reason to believe that certain books and records of the Power Company had been withheld or destroyed in violation of the Federal Power Act, 16 U.S.C.A. § 791a et seq., and that they were material to the Commission's examination of the costs of the Power Company's properties and a re-classification of its accounts, directed that an investigation be instituted, pursuant to Sect. 307(a) of the Act, to ascertain the whereabouts of the records and whether there have been violations of the Act in reference to the accounts; that named persons conduct the investigation with power to summon and examine witnesses, and require the production of books and papers; and that the Power Company grant free access to its accounts, records and memoranda, for the purposes of the investigation. The petition asserts that the Power Company had no opportunity to be heard before the order was made; that the findings therein were unlawful and in violation of constitutional right; that the order is broader than the Act allows, and confuses matters that ought to be separate; and that the investigators were proceeding with a high hand and in an arbitrary and unconstitutional manner, as set forth in Case No. 10,378, discussed hereafter, especially in that certain salaried employees were being forced to testify against their wish and without access to their counsel, and as expert witnesses, depriving the Power Company of their services and the value of their knowledge as witnesses.
We think this Court has no jurisdiction to review such an order, and consequently no power to grant a stay of proceedings under it. Our normal jurisdiction is over appeals from the District Courts. Special statutes have conferred special powers over other matters. Such special power is granted by Section 313 of the Federal Power Act, 16 U.S.C.A. § 825l, over orders issued by the Federal Power Commission. But it does not extend to mere preliminary or procedural orders such as this one is. Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408.
The petition must be dismissed.
In Case No. 10,378, Mississippi Power Company and certain individuals, officers and employees of that Company who have been called to testify and produce records under the order above discussed, sought relief in the United States District Court in Mississippi where the investigation was conducting. They sued the investigators as individuals, alleging two of them to be citizens and residents of Maryland and two to be citizens and residents of Washington, D. C., all temporarily sojourning in Mississippi, and alleged the suit to be one of a Civil nature between citizens of different States, (the petitioners all being citizens of Mississippi), involving more than $3,000, "and further arises under the Constitution and laws of the United States." The prayers were for injunction and a declaration of rights. The Federal Power Commission and its members are not sued. The judge held, on the point being made by the defendants by motion to dismiss, that there was no jurisdiction over the persons of the defendants in the Southern District of Mississippi and dismissed the complaint. This judgment is appealed from.
We have some misgivings about the citizenship of the two defendants who reside in Washington, but since the petition avers diversity of citizenship we assume they are citizens of some State other than Mississippi. Each is entitled to be sued in the district of which he is an inhabitant, with exceptions not here involved. 28 U. S.C.A. § 112(a). The...
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