City of Thibodaux v. Louisiana Power & Light Company, No. 16870.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Marshall it was said |
| Citation | 255 F.2d 774 |
| Parties | CITY OF THIBODAUX, Appellant, v. LOUISIANA POWER & LIGHT COMPANY, Appellee. |
| Docket Number | No. 16870. |
| Decision Date | 15 July 1958 |
255 F.2d 774 (1958)
CITY OF THIBODAUX, Appellant,
v.
LOUISIANA POWER & LIGHT COMPANY, Appellee.
No. 16870.
United States Court of Appeals Fifth Circuit.
April 18, 1958.
As Amended and Modified on Denial of Rehearing July 15, 1958.
Theo. F. Cangelosi, Baton Rouge, La., Remy Chiasson, Thibodaux, La., Wollen J. Falgout, City Atty., Thibodaux, La., Louis F. Claiborne, New Orleans, La., for appellant.
J. Raburn Monroe, Andrew P. Carter, Monroe & Lemann, Melvin I. Schwartzman, New Orleans, La., Harvey Peltier, Peltier & Peltier, Donald Peltier, Thibodaux, La., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
JONES, Circuit Judge.
The City of Thibodaux, Louisiana, supplied electric current to consumers within its territorial area. It extended its boundaries and annexed an area which had been supplied with electric current by the Louisiana Power & Light Company. The City brought a suit for expropriation in a Louisiana District Court against the power company seeking to acquire the electric distribution facilities situate in the annexed area. The City asserted that the power to condemn had been granted by a legislative enactment of 1900 which provided:
"Any municipal corporation of Louisiana may expropriate any electric light, gas, or waterworks plant or property whenever such a course is thought necessary for the public interest by the mayor and council of the municipality. When the municipal council cannot agree with the owner thereof for its purchase, the municipal corporation through the proper officers may petition the judge of the district court in which the property is situated, describing the property necessary for the municipal purpose, with a detailed statement of the buildings, machinery, appurtenances, fixtures, improvements, mains, pipes, sewers, wires, lights, poles and property of every kind, connected therewith, and praying that the property described be adjudged to the municipality upon payment to the owner of the value of the property plus all damages sustained
in consequence of the expropriation. Where the same person is the owner of both gas, electric light, and waterworks plants, or of more than one of any one kind of plant, the municipal corporation may not expropriate any one of the plants without expropriating all of the plants owned by the same person.
"All claims for damages to the owner caused by the expropriation of any such property are barred by one year\'s prescription, running from the date on which the property was actually taken possession of and used by the political corporation." L.S.A. Title 19, § 101.
Diversity of citizenship formed the basis for removal to the United States District Court.
The power company, among other things, alleged in its answer that it had a franchise to serve the area with electric current and that if the quoted statutory provision be so construed as to permit the expropriation of its property it would be unconstitutional and invalid as impairing the obligation of its franchise contract and the taking of its property without due process of law. In addition to these questions arising under the Federal Constitution, the appellee asserted that the Louisiana statute violated four separate provisions of the Louisiana Constitution. A pre-trial conference was held. The district court concluded that since the statute had not been construed nor its validity passed upon by the Louisiana courts, the proceedings in Federal court should be stayed until a decision interpreting the Act by the Supreme Court of Louisiana could be obtained through the Louisiana Declaratory Judgment procedures. City of Thibodaux v. Louisiana Power & Light Co., D.C., 153 F.Supp. 515. By the district court's order further proceedings were stayed until the Supreme Court of Louisiana has been afforded an opportunity to interpret the Louisiana statute. The City appealed from the stay order. The power company has moved to dismiss the appeal on the ground that the order is not a final judgment and hence not appealable.
Under the Federal statute1 only civil actions may be removed from a state to a Federal Court. Although some state condemnation proceedings may not be, at every stage, removable civil actions,2 the expropriation suit authorized by the Louisiana act is a controversy between parties which is to be submitted to a judicial tribunal for determination by an exercise of the judicial power. Such proceeding is a civil action and so may be removed where, as here, diversity of citizenship and jurisdictional amount are present.3
The question is raised as to whether the order is one from which an appeal can be taken. The stay order of the district court is not a final decision under 28 U.S.C.A. § 1291.4 Is it then an interlocutory order granting or denying an injunction which is appealable under 28 U.S.C.A. § 1292? It is not an injunction in form. Whether or not it is injunctive is a question which is not without difficulty.5 We think that the
"Amid the existing confusion of decisions it is hard to proceed with assurance; but we take it as now settled that the grant, or denial, of a stay in an action that would have been a suit in equity before the fusion of law and equity is now not appealable under § 1292(1) of Title 28; but, if the order is in an action that would have been an action at law before that time, it is appealable." Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 1956, 238 F.2d 892, 894.6
The Supreme Court has had occasion to consider the nature of condemnation proceedings. It has said:
"The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute; but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land in virtue of the government\'s eminent domain, and determining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court." Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.7
The order entered by the district court granted a stay in an action at law and was an appealable order under 28 U.S. C.A. § 1292(1).
In an early and celebrated opinion by Chief Justice Marshall it was said:
"It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must...
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Big Bend Tel. Co. v. Halo Wireless, Inc. (In re Halo Wireless, Inc.), Cause No. A–11–CV–721–LY.
...Administrative proceedings, even court-like ones, are not necessarily removable at any moment. City of Thibodaux v. La. Power & Light Co., 255 F.2d 774 (5th Cir.1958) (“some state condemnation proceedings may not be, at every stage, removable civil actions”). Posture may dictate that a proc......
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Louisiana Power Light Company v. City of Thibodaux, No. 398
...an expropriation proceeding, and that in any event no exceptional circumstances were present to justify the procedure even if available. 255 F.2d 774. We granted certiorari, 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 120, because of the importance of the question in the judicial enforcement of t......
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Harris Cnty. v. Union Pacific R.R. Co., Civil Action No. H–10–4363.
...at 246, 25 S.Ct. 251. Administrative proceedings, by contrast, are not necessarily removable. City of Thibodaux v. La. Power & Light Co., 255 F.2d 774 (5th Cir.1958) (holding that “some state condemnation proceedings may not be, at every stage, removable civil actions.”); Chicago Rock Islan......
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Empire Pictures Distributing Co. v. City of Fort Worth, No. 17808.
...June 8, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. 3 City of Thibodaux v. Louisiana Power & Light Company, 153 F.Supp. 515. 4 Id., 255 F.2d 774. 5 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 6 Creasy v. Lawler, 389 Pa. 635, 133 A.2d 178. 7 Creasy v. Stevens, 160 F.Supp. 404. 8 In his diss......
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Big Bend Tel. Co. v. Halo Wireless, Inc. (In re Halo Wireless, Inc.), Cause No. A–11–CV–721–LY.
...Administrative proceedings, even court-like ones, are not necessarily removable at any moment. City of Thibodaux v. La. Power & Light Co., 255 F.2d 774 (5th Cir.1958) (“some state condemnation proceedings may not be, at every stage, removable civil actions”). Posture may dictate that a proc......
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Louisiana Power Light Company v. City of Thibodaux, No. 398
...an expropriation proceeding, and that in any event no exceptional circumstances were present to justify the procedure even if available. 255 F.2d 774. We granted certiorari, 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 120, because of the importance of the question in the judicial enforcement of t......
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Harris Cnty. v. Union Pacific R.R. Co., Civil Action No. H–10–4363.
...at 246, 25 S.Ct. 251. Administrative proceedings, by contrast, are not necessarily removable. City of Thibodaux v. La. Power & Light Co., 255 F.2d 774 (5th Cir.1958) (holding that “some state condemnation proceedings may not be, at every stage, removable civil actions.”); Chicago Rock Islan......
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Empire Pictures Distributing Co. v. City of Fort Worth, No. 17808.
...June 8, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. 3 City of Thibodaux v. Louisiana Power & Light Company, 153 F.Supp. 515. 4 Id., 255 F.2d 774. 5 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 6 Creasy v. Lawler, 389 Pa. 635, 133 A.2d 178. 7 Creasy v. Stevens, 160 F.Supp. 404. 8 In his diss......