Gentry v. Howard

• Decision Date: 25 October 1973
• Docket Number: Civ. A. No. 15759.
• Citation: 365 F. Supp. 567
• Parties: Wayne GENTRY v. W. L. HOWARD, Mayor of the City of Monroe, Louisiana, et al.
• Court: U.S. District Court — Western District of Louisiana

365 F. Supp. 567

Wayne GENTRY v. W. L. HOWARD, Mayor of the City of Monroe, Louisiana, et al.

Civ. A. No. 15759.

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

October 25, 1973.

COPYRIGHT MATERIAL OMITTED

Paul Henry Kidd, Frank J. Kenner, Kidd, Katz & Halpin, Monroe, La., for plaintiff.

Haynes L. Harkey, Jr., Hayes, Harkey, Smith & Cascio, Pipes & Pipes, Monroe, La., for defendants.

DAWKINS, Senior District Judge.

I. NATURE OF THE CASE

This civil action is premised upon §§ 1983 and 1985 of the Civil Rights Act and §§ 2201 and 2202 of the Declaratory Judgment Act, jurisdiction being based upon 28 U.S.C. § 1343(3).

The original plaintiff here was Wayne Gentry, an individual. The defendants were W. L. Howard, H. W. McSherry, W. D. H. Rodriguez, and J. C. Kelly, Jr. (who were, respectively, Mayor and Commissioner of Public Health and Safety, Commissioner of Finance and Utilities, Commissioner of Streets and Police Chief, at the time this action was instituted), and the City Council of Monroe.

Injunctive relief is sought to restrain defendants from prosecuting Gentry under the City's ambulance ordinance, from enforcing the ordinance, and from operating an ambulance service itself. A declaratory judgment is sought decreeing the City's ambulance ordinance to be unconstitutional, prohibiting the City from entering the ambulance business in the absence of a compelling public interest, and prohibiting it from regulating unreasonably the ambulance business. A money judgment of $155,897.00 against defendants individually, and/or in their official capacities, is sought.

An initial motion to dismiss was filed by defendants challenging this Court's jurisdiction of the subject matter and urging that Gentry, an individual, was without right to seek relief on behalf of Gentry's Ambulance Service, Inc., a corporation. The motion to dismiss for lack of jurisdiction was overruled, but we ordered the corporation to be joined as a party plaintiff, referring Gentry's right to appear as a plaintiff to the merits.

The matter having been tried without jury, we now make and file our Findings of Fact and Conclusions of Law:

II. FINDINGS OF FACT

1. In early 1967, the funeral homes in the City of Monroe, which previously provided most of the ambulance service in the area, discontinued their ambulance activities because of the financial impact of their recent application of federal wage and hour regulations.

2. An ensuing influx of entrepreneurs of all sorts created a situation not in the public interest in having safe, reliable ambulance service. Cut-throat competition and unregulated use of equipment resulted in danger to the public as well as to ambulance patrons.

3. April 8, 1969, in response to complaints by police officials and a group of doctors, the Commission Council of Monroe adopted an ordinance comprehensively regulating ambulance service within the City, requiring a certificate of public convenience and necessity to engage in such business, and fixing a schedule of maximum charges. This ordinance, by its own terms, became effective ninety days after adoption.

4. May 16, 1969, (Richard) Wayne Gentry, a plaintiff here, organized a corporation named Gentry's Ambulance Service, Inc., he being the sole stockholder, and transferred to it the assets, other than accounts receivable, of the ambulance business he had been operating under a trade name.

5. June, 1969, Gentry's Ambulance Service, Inc., made application to the City for a certificate of public convenience and necessity for operation of an ambulance business, and a certificate was issued to it by the City, effective July 8, 1969. This certificate initially was issued, through error, in the name of Wayne Gentry, doing business as Gentry's Ambulance Service, but a corrected certificate was issued in the name of the corporation following a hearing June 30, 1970, later described herein.

6. No certificate was issued by the City to any other applicant following adoption of its ordinance and prior to institution of this suit (or since, so far as the record reflects). However, the certificate granted to the Gentry corporation was understood not to be exclusive.

7. Several months after beginning operations, the corporation and Gentry, its President, began publishing newspaper advertisements, and otherwise disseminating statements that the rates fixed by the ordinance were inadequate; that the corporation was losing money, and that relief must be forthcoming if satisfactory ambulance service was to be maintained. Three alternatives were mentioned by complainants: (1) an increase in ordinance rates, (2) a public subsidy to the corporation, or (3) initiation of a public ambulance service.

8. November 22, 1969, the corporation published an advertisement to the effect that it was increasing the base service rate temporarily, effective immediately, from $22.00 to $32.00. After being advised by the Police Chief that this was a violation of law, the corporation ceased making the additional charge.

9. December 30, 1969, Gentry publicly announced that his corporation was terminating ambulance service within the City the following day. However, after a meeting with the Police Chief and Commissioner of Finance and Utilities, Gentry stated that the corporation would continue providing service.

10. An informal meeting between Gentry and the members of the Commission Council was held January 13, 1970, but no decision was made or relief promised by the Council.

11. There is no evidence in the record to indicate that the corporate plaintiff ever made formal request for a public hearing on a rate increase to the Council or that the Council ever refused to hold such a hearing.

12. On or about March 12, 1970, the Council decided it must plan for and initiate a public ambulance service, this decision being executed June 8, 1970, when the City announced commencement of its service.

13. In the interim between the City's decision to enter the business and its actual initiation of service, Gentry intentionally violated the ordinance rate schedule in order to test its constitutionality. The person affected by the overcharge filed a warrant, and Gentry subsequently was prosecuted, convicted, and fined $5.00 in Monroe City Court. This sentence was appealed to the local Louisiana District Court.

14. June 9, 1970, as the result of other alleged rate violations, the Council resolved to hold a public hearing with respect to possible revocation, alteration, or suspension of the certificate of public convenience and necessity held by the Gentry corporation.

15. June 10, 1970, this suit was filed and, by order of this Court rendered June 17, 1970, a hearing was called by the City Council with respect to certain complaints made by plaintiffs and to determine whether a compelling public interest existed for the City's entry into the ambulance business. The two hearings were combined by the City into one hearing conducted June 30, 1970. Complainants were permitted to call any witnesses, present any documentary evidence, examine and cross-examine witnesses, including members of the Commission Council and the Chief of Police, and argue their position. They also were invited to present evidence as to rates and subsidies.

16. In its written findings of fact and conclusions issued after its hearing, the Council stated that:

(a) The maximum rates fixed in the existing City ordinance were deemed to be those which should be charged at that time for ambulance service within the City.

(b) Gentry's presentation for relief at the hearing was for unlimited subsidy by the City, to be handled as follows: The corporation would submit and assign to the City each ambulance bill due it and unpaid within thirty days; the City would pay the full amount of such bill to the corporation, and responsibility for collecting the account then would devolve upon the City, and, if it was not collected, or collectible, the loss would be the City's.

(c) The City should not and would not subsidize the operation of a private ambulance business.

(d) The City entered the ambulance business because of continuing threats by the Gentry corporation that it might cease business at any time, since there was no other ambulance service in the City, and because the Council could not risk that citizens of the City suddenly might find themselves without emergency ambulance service at a reasonable cost.

(e) The City's entry into ambulance service was motivated by a compelling public interest, not because of any desire on the part of its Council, its members or Police Chief to deprive the corporation or its President, Wayne Gentry, of due process of law.

17. We find the evidence presented at the hearing June 30, 1970, and upon trial in this Court, shows that the City entered the ambulance service business because of a compelling public interest, not because of any desire on the part of its Council, its members or Police Chief to deprive the corporation or its President of due process of law. We further find that the reasons given by the Council in its findings and conclusions following the June 30, 1970 hearing were and are the true and only reasons for the City's entry into that business.

III. CONCLUSIONS OF LAW

1. We have jurisdiction of this action under 28 U.S.C. § 1343(3) even though plaintiffs essentially are claiming impairment of property rights. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), held that there is no distinction between personal liberties and proprietary rights with respect to jurisdiction under that section of the Judicial Code.

2. As to Gentry himself, this action must be, and is, dismissed since he is not a proper party plaintiff. F.R. Civ.P., Rule 17(a), requires that "every action shall be prosecuted in the name of the real party in interest"; any damages here were suffered by the corporation, not Gentry individually. In a similar situation, Erlich v....