Johnson v. Interstate Power Company

• Decision Date: 23 September 1960
• Docket Number: Civ. No. 1240.
• Citation: 187 F. Supp. 36
• Parties: Knute J. JOHNSON, Marlin G. Luze, Harold Neuman, Robert E. Johnson, Ernest G. Sundvald, Lewis Hoyt, Donald K. Brink, Ernest C. Hall, Alvin Houg, Seivert Dammer, Warren M. Whipkey, Clifford Hegge, Dan Finch, Ralph Jones and T. R. Abbadusky, Plaintiffs, v. INTERSTATE POWER COMPANY, a Corporation, Defendant.
• Court: U.S. District Court — District of South Dakota

187 F. Supp. 36

Knute J. JOHNSON, Marlin G. Luze, Harold Neuman, Robert E. Johnson, Ernest G. Sundvald, Lewis Hoyt, Donald K. Brink, Ernest C. Hall, Alvin Houg, Seivert Dammer, Warren M. Whipkey, Clifford Hegge, Dan Finch, Ralph Jones and T. R. Abbadusky, Plaintiffs, v. INTERSTATE POWER COMPANY, a Corporation, Defendant.

Civ. No. 1240.

United States District Court D. South Dakota, S. D.

September 23, 1960.

Peder K. Ecker, of Dana, Golden, Moore & Rasmussen, Sioux Falls, S. D., for plaintiffs.

Robert W. Bergstrom, of Springer & Bergstrom, Chicago, Ill., and R. G. May, of Stordahl, May & Boe, Sioux Falls, S. D., for defendant.

MICKELSON, Chief Judge.

Plaintiffs are residents of the unincorporated community of Brandon, Minnehaha County, South Dakota, and receive their electrical service from the defendant Interstate Power Company. No longer desiring Interstate's service and Interstate not complying with their request for disconnection, plaintiffs sought a writ of mandamus in the Circuit Court for the Second Judicial Circuit of the State of South Dakota, to compel Interstate to disconnect any and all electrical service and lines to the real property of the plaintiffs. Plaintiffs' petition for the writ was filed in the state court on August 3, 1960, and on that same date an alternative writ was issued and hearing set for August 16, 1960, to determine the entry of a peremptory writ of mandamus.

Prior to the hearing in state court, Interstate caused the action to be removed to this court. The matter now before us concerns plaintiffs' motion to remand the cause to state court.

Plaintiffs admit there is diversity of citizenship, but contend the cause must be remanded on two grounds: (1) that this court has no jurisdiction in an original mandamus proceeding such as this; and (2) that the amount in controversy does not meet the jurisdictional requirements.

In regard to plaintiffs' first ground, Interstate admits this court has no jurisdiction in an original mandamus proceeding, but urges that this action, though labelled mandamus by the plaintiffs, is in reality one for a mandatory injunction; that the substance of the relief sought and not the form should control and that this court should determine it to be in effect a prayer for a mandatory injunction, which it would have jurisdiction to grant. As to the challenge of the jurisdictional amount, Interstate has introduced affidavits and called witnesses to show that Interstate's assets in serving the Brandon area represent an investment in excess of $132,500. Further, that the revenues received from these plaintiffs from January 1, 1959, to the time of the commencement of this action totalled $5,399.10.

Since this motion can be disposed of on the first ground urged for remand, that is, that this court lacks jurisdiction to grant a writ of mandamus, the court will not discuss the merits of opposing contentions in regard to the question of jurisdictional amount.

Interstate admits and there is no dispute that a federal district court lacks jurisdiction to issue a writ of mandamus in an original proceeding.

"In the absence of some constitutional or statutory provision enabling them to do so, lower Federal courts have no original jurisdiction to issue mandamus. * * * By act of Congress, lower Federal courts have jurisdiction of suits of a civil nature at common law or in equity, but a proceeding for mandamus is not a civil suit of such character so as to entitle the Federal court to assume original jurisdiction of it, or jurisdiction on removal from a state court." 34 Am.Jur. Mandamus, Sec. 17, 817.

Among cases cited in support of this rule are Rosenbaum v. Bauer, 1887, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743, and Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L. Ed. 111.

However, this court will look through the form of the action to the substance to determine the true nature of the relief sought. Though brought as a mandamus proceeding, if the action in fact sets forth a cause for equitable relief, this court would not be barred by the name of the action and would have jurisdiction. Santa Margarita Mut. W. Co. v. State Water Rights Bd., D.C.S.D.Cal.1958, 165 F.Supp. 870; State of Washington ex rel. City of Seattle v. Pacific Tel. & Tel. Co., D.C.W.D. Wash.1924, 1 F.2d 327. Similarly, a federal district court has jurisdiction of an action that is in essence for recovery of a money judgment, though the action was brought under a statute authorizing the use of mandamus for the recovery of money due for oil. State of Louisiana ex rel. Glassell v. Shell Petroleum Corporation, D.C.W.D.La.1937, 20 F.Supp. 795.

Counsel for Interstate insist that the relief prayed for in this cause is actually a mandatory injunction; that it is mandamus in form only; and since in substance a prayer for a mandatory injunction, this court has jurisdiction and the cause was properly removed.

It becomes necessary to examine mandatory injunction and writ of mandamus to determine in what respects they are similar and in what respects they differ.

A mandatory injunction is similar to mandamus in all essential respects. The distinguishing characteristic of each is that it compels performance of some positive act by the person to whom issued. This is in distinction to the true injunction which restrains or prohibits the defendant from doing some act or committing some threatened violation. In only two ways can mandamus and mandatory injunction be distinguished.

The authorities tell us that mandamus is a legal proceeding, while injunction, of course, is equitable. 43 C.J.S. Injunctions § 9. This distinction that mandamus is a legal proceeding while injunction lies in equity is an illusory one and offers no assistance in determining whether an action brought to compel performance of some act is mandamus or mandatory injunction. The only practical application apparent in this distinction appears to have been in determining whether the action should have been placed on the law calendar or the equity calendar when the two jurisdictions were separate and distinct.

The other distinction deals with the character of the person against whom the writ or decree is directed. This distinction is apparent from a line of cases cited by plaintiffs' counsel and distinguished by counsel for defendant. Plaintiffs cite Updegraff v. Talbott, 4 Cir., 1955, 221 F.2d 342; Deglau v. Franke, D.C.D.R.I.1960, 184 F.Supp. 225; People of United States ex rel. Barmore v. Miles, D.C.W.D.Mich.1959, 177 F.Supp. 172; McCarthy v. Watt, D.C.D. Mass.1950, 89 F.Supp. 841, and New York Technical Institute of Maryland v. Limburg, D.C.D.Md.1949, 87 F.Supp. 308, in urging that a federal district court is without jurisdiction to grant a mandatory injunction, since such an injunction is in effect a mandamus and bound by the same considerations.

However, a federal district court is not always without jurisdiction to grant a mandatory injunction. On the contrary, a federal district court, in exercising its general equity jurisdiction, has an inherent power to grant mandatory injunctions. Ramsburg v. American Investment Company of Illinois, 7 Cir., 1956, 231 F.2d 333; Bowles v. Skaggs, 6 Cir., 1945, 151 F.2d 817; In re Lennon, 1897, 166 U.S. 548, 17 S. Ct. 658, 41 L.Ed. 1110. The only mandatory injunction a federal district court is without jurisdiction to grant is one which is in effect mandamus. An examination of the cases wherein it was held the mandatory injunction sought was in effect mandamus and therefore not within the jurisdiction of the federal district court, discloses in each instance that the mandatory injunction was sought to compel a public official to perform some duty. This would suggest that a "true" mandamus proceeding is one directed to some public official; that mandamus and mandatory injunction can be further distinguished in that though both provide affirmative relief, mandamus is directed only to a public official. Supporting this conclusion is McNulty v. National Mediation Board, D.C.N.D.N.Y. 1936, 18 F.Supp. 494, 504, wherein it was said: "A mandatory injunction is like a mandamus in all essential respects, though the latter is directed to a public officer to compel him to perform an administrative act as to which he has no discretion."

This distinction is valid if the concept of the "true" mandamus proceeding is expanded somewhat. Relief by mandamus has never been confined to use only when directed to a public official. Relief by mandamus is a proper remedy by a stockholder to compel inspection of the corporation's books. Seufert v. Commercial Nat. Bank in Shreveport, La., D.C. W.D.La.1935, 16 F.Supp. 871; State of Washington ex rel. Ellis v. General Fruit Corporation, D.C.W.D.Wash.1933, 4 F. Supp. 541; Greenough v. Independence Lead Mines Co., D.C.D.Idaho 1930, 45 F.2d 659. In each of these cases it was held the action for mandamus to compel the inspection was not removable to federal court since there was no jurisdiction in the federal court to grant a writ of mandamus.

Mandamus is also the proper remedy to compel a corporation to post its by-laws. Boardman v....