Kirby Lumber Corporation v. State of Louisiana
Decision Date | 16 September 1961 |
Docket Number | No. 18816.,18816. |
Citation | 293 F.2d 82 |
Parties | KIRBY LUMBER CORPORATION, Appellant, v. STATE OF LOUISIANA, through ANACOCO-PRAIRIE STATE GAME AND FISH COMMISSION, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Joyce Cox, Houston, Tex., A. B. Cavanaugh, Cavanaugh, Hickman, Brame & Holt, Edmund E. Woodley, Lake Charles, La., Fountain, Cox & Gains, Houston, Tex., for appellant.
W. R. Jackson, Jr., Leesville, La., Jack P. F. Gremillion, Atty. Gen. of Louisiana, for appellee.
Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DE VANE, District Judge.
DE VANE, District Judge.
This is a proceeding in which appellee, plaintiff below, seeks to condemn 912.45 acres of land owned by appellant, defendant below, in the Parish of Vernon, Louisiana. The land was being condemned for the purpose of constructing Anacoco Lake, which is situated about five miles west of Leesville, Louisiana, in Vernon Parish.
The Legislature of Louisiana, by an Act of 1948, created Anacoco-Prairie State Game and Fish Preserve as a political subdivision of the State and as its governing authority created the Anacoco-Prairie State Game and Fish Commission. By an Act of the Legislature in 1954 its territorial bounds were extended to include the lands belonging to appellant and being condemned in this suit.
This suit was originally filed in the State District Court of the Parish of Vernon under the general expropriation laws of Louisiana on August 5, 1959, and was removed to this Court by appellant on the grounds of diversity. Appellee promptly moved to remand. The lower Court held that the Anacoco-Prairie State Game and Fish Commission was the real party in interest in this case and denied the motion to remand, because of a prior ruling in a similar case between the same parties on May 30, 1959.
The earlier suit involved 23 acres of land in Vernon Parish, Louisiana, for a damsite near but not contiguous to the land being condemned in this suit. In the course of the disposition of the motion of appellee to remand in that case, District Judge Hunter held:
The chief grounds for reversal of this case urged by appellee is that the courts of the United States of America do not have jurisdiction over expropriation suits filed by the State of Louisiana to condemn or expropriate property located within its territorial limits and since it goes to the jurisdiction of the lower and this Court to hear and determine this litigation, it will be considered and disposed of before the grounds for reversal advanced by appellant are considered.
Judge Hunter in denying the motion of appellee to remand cites three cases as authority for his action. A brief review of each of these cases is set out below.
In Louisiana Highway Commission v. Farnsworth, 5 Cir., 74 F.2d 910, this Court held the Federal District Court had jurisdiction of a suit by Farnsworth against the Louisiana Highway Commission for damages growing out of breach of contract between the parties. In this case the Court cited and relied upon a decision of the Supreme Court of Louisiana in the case of Saint v. Allen, 172 La. 350, 134 So. 246, in which the Supreme Court of Louisiana held, in a suit brought by the Attorney General of Louisiana challenging the right of the Louisiana Highway Commission to employ attorneys to represent it without the consent or approval of the Attorney General, that the Louisiana Highway Commission was an independent corporation, vested with all the powers required to make it such and was, therefore, not a mere department of the State of Louisiana.
In Department of Highways of Louisiana v. Morse Bros. and Associates, Inc., 5 Cir., 211 F.2d 140, this Court held in an action against the Department of Highways of the State of Louisiana to recover damages caused by a breach of a contract for the performance by contractor of certain highway work that this Court had jurisdiction of such an action, on the ground that the Department of Highways was an agency or body politic which was subject to suit by a nonresident in Federal Court.
In Louisiana Land and Exploration Company v. State Mineral Board, 5 Cir., 229 F.2d 5, this Court in an opinion written by Judge Borah held that the Louisiana State Mineral Board was not a separate and distinct corporate entity, but was in fact merely an agency or arm of the State, and, therefore, could not be sued under the Eleventh Amendment to the U. S. Constitution, precluding suit against the State by a citizen of another state. This is a short but very clear opinion on the subject and is based entirely upon the determination by the Court that the State Mineral Board was not a corporation under the law but merely an agency of the State.
Another case decided by this Court bearing upon the issue involved in this case is Parks et al. v. Carriere Consol. School District, 5 Cir., 12 F.2d 37. While this is a Mississippi case, what the Court has to say with reference to its jurisdiction is equally controlling here. The only error relied upon in that case was the claim that the District Court was without jurisdiction to hear and determine the case for the reason the Carriere Consol. School District was an arm of the state and as such could not be sued in a federal district court under the Eleventh Amendment to the Constitution.
It is interesting to note that the Supreme Court of Mississippi has construed the sections of the Mississippi Code which create school districts as conferring upon them the same immunity from suit as the state has. In spite of this decision, the Court held 12 F.2d at page 38:
The difference in the name of the state highway agency in the Farnsworth case and in Morse Bros. should be noted here for the reason that counsel for the Department of Highways argued in the Morse Bros. case that the Act changing the name of Louisiana Highway Commission to Department of Highways in 1942 was purposely drawn so as to divest Federal Courts of jurisdiction of suits against the Highway Department. The Court in disposing of this point stated (211 F.2d at page 143):
"
It was also suggested on oral argument in this case that the Act creating the Anacoco-Prairie State Game and Fish Commission was likewise drawn so as to divest Federal Courts of jurisdiction of cases brought by or against it. The ability of a state to accomplish such a purpose was clearly stated by this Court in Louisiana Highway Commission v. Farnsworth, supra, 74 F.2d at page 913 as follows:
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