New Orleans Terminal Company v. Spencer, Civ. A. No. 9125-B.
| Decision Date | 28 October 1965 |
| Docket Number | Civ. A. No. 9125-B. |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | NEW ORLEANS TERMINAL COMPANY, Plaintiff, and Texas & New Orleans Railroad Company, Intervenor, v. Charles W. SPENCER, Beauregard H. Miller, Jr., A. Russell Roberts, Robert J. Duplantis, Frederick J. R. Heebe, John G. Fitzgerald, William J. Dwyer, Vernon C. Haynes, William S. Coci, Philip B. Smith and Frank H. Langridge, Defendants. |
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Walter J. Suthon, Jr., Malcolm L. Monroe, Benjamin R. Slater, Jr., J. Raburn Monroe, Monroe & Lemann, New Orleans, La., and Arnold McKennon, Gen. Sol. for Southern Railway System, Washington, D. C., for plaintiff, New Orleans Terminal Co.
Harry McCall, Jr., William E. Crawford, Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., for intervenor, Texas & New Orleans R. Co.
Nathan Greenberg, Gilbert P. Cohen, Greenberg & Cohen, Gretna, La., special counsel for defendant members of Jefferson Parish Council.
Frank H. Langridge, Jefferson Parish Dist. Atty., in pro. per.
Samuel S. Dalton, New Orleans, La., for defendant William S. Coci.
Waverly A. Henning, Asst. Dist. Atty., Jefferson Parish, La., Harold Kytle, Louis G. DeSonier, Jefferson Parish Atty., George C. Stringer, Jr., and F. M. Lob, Asst. Parish Attys., Jefferson Parish, La., for defendants.
Over a period of years the citizens and Council of Jefferson Parish, Louisiana, have been seeking removal of several New Orleans Terminal Company railroad grade crossings in highly populated areas of Metairie, Louisiana. Having failed in repeated attempts to amicably eliminate the crossings, or at least alleviate the noise, inconvenience and hazards incidental to operations conducted on the tracks, the Jefferson Parish Council adopted Ordinance No. 3911, supplemented by Emergency Ordinance No. 3967, which together require immediate removal of the crossings and provide criminal penalties for wilful violations of the removal ordinance.
In an effort to derail the Council, this action for declaratory judgment was instituted by the New Orleans Terminal Company (NOTC) to have enforcement of the ordinances enjoined and the ordinances themselves declared unconstitutional as being, among other things, in contravention of the Commerce clause in the United States Constitution. The Council counterclaimed for a judgment declaratory of the ordinances' constitutionality as valid exercises of its own police power. The trial of all issues was held to the Court without a jury.
The situation giving rise to this litigation had its genesis in the mid-1890's when the New Orleans & Western Railroad, plaintiff's predecessor, petitioned the Jefferson Parish Police Jury for permission to run its tracks through a then sparsely populated area of the Parish and across five public ways. These five crossings were to be at, going generally from west to east, Shrewsbury Road, Harlem Avenue, Labarre Road, Metairie Road and the "upper Protection Levee". This request was granted in an ordinance adopted October 17, 1895. (Appendix A.)
A single track line, referred to herein as Track A, was thereafter constructed in Jefferson Parish, and today constitutes the western three-mile portion of what is called the "Back Belt" line through the New Orleans metropolitan area. This "Back Belt" line runs from a section known as Shrewsbury on the west, through New Orleans to an eastern terminus at Port Chalmette in Saint Bernard Parish for an overall length of approximately sixteen miles, and connects most of the railroads serving New Orleans, thereby providing a means for the transfer of cars and trains from one railroad to another.1
In 1942, during the emergency occasioned by World War II, plaintiff petitioned the Jefferson Parish Police Jury for permission to construct six additional track crossings at grade "in order to move the National Defense materials and its other freight and business expeditiously." Following a special Parish Committee's study and report (Appendix B) this request was granted in Ordinance No. 812, adopted December 9, 1942. (Appendix C.)
Permission to establish these six crossings enabled plaintiff to construct a track parallel with and immediately adjacent to a portion of Track A. The second track, referred to herein as Track B, extended from just west of Shrewsbury Road, across Shrewsbury Road, Airline Highway and Labarre Road for a distance of 11,816 feet to a point just west of Metairie Road. At both ends Track B was connected with Track A, and at several points along its length it was also connected to Track A with crossovers.
The three other crossings permitted under Ordinance No. 812 would have enabled plaintiff to install three additional "short" tracks from just west of Shrewsbury Road, across Shrewsbury Road, to a point southwest of the Airline Highway. Only one of these "short" tracks was constructed, however, and is referred to as Track C. In schematic form, the tracks and crossings described are illustrated in this diagram:
TRACKS: A - original, 1895. CROSSINGS: 1 - Track B-Shrewsbury Road. B - second track, 1942. 2 - Track B-Airline Highway C - short track, 1942. (see note 21, infra). 3 - Track B-Labarre Road 4 - Track C-Shrewsbury Road not to scale
The legality of the original mainline track, Track A, and its crossings is not at issue in the instant suit.
In the mid-1950's then, Jefferson Parish voters approved a change in their form of local government from the police jury type to the present president-council system. Since that time the parish as a whole has experienced tremendous growth residentially, industrially and commercially, with residential development in proximity to New Orleans especially prominent. Metairie, Louisiana, is one of those residential communities and now finds itself bisected by plaintiff's railroad tracks.
Complaints from citizens and the Jefferson Parish Council have been directed not towards the mere presence of the tracks, but rather towards the use plaintiff is making of those tracks. Such complaints are summarized and enumerated in Ordinance No. 3911, adopted by the Council on December 29, 1958. (Appendix D.) The NOTC adamantly refused to remove the crossings and has failed to alter operations sufficiently to satisfy irritated residents. The citizens' and council's core of opposition centers on plaintiff's utilizing the tracks as a 24-hour marshaling yard for switching operations, thereby:
After setting forth these grievances, Ordinance No. 3911 repealed the 1942 Ordinance, No. 812, which in effect approved construction of the two additional tracks by permitting the grade crossings, and authorized parish officials to proceed with actions necessary to effect removal of those crossings. Emergency Ordinance No. 3967, adopted some nine weeks later on March 5, 1959, established criminal penalties for violations of Ordinance No. 3911. (Appendix E.)
Armed with these two new ordinances, parish authorities in May of 1959 commenced intermittently halting trains on Track B and Track C, at times arresting train crews, and actually instituting criminal prosecutions for violations of the ordinances. At that juncture plaintiff filed the present declaratory judgment suit to have the two ordinances declared unconstitutional as an improper burden on interstate commerce and violative of the Commerce clause, among other grounds. Pursuant to this Court's suggestion, the parties have commendably agreed to a "truce" pending legal determination of the matters at issue.2
The plaintiff here, New Orleans Terminal Company, is a Louisiana corporation controlled by the Southern Railway System. While plaintiff owns tracks only in the New Orleans area, the overall Southern system extends from Washington, D. C., Cincinnati, Ohio, and East St. Louis, Illinois on the north to the Gulf of Mexico on the South, and from the Atlantic Ocean on the east to the Mississippi River on the west.3 The system comprises about 4600 miles with substantial track mileages located in twelve states.
Prior to the filing of this action, on September 1, 1953, plaintiff entered into a contractual operating agreement with the Texas & New Orleans Railroad, a Texas corporation operating a railroad between El Paso, Texas and New Orleans, whereby the T & NO was granted the right to operate its trains over that portion of the "Back Belt" line here at issue. On the basis of that right in contract, and even though it was neither an indispensable nor necessary party, the T & NO was permitted to intervene as an additional party plaintiff.4 Intervenor has not been named in defendants' counterclaim, filed subsequent to the intervention, but as a practical matter, any ruling on that counterclaim will affect not only the tracks owned by plaintiff, but also intervenor's use of those tracks. Intervenor apparently proceeded with that understanding.
The defendants have been sued as individuals and in their respective representative capacities as elected officials of Jefferson Parish. Shortly after suit was filed a parish election was held and several of the original defendants were not returned to office. By motion and order, and pursuant to the 1960 requirements of Rule 25(d), F.R.Civ.P., 28 U.S.C.A., the newly elected officials were substituted and the original defendants not re-elected were dismissed. Another parish election intervened between...
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