Oklahoma City v. Sanders

• Decision Date: 08 January 1938
• Docket Number: No. 1561.,1561.
• Parties: OKLAHOMA CITY et al. v. SANDERS.
• Court: U.S. Court of Appeals — Tenth Circuit

94 F.2d 323 (1938)

OKLAHOMA CITY et al. v. SANDERS.

No. 1561.

Circuit Court of Appeals, Tenth Circuit.

January 8, 1938.

Leon Shipp, Asst. Municipal Counselor, of Oklahoma City, Okl. (A. L. Jeffrey, Municipal Counselor, of Oklahoma City, Okl., on the brief), for appellants.

John H. Shirk, of Oklahoma City, Okl. (Harris L. Danner, Charles E. Earnheart, and George H. Shirk, all of Oklahoma City, Okl., on the brief), for appellee.

Before BRATTON and WILLIAMS, Circuit Judges, and SYMES, District Judge.

WILLIAMS, Circuit Judge.

This is an action brought by a contractor (appellee) engaged in the construction of a so-called low cost housing project for the United States to restrain a city and certain of its officers from attempting to enforce certain municipal ordinances in connection with such construction, and from instituting criminal prosecutions under said ordinances against said contractor for failure to comply therewith. Reference will be made to the parties as they appeared in the court below.

According to the allegations of the bill, plaintiff is a resident of Oklahoma City, and defendants are also residents of said city, and the action involves the interpretation and construction of federal laws, the amount involved exceeding $3,000 exclusive of interest and cost.

During the month of October, 1935, the United States purchased certain land situated within the boundaries of said city for the sole purpose of constructing buildings and improvements thereon, known as a low cost housing project, pursuant to certain acts of Congress. On July 9, 1936, Horatio Hackett, acting as agent of the United States government, entered into a contract with plaintiff in which the latter obligated himself to construct all buildings and improvements on Rotary Park Housing Project H-8101 and to furnish all materials and labor necessary thereto.

Plaintiff commenced operations and construction under the contract and continued same except for delays occasioned by defendants in seeking to enforce certain municipal codes and ordinances concerning inspections and permits. Plaintiff and his employees were neither using nor operating on any land outside of the boundaries of the tracts of land purchased by the United States. In September, 1936, defendants caused plaintiff to be arrested, charged with the violation of certain municipal ordinances relating to the procurement of licenses, the giving of bonds and the submitting to inspections. He was found guilty and a fine assessed against him and defendants announced their purpose to institute separate prosecutions for each and every day plaintiff continued the construction without compliance with such ordinances, and plaintiff avers that in the event he be required to comply with the requirements of the defendants, his cost of construction would increase at least $50,000.00 and his selection of employees would be greatly limited. He asked that defendants be restrained from filing informations against him, and causing his arrest for the violation of the municipal ordinances until a hearing could be had, and that thereafter the defendants be enjoined from committing the acts of which complaint was made.

A temporary restraining order having been issued, a motion to dismiss for want of jurisdiction and on other grounds having been made and heard was overruled. On stipulated facts the case was submitted for final hearing, in which it was recited, among other things, that soon after plaintiff began the construction of the project, the authorities of said city determined that such construction and improvement was subject to certain ordinances relating to licenses, bonds, and inspections, and plaintiff declining to comply therewith on the ground that the national government had exclusive jurisdiction over such property, the officials of said city caused him to be arrested, and the municipal court found him guilty and imposed against him a fine, said officials declaring that daily arrests would be made if plaintiff continued with the work without first complying with the ordinances. A permanent injunction having been awarded, the city and its officers appeal.

Plaintiff (appellee here) asked that the appeal be dismissed for the reason that the questions presented have become moot. The construction work has been completed and the United States government has accepted the completed work and received possession thereof. Under the provisions of the ordinances, each day that plaintiff continued to operate without complying with their terms constituted a new, separate, and distinct offense. If the injunction was improvidently obtained, plaintiff still remains subject to prosecution for all offenses committed during the period in which the injunction was in effect. Plaintiff cannot secure an improvidently issued writ of injunction restraining the city from its right of prosecution, and then upon completion of the work be heard to say that all questions are moot. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; Berdie v. Kurtz, 9 Cir., 75 F.2d 898; and McCluer v. Super Maid Cook-Ware Corporation, 10 Cir., 62 F.2d 426.

As to the jurisdiction of the court below, it is not questioned that the amount in controversy exceeds $3,000, excluding interest and costs, no diversity of citizenship existing. The interpretation and application of a federal statute, 40 U.S.C.A. § 402, providing for the construction of a program of public works, including slum clearing projects, and an Act of Congress of June 29, 1936, 40 U.S.C.A. § 421, is involved. Jurisdiction as to this case rests on the construction of federal statutes, the controversy being one arising under the laws of the United States. David Mark Cummings v. City of Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525; Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L. Ed. 1270; First National Bank v. Williams, 252 U.S. 504, 40 S.Ct. 372, 64 L.Ed. 690; King County v. Seattle School District, 263 U.S. 361, 44 S.Ct. 127, 68 L.Ed. 339; Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257; Mathers & Mathers v. Urschel, 10 Cir., 74 F.2d 591; Mudd v. Perry, 8 Cir., 25 F.2d 85; and Jefferson v. Gypsy Oil Co., 8 Cir., 27 F.2d 304.

Section 201(a) of title 2 of the National Industrial Recovery Act authorizes the President to create a Federal Emergency Administration of Public Works and to appoint an Administrator. Section 202 provides that the Administrator, under the direction of the President, shall prepare a comprehensive program of public works which shall include, among other things, construction, reconstruction, alteration or repair under public regulation or control of low-cost housing and slum-clearance projects. Section 203 authorizes (a) the construction of any public works project included in the program prepared by the Administrator in accordance with the previous section, and (b) the acquisition by purchase or the exercise of the power of eminent domain of any real or personal property in connection with any such project. 48 Stat. 200, 40 U.S.C.A. §§ 401 (a), 402, 403. The land described in the bill was acquired and the project authorized under the terms of said statute.

By article 1, section 8, clause 17 of the Constitution of the United States, it is provided that the Congress shall have exclusive power to legislate in relation to property purchased by the United States with the consent of the state in which such property is located.

By section 10053 of Oklahoma Statutes 1931, 80 Okl.St.Ann. § 1: "The consent of the State of Oklahoma is hereby given, in accordance with the seventeenth clause, eighth section, of the first article of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation or otherwise, of any land in this State required for sites * * * for needful public buildings or for any other purposes for the government."

By section 10054, 80 Okl.St.Ann. § 2: "Exclusive jurisdiction in and over any lands so acquired by the United States shall be, and the same is hereby ceded to the United States for all purposes except the service upon such sites of all civil and criminal process of the courts of this State; but the jurisdiction so ceded shall continue no longer than the United States shall own such lands."

The taking of property by condemnation proceedings under said sections 202 and 203 has been held not to be such a public use as will authorize the exercise of the power of eminent domain. United States v. Certain Lands in City of Louisville, 6 Cir., 78 F.2d 684, 686, by a divided court, a writ of certiorari having been granted, 296 U.S. 567, 56 S.Ct. 154, 80 L.Ed. 400, the majority specifically placing their decision "upon the objection" as "to * * * the lack of right in the government to exercise the power of eminent domain for the purposes contemplated" in said sections 202 and 203. See, also, Dean v. County Board of Education, 210 Ala. 256, 97 So. 741, and Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791, and United States v. Tucker, D.C., 122 F. 518.

The taking of land in a city for public parks and squares in the District of Columbia, by authority of an act of Congress, is for a public use. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170.

In United States v. Gettysburg Electric Ry. Co., 160 U.S. 668, 16 S.Ct. 427, 429, 40 L.Ed. 576, it is said: "In these acts of congress, and in the joint resolution, the intended use of this land is plainly set forth. It is stated in the second volume of Judge Dillon's work on Municipal Corporations (4th Ed., § 600) that, when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation. Many authorities are cited in the note, and, indeed, the rule commends...