Sigue v. Texas Gas Transmission Corporation

• Decision Date: 04 November 1964
• Docket Number: No. 10356.,10356.
• Citation: 235 F. Supp. 155
• Parties: Althimus SIGUE v. TEXAS GAS TRANSMISSION CORPORATION.
• Court: U.S. District Court — Western District of Louisiana

235 F. Supp. 155

Althimus SIGUE v. TEXAS GAS TRANSMISSION CORPORATION.

No. 10356.

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

November 4, 1964.

Simon & Trice, Phil Trice, Lafayette, La., for plaintiff.

Shotwell & Brown, Burt W. Sperry, Monroe, La., for defendant.

PUTNAM, District Judge.

Plaintiff's suit is predicated upon alleged violations of Title 42 U.S.C.A. §§ 1983-1985, and jurisdiction claimed pursuant to Title 28 U.S.C.A. §§ 1332 and 1343.

Defendant has filed a motion for summary judgment and for judgment on the pleadings.

We bear in mind the repeated admonitions of our Appellate Courts that such motions should be denied unless it is clear that under no view of the case could plaintiff recover under the pleadings. Hughes v. Noble, 295 F.2d 495 (5 Cir. 1961); Lewis v. Brautigam, 227 F.2d 124, 55 A.L.R.2d 505 (5 Cir.1955), and cases cited.

After carefully studying the pleadings, exhibits and affidavits of both parties, it is our opinion that plaintiff has failed to allege facts sufficient to state a cause of action under the Civil Rights Acts. That he was deprived of his civil rights by defendant appears to be only a conclusion of complainant in order to obtain jurisdiction.

Accepting the allegations of plaintiff's complaint as true, we fail to find any facts alleged which show that defendant was acting under color of Louisiana law in taking the action which it did. Summarizing the allegations of the complaint, we note that defendant is alleged to have constructed an above-ground valve on plaintiff's property contrary to the terms of a right-of-way agreement for a buried pipeline only; that defendant was enjoined by the Louisiana courts from maintaining this valve and was ordered to remove it; that defendant did not remove said valve, but instead filed suit in the state court to expropriate the property; that he filed an exception, motion for continuance and a request for trial by jury, none of which were granted since he had not filed within ten days after service and since he is not entitled to a trial by jury under Louisiana law; that he then filed answer to the suit along with written interrogatories and later filed a peremptory exception; that the exception was overruled, the interrogatories were not answered, and the judge required complainant to proceed to trial over his objections on the issue of damages alone since he had not filed a timely answer contesting the taking, and that after a limited hearing he was awarded judgment for his land in the sum of only $53.00.

This judgment was affirmed on appeal to the Third Circuit Court of Appeal, State of Louisiana, and application for writs of review was refused by the Louisiana Supreme Court.

The actions of the State courts, therefore, are in conformity with the State law which must be applied to such expropriation suits under both State and Federal Statutes. 15 U.S.C.A. § 717f(h); LSA-R.S. 19:1 et seq.

In its motion for summary judgment defendant alleged that it is a natural gas company subject to the provisions of the Natural Gas Act (Title 15 U.S.C.A. § 717(a) and (b)), and that in expropriating the property in question it was acting under a certificate of public convenience and necessity from the Federal Power Commission. A certified copy of this certificate is attached to its motion, along with an affidavit of its Chief Engineer that the facilities referred to in the expropriation suit were authorized and constructed in accordance with this certificate of public convenience and necessity. Also attached are copies of the final judgment of expropriation, and judgments on appeal.

Although complainant maintains that defendant was at all times acting under color of state law, he has not filed any evidence to contradict the allegations made by defendant as set out above.

It is well settled that in order to allege an actionable claim under the Civil Rights Act, 42 U.S.C.A. §§ 1983-1985, within the jurisdiction of the District Court set out in 28 U.S.C.A. § 1343(3), facts must be affirmatively set forth which show (1) that plaintiff has been denied a protected right, privilege or immunity, and (2) that defendant(s) acted under color of a state or local law. Hornsby v. Allen, 326 F.2d 605, 612 (5 Cir. 1964); Lee v. Hodges, 321 F.2d 480 (4 Cir. 1963); Stringer v. Dilger, 313 F.2d 536, 540 (10 Cir. 1963); and Marshall v. Sawyer, 301 F.2d 639, 646 (9 Cir. 1962).

Taking up these requirements in reverse order, we fail to see where or how defendant acted under color of any state or local law. To the contrary, defendant has alleged, and it has not been rebutted, that it was acting under the authority of the Federal Natural Gas Act (15 U.S.C.A. 717f(h) and of the Federal Power Commission, which Congress empowered to administer the provisions of the said Act. Although complainant did not raise the issue, the grant of the power of eminent domain to a natural gas company such as defendant has been held constitutional. Tennessee Gas Transmission Co. v. Thatcher, 180 F.2d 644 (5 Cir. 1950), cert. den. 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed. 609. Moreover, far from the action complained of here being state action, we find language in this same opinion to indicate that a natural gas company cannot even act except under Federal authority. At pages 647 and 648 of their opinion, the Court said:

"Indeed when Congress determined it in the public interest to regulate the interstate transportation and interstate sale of natural gas as provided by the Act of 1938 and the amendment of 1942, so that companies engaged in such business not only could not operate except under the authority provided by the statute, but could also be required to provide additions and extension of service, it was proper to make provision whereby the full statutory scheme of control and regulation could be made effective, by the grant to such company of the right of eminent domain. * * * This is, in fact and in law, as by the Natural Gas Act declared, a public business and subjected to public control as to its interstate features and, indeed, as to this it can not be conducted at all unless its operations are determined by the Federal Power Commission to be compatible with public convenience and necessity." (Emphasis supplied.)

The Louisiana courts also recognize the exclusiveness of Federal control in this area, as is evident from the case of Texas Eastern Transmission Corp. v. Bowman, 238 La. 399, 115 So.2d 797 (1959), wherein the Louisiana Supreme Court said at page 799:

"Concededly, plaintiff corporation was organized for the purpose of, and it engages in, the transporting and marketing of natural gas for public consumption on an interstate basis. And the conducting of its business is, pursuant to an act of Congr

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