State of Oklahoma v. Guy F. Atkinson Co.

• Decision Date: 02 June 1941
• Docket Number: No. 348.,348.
• Citation: 37 F. Supp. 93
• Parties: STATE OF OKLAHOMA ex rel. PHILLIPS, Governor, v. GUY F. ATKINSON CO. et al.
• Court: U.S. District Court — Eastern District of Oklahoma

37 F. Supp. 93

STATE OF OKLAHOMA ex rel. PHILLIPS, Governor, v. GUY F. ATKINSON CO. et al.

No. 348.

District Court, E. D. Oklahoma.

January 25, 1941.

Judgment Affirmed June 2, 1941.

Mac Q. Williamson, Atty. Gen. of Oklahoma, Randell S. Cobb, of Oklahoma City, Okl., C. C. Hatchett, of Durant, Okl., and Wm. O. Coe, of Oklahoma City, Okl., for plaintiffs.

Norman M. Littell, Asst. Atty. Gen., Charles O. Butler, Atty., Department of Justice, of Washington, D. C., and Cleon A. Summers, U. S. Atty., of Muskogee, Okl., for defendants.

Before HUXMAN and MURRAH, Circuit Judges, and RICE, District Judge.

Judgment Affirmed June 2, 1941. See 61 S.Ct. 1050, 85 L.Ed. ___.

RICE, District Judge.

By this action the State of Oklahoma, upon the relation of Leon C. Phillips, Governor, challenges the right of the defendants to proceed with the construction of what is commonly known as the Denison Dam. The dam is now in the process of construction across Red River near Denison, Texas, and from a point in Bryan County, Oklahoma. The defendant, Guy F. Atkinson Company, a corporation, is the contractor and it is charged in the bill of complaint that he is purporting to act under a contract with the Secretary of War. The defendant, Cleon A. Summers, is the United States District Attorney for the Eastern District of Oklahoma. Curtis P. Harris, defendant, is a Special Attorney for the Department of Justice of the United States. As to the latter two defendants, it is charged that they have already instituted numerous suits for the condemnation of lands within the proposed area of the dam, and, unless enjoined, will institute other suits for the condemnation of lands within the State of Oklahoma. The plaintiff further alleges that the defendants are proceeding under a certain act of Congress passed and approved on June 28, 1938, being H. R. 10618, public No. 761, 75th Congress, chapter 795, 52 Stat. 1215, styled "An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes", and that this Act of Congress is unconstitutional and void, contravening powers reserved to the plaintiff by the Tenth Amendment; that it is wholly beyond the power of Congress to enact; that the project and scheme as outlined in the Act authorizing its construction and in House Document No. 541 referred to in the Act are not for a public purpose and are not within either the expressed or implied powers of Congress.

Other allegations contained in the plaintiff's bill are that if the dam is constructed as contemplated, it will inundate approximately one hundred thousand acres of lands within the State of Oklahoma, much of which land is owned by the State of Oklahoma in fee simple; that it will destroy many of the highways of the State of Oklahoma; that it will compel eight thousand residents of the State of Oklahoma to move; that it will seriously affect political subdivisions of the State of Oklahoma, both counties and school districts, in that much of the lands situated in such subdivisions will be taken; that much of the lands within the area affected are oil producing lands and that the building of the dam will seriously affect the development of these oil lands and will deprive the State of Oklahoma of much revenue to be derived from the gross production tax on the oil and gas that might be produced; that the impounding of the waters behind said dam would cover lands in both the State of Texas and the State of Oklahoma and would thereby obliterate the boundary line between the two states; that under the plan it is contemplated that waters from both the Red River and the Washita River, a non-navigable tributary of the Red River wholly within the State of Oklahoma, are to be impounded and thereafter conducted through conduits into the State of Texas and there conducted through turbines for the purpose of generating electrical power; that the plan for the construction of said dam as disclosed in House Document 541 contemplates the construction of a dam for both flood control purposes and for the purpose of the generation of hydroelectric power; that the two purposes are functionally separate and neither is incidental or a necessary result of the other; that the electric power feature is not in aid of nor related to flood control; that Red River within the State of Oklahoma is a non-navigable stream; that the non-navigability of Red River within the State of Oklahoma was determined by the Supreme Court of the United States in the case of State of Oklahoma, Complainant v. State of Texas, Defendant, United States, Intervener, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771, decided May 1, 1922.

The prayer of the plaintiff's bill of complaint is that the contractor, Guy F. Atkinson Company, its agents, servants and employees, be permanently restrained and enjoined from constructing the dam in question and that the defendants, Cleon A. Summers and Curtis P. Harris, be enjoined and restrained from instituting and conducting in any court within the State of Oklahoma any suit or proceeding for the condemnation of any lands owned by plaintiff or located within its domain for the purpose of obtaining a site or right-of-way for said dam or the reservoir to be created thereby.

The defendants, represented by the Department of Justice of the United States, have filed a motion to dismiss. This motion to dismiss presents, first, the jurisdiction of the court to entertain this suit, and, second, appropriately raises the constitutionality of the Act of Congress involved. The accepted procedure for presenting this constitutional question is by motion to dismiss. Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Steward Machine Company v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289.

At the threshold we are met with the objection to jurisdiction. Defendants contend that the government is the real party in interest, and, its consent not having been given, it may not be sued, and that the Secretary of War is an indispensable party. The immunity of the government from suit, to which it has not consented, is a principle too well established to require citation of authority. Is this a suit against the government? On the face of the pleadings it is not. The plaintiff is proceeding against the individual defendants on the theory that the Act of Congress under which they are admittedly acting is unconstitutional. Although there may be some slightly apparent conflict in the decisions, we think it is fairly well established that if an agent of the government acts without authority or attempts to act under a void or unconstitutional Act of Congress, he ceases to act in an official capacity and a suit against him is not a suit against the government, in such case the theory or fiction, if we would call it such, being that the government can act only under constitutional authority. It follows that the exemption of the government from suit does not exempt or protect its officials from being sued when they are proceeding without authority or under an unconstitutional Act of Congress. Otherwise, there would be no constitutional limitations, since there would be no way of testing the constitutionality of the challenged procedure. Philadelphia Company v. Henry L. Stimson, Secretary of War, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784; Ryan v. Chicago, B. & Q. Railroad, 7 Cir., 59 F.2d 137; Franklin Township v. Tugwell, Administrator of Resettlement Administration, 66 App.D.C. 42, 85 F.2d 208; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171.

If the Act of Congress is unconstitutional, then the Secretary of War is not a necessary party. Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, 11 A.L.R. 984; Ryan v. Amazon Petroleum Corporation, 5 Cir., 71 F.2d 1. In Colorado v. Toll, supra 268 U.S. 228, 45 S.Ct. 506, 69 L.Ed. 927, the court says: "The object of the bill is to restrain an individual from doing acts that it is alleged that he has no authority to do and that derogate from the quasi-sovereign authority of the State. There is no question that a bill in equity is a proper remedy and that it may be pursued against the defendant without joining either his superior officers or the United States". It would seem, therefore, that if the Act is unconstitutional, the authorities sustain the right of the state to maintain the action, the appropriateness of injunctive relief, that it is not a suit against the United States, that the Secretary of War is not a necessary party. And, since the Act of Congress in question is challenged by the plaintiff as unconstitutional, and the constitutionality of the said Act is asserted by the defendants, who are within the jurisdiction of this court and have been served by proper process, this court has jurisdiction to entertain the suit and must of necessity determine or pass upon the constitutionality of the Act. The question and the manner in which it is presented, rather than the ultimate answer, determine jurisdiction.

The motion to dismiss admits all facts well pleaded. It does not admit conclusions of law or deductions of fact not warranted. Most of the allegations of plaintiff's complaint are immaterial in so far as the constitutionality of the Act in question is involved. Upon oral argument the attorneys for the plaintiff conceded that if the Act of Congress in question is constitutional, the motion of the defendant to dismiss should be sustained. They further admitted that in the determination of the constitutionality of the Act, assuming the truth of all well pleaded allegations, no evidence was necessary or proper. They further admitted upon oral argument and...