State v. Shell Petroleum Corporation, 2801

• Decision Date: 02 March 1937
• Docket Number: No. 2801,738.,2801
• Parties: STATE ex rel. GLASSELL et al. v. SHELL PETROLEUM CORPORATION. SHELL PETROLEUM CORPORATION v. GLASSELL et al.
• Court: U.S. District Court — Western District of Louisiana

20 F. Supp. 795

STATE ex rel. GLASSELL et al. v. SHELL PETROLEUM CORPORATION.

SHELL PETROLEUM CORPORATION v. GLASSELL et al.

Nos. 2801, 738.

District Court, W. D. Louisiana, Lake Charles Division.

March 2, 1937.

S. W. Plauche, of Lake Charles, La., and Barksdale, Bullock, Warren, Clarke & Van Hook, of Shreveport, La., for Glassell and others.

Geo. C. Schoenberger, Jr., E. A. Mottet, and J. Frank Smith, Jr., all of Houston, Tex., and Arthur J. Shepard, Jr., of Houston, Tex., for Shell Petroleum Corporation.

DAWKINS, District Judge.

In the law case above, plaintiffs filed in the state court of Calcasieu parish an action alleging that defendant, Shell Petroleum Corporation, had connected its pipe line with an oil well on certain property described and "purchased from petitioners the oil produced therefrom * * *"; that the value of the oil so purchased amounts "up to this time in excess of the total sum of One Hundred and Forty-four Thousand and no/100 Dollars, but that the said Shell Petroleum Corporation has withheld from your petitioners payment for said oil, without any right, and in contravention of the provisions of Act No. 64 of the Legislature of Louisiana, for the year 1934."

The petition then sets forth that plaintiff Louisiana Irrigation & Mill Company "is the true and last record owner of the land" from which the said oil was produced, and one-fifth of said oil, "by virtue of its lease to John Glassell, Jr., Edwin C. Kirker and Ashton Glassell"; that the last named three, also plaintiffs herein, were the owners of nine-sixteenths of four-fifths of said oil, purchased by defendant, by virtue of said lease, and that the remaining seven-sixteenths of four-fifths of said oil was owned by John Glassell, trustee.

Petitioners prayed that writ of mandamus issue to defendant "commanding it to pay over to your relators in the proportions hereinabove mentioned, the purchase price of the said oil sold and delivered to the said corporation, as aforesaid, or that it show cause to the contrary on such date and hour as the court may appoint." Upon this petition an order was signed for the issuance of "alternative writs of mandamus as prayed for and according to law," returnable on the 12th day of January, 1937, at 10 o'clock a. m. It was dated January 5, 1937. The statute under which this proceeding was instituted is copied in the note, infra.

Written notice was served by defendant on the counsel of plaintiffs of intention to apply for an order of removal to this court on January 11, 1937. The application with bond was presented accordingly to and refused by the said court. Thereupon, defendant, on the 13th of said month, obtained and filed in this court certified copies of the proceedings according to the federal statute. On the 16th of January following, plaintiff filed a motion to remand on the grounds:

(1) "That this is a mandamus proceeding, authorized by and initiated under Act No. 64 of 1934 of the Legislature of Louisiana," and this court is without jurisdiction or power to issue writs of mandamus or "to give plaintiffs the relief herein sued for."

(2) There is and can be no issue or dispute between plaintiffs and defendant, defendant having purchased and taken into its pipe line the oil from plaintiffs and rendered to them an account of the amount so taken each month and the amount due them.

This is the proceeding at law, above numbered 2801.

On January 13, 1937, defendant, Shell Petroleum Corporation, filed in this court its petition in the equity case, numbered above 738, wherein it was alleged that Glassell and others had filed in the state court the suit at law above mentioned, "claiming the sum of $144,000.00"; that it had made application to remove the same to this court, which had been refused by the state court, and it had filed a copy of the record here, in accordance with the federal statute (Jud.Code § 29, 28 U.S.C.A. § 72); that notwithstanding, counsel for plaintiffs in the state court had threatened to proceed to judgment in that forum; that the proceeding in the state court was "nothing more than a moneyed demand which plaintiffs were seeking to collect" under the state law by mandamus; that the hearing had been postponed until January 14th, but plaintiffs would take judgment by default unless petitioner appeared and pleaded therein, and that a writ of injunction was necessary to protect its rights and the jurisdiction of this court; all of which was duly verified. A restraining order in the equity case in this court was issued, returnable on January 25, 1935, at which time both the motion to remand and the application for preliminary injunction were heard and submitted.

A determination of the motion to remand will dispose of both cases. It is true that a writ of mandamus cannot be issued by a federal District Court as an original proceeding, but only in aid of jurisdiction already acquired, such as the enforcement of a judgment previously obtained. Bath County v. Amy, 13 Wall. 244, 246, 20 L.Ed. 539; Graham v. Norton, 15 Wall. 427, 428, 21 L.Ed. 177; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743. However, these, as well as other cases cited by plaintiff in the law case, were not actions to compel the payment of money. The party seeking the relief had not invoked the jurisdiction of the federal court to have a judgment upon their rights in advance of the summary relief sought, and which the Supreme Court in the cases cited has held is a necessary precedent to such relief. Counsel has cited no case, nor has the court been able to find one, where, as here, the demand was to have the court find the defendant was indebted to the plaintiff in a sum of money and to compel its payment by the summary remedy of mandamus.

In Bath County v. Amy, supra, plaintiff, as the holder of bonds issued by a county of Kentucky, filed an affidavit in the United States court, praying for a writ of mandamus to compel the justices of the county court to levy a tax to pay the principal and interest of said bonds, but there had "been no previous judgment of the court in favor of the party holding the obligations, and no previous attempt made by it to enforce their payment by its ordinary process."

In Graham v. Norton, plaintiff was the assignee in bankruptcy of certain bankrupt estates, which had paid into the State Treasury certain funds as taxes, which the Legislature afterwards found illegal and ordered refunded through certificates to be issued by the state auditor. That official having declined to issue to plaintiff certificates for the sums claimed in favor of the estates which he represented, the latter brought proceedings for mandamus to compel issuance and delivery thereof. It was said: "This court has held that the writ may be issued for the purpose of enforcing a judgment rendered by the Circuit Court, where its use by the State court for that purpose is sanctioned by State laws, but in such cases it is used as a process for the enforcement of judgments and not as an original proceeding."

In Rosenbaum v. Bauer, supra, plaintiff, also being a holder of municipal bonds sought to compel the treasurer of the city of San Francisco to advertise for bids by persons holding such bonds for payment out of the funds collected for their payment and which he was directed to do by the statute whenever funds to a given amount were in his hands. No previous judgment had been obtained against the city, nor did the plaintiff ask for judgment upon the bonds in the proceeding for mandamus, but the issuance of this writ against the treasurer was the sole relief sought, and was accordingly denied.

A state may provide any mode of procedure for its own courts, so long as due process of law under the Federal Constitution (Amendment 14) is not denied. New Orleans,...