Tennessee Gas Transmission Co. v. Thatcher

• Decision Date: 09 June 1949
• Docket Number: Civ. A. No. 2570.
• Citation: 84 F. Supp. 344
• Parties: TENNESSEE GAS TRANSMISSION CO. v. THATCHER.
• Court: U.S. District Court — Western District of Louisiana

84 F. Supp. 344

TENNESSEE GAS TRANSMISSION CO. v. THATCHER.

Civ. A. No. 2570.

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

June 9, 1949.

Shotwell & Brown, Monroe, La., for plaintiff.

Theus, Grisham, Davis & Leigh, Monroe, La., for defendant.

DAWKINS, Chief Judge.

This is a proceeding for the condemnation of a 50 foot right of way for the construction of a third pipe line across the property of defendant (two, having been laid heretofore under rights of way, also 50 feet in width adjoining and comprising a strip 100 feet wide, purchased from defendant by private agreement) paralelling and adjoining its present lines. A certificate of necessity and convenience having been granted by the Federal Power Commission, and negotiations for the presently sought right of way having failed, this suit was instituted in this Court, under express provisions of a Federal statute, Title 15, U. S.C.A. § 717(f).

Defendant has moved to dismiss the action on the ground, among others, that the Act is unconstitutional, and in the alternative, asks for a bill of particulars as to the "reasons which necessitate the construction of plaintiff's proposed pipe line and the location of its proposed right of way along the particular route, which complainant has selected * * *".

Reduced to terms of substance, it is contended by defendant:

(1) Congress is without power under the Constitution to confer upon a private corporation, such as plaintiff, authority to condemn private property;

(2) The act makes no provision within itself, for ascertaining and paying of adequate compensation, thereby violating the 5th Amendment;

(3) If the demand is made under state laws this Court is without jurisdiction;

(4) The complaint fails to state facts upon which relief can be granted; and

(5) Alternatively, if the complaint is not dismissed, plaintiff should be required to furnish a bill of particulars of the matters above stated.

The motion to dismiss has been briefed separately from the merits and will be disposed of in the same way.

Motion to Dismiss

Defendant concedes that the United States Government may itself condemn private property for public purposes, without express constitutional or statutory authority, as an incident to its sovereignty, and that in proper cases it may delegate this power to persons or corporations having the status of common carriers, or engaged in the construction of highways, bridges, etc., for the common use of the public. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295; Luxton v. North River Bridge Company, 153 U.S. 525, 14 S.Ct. 891, 38 L.Ed. 808; State of Missouri v. Union Electric Light and Power Company, 8 Cir., 42 F.2d 692; and Oakland Club v. South Carolina Public Service Authority, 4 Cir., 110 F.2d 84. He insists, however, that the plaintiff seeks in this case to deprive him of his property for a purely private purpose, the construction of a pipe line for the transporting and marketing of its own gas alone, without qualifying as a common carrier, which would require it to transport gas for the public generally. This is the major contention, and the points involved in grounds Nos. 2 to 5 inclusive, above, may be said to be more or less incidental. We shall therefore deal first with the constitutionality of the statutes in question.

(1) It is also admitted that the control of Congress over interstate commerce is plenary, within the range of expressed constitutional delegation, as well as of those powers reasonably to be implied therefrom. Proceeding from this premise, it may not be out of place to say, that it is believed no other provision of the Constitution warrants greater elasticity in its interpretation, to meet the ever expanding and increasingly complicated conditions of commerce. As has been said, interstate commerce may be compared, in dealings between the states and their citizens, to the circulation of blood in the human body, upon which the life of the nation depends. It is true that in the early stages, Congress and the courts had to deal with conditions as they then existed. At first intercourse was mainly upon the navigable waters of the country; later came the railroads, followed by hard surfaced highways, bridges, etc., and now the airways, underground pipelines, etc.

Can it be said that the power of eminent domain, in the control of interstate commerce, must be limited to common carriers or channels always open to the public; or does the principle apply also to situations, where, in the nature of things, the particular business or enterprise from a practical standpoint, can be carried on only by the initial agency in the state of origin, gathering or producing commodities, such as natural gas, etc. and transporting them across state lines to points of distribution to the public? In other words, does the producer of natural gas, which must be transported by pipe line, have to wait until some one else sees fit to build a line, open to the public, before he can do business with hundreds of eager customers in other states? Is it any the less public where that interest begins after crossing of state lines and the making of the commodity available to the purchasing public, than where the sellers, before transportation are to be served? Consider the case of high power lines, where the electricity is generated by a single or number of privately owned plants, propelled by steam or water power, located wholly within a single state whose operations in generating or producing the commodity, (electricity), to the point of its availability in interstate commerce involve only intra-state activities, to the extent that the Supreme Court has held their producing activities subject to local taxation as against the claim that such...