Washington Water Power Co. v. City of Coeur d'Alene, 1268.
| Decision Date | 06 September 1938 |
| Docket Number | No. 1268.,1268. |
| Parties | WASHINGTON WATER POWER CO. v. CITY OF COEUR D'ALENE et al. |
| Court | U.S. District Court — District of Idaho |
John P. Gray, of Coeur d'Alene, Idaho, for plaintiff.
James W. Morris, Asst. Atty. Gen., John A. Carver, U. S. Dist. Atty., of Boise, Idaho, and Enoch E. Ellison, Atty., Department of Justice, and Joseph B. Hobbs, Atty., Federal Emergency Administration, both of Washington, D. C., for petitioners.
The City of Couer d'Alene and Harold L. Ickes, defendants, present their petitions for the modification of a final decree of the United States District Court of the District of Idaho, entered on September 9, 1935, and make applications to request the Senior Circuit Judge of this Circuit to designate two other Judges to participate in the determination of the petitions pursuant to the provisions of the Act of August 24, 1937.
It appears that the petitions and requests for the assembling of the three Judge Court were first presented to Judge Healy, one of the Circuit Judges, who on August 22, 1938, requested the Senior Judge to designate two other Judges with him to hear the petitions, and the conclusion reached by the Senior Judge was that the hearing of the petitions was not for a three Judge Court, but for the District Court who entered the final decree. The determination of the requests for the assembling of the three Judge Court pursuant to the Act referred to requires a recital of the history of the case and the proceedings had.
On November 24, 1934, a Bill in Equity was filed to restrain defendant City and its officers from pledging, selling or delivering bonds of the City which were purported to be authorized by the ordinance of the City and from applying any moneys of the Federal Emergency Administration of Public Works or entering into a contract for the building of any municipal electric and distribution system, and from selling such bonds until the defendants have provided for an annual tax in addition to all other taxes and sufficient to pay the bonds as required by the Constitution of the State and that the defendants be enjoined from proceeding with or making effective any act in connection with the construction of any such plant, which was heard and after considerable testimony taken, submitted to the Court, who made findings and entered a final decree restraining the defendants as prayed for.
The issues involved and the conclusions there reached by the Court presented questions other than whether the Act of Congress authorized the Federal Administrator of Public Works to act. Thereafter an appeal was taken to the Circuit Court of Appeals by the defendants and the defendant Ickes there moved to remand the cause to the District Court and based the motion upon a new proposed contract with the City different than the original one submitted to the District Court and the Circuit Court of Appeals as appears from its mandate, dismissed the appeal on April 16, 1936, 9 Cir., 82 F.2d 1003, and no further proceedings were taken. So we have here now, on the requests presented, the questions, first, does the Act of Congress of August 24, 1937 apply to the present proceedings authorizing the assembling of a three Judge Court, and second, if not, is a modification of a permanent injunction contained in a final decree, inherent in the Court which granted it, who may in the ends of justice, where the circumstances and situation of the parties are shown to have changed, and complying with the Constitution and laws in existence at the time such modification is made, as to make it just and equitable to do so?
As to the first question, does the Act of Congress of August 24, 1937, 28 U. S.C.A. § 380a, require that the instant petitions to modify an existing permanent injunction heretofore issued be heard by a court of three Judges? The provisions of the Act relative to this inquiry are: "No interlocutory or permanent injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any Act of Congress upon the ground that such Act or any part thereof is repugnant to the Constitution of the United States shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge." It is clear that the aim of the Act was to require that three Judges shall determine the issuance of interlocutory or permanent injunctions suspending the enforcement of an Act of Congress upon the ground that such Act is repugnant to the Constitution of the United States and relates to the issuance or granting of such injunction in the first instance, and not to a permanent injunction already issued by final decree, as the Act expressly states that "no interlocutory or permanent...
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