142 F.2d 750 | 5th Cir. | 1944
This suit was brought by appellant against the Board of Levee Commissioners of the Orleans Levee District, the Texas & New Orleans Railroad Company,
The asserted cause of action arises from these alleged facts: North Peters Street was dedicated to public use prior to 1865, was made into a paved thoroughfare, and was used by the public as such. Appellant owned property fronting on the street; on the opposite side was built a levee that confined the waters of the Mississippi River, and the defendant Railroad Company operated switch tracks on or at the base of the levee. Several years prior to the institution of the suit the Board of Levee Commissioners of the Orleans Levee District, an agency of the State of Louisiana, determined that the levee should be reconstructed. It was not necessary that North Peters Street should be used for such purpose, but the Levee Commissioners, after negotiations with and for the accommodation and convenience of the defendant Railroad, determined that the base of the levee should occupy a sufficient portion of the street to enable the Railroad to build tracks thereon. The City of New Orleans aided in the undertaking, and adopted an ordinance granting to the Railroad the right to occupy a portion of the street and maintain a switch track thereon.
The changes effected pursuant to these arrangements closed North Peters Street to all vehicular traffic, shut off ingress and egress to and from appellant’s property, and deprived appellant of valuable rights therein. It was also alleged that appellant considered erecting improvements upon her property that would have yielded a, monthly rental of $200, and that she desisted from so doing because the appropriation of North Peters Street denied access to the property.
The complaint bases federal jurisdiction upon the existence of a federal question, alleging that appellant’s property was taken from her without due process of law in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, and that the requisite jurisdictional amount is in controversy.
The Fifth Amendment is a limitation upon the powers of the United States, and it is not charged that any act on its part caused injury to appellant; manifestly no federal question is presented with respect thereto. It also appears that the relief sought has been cut off, in whole or in part, by Louisiana statutes of prescription,
Aside from these considerations, a case does not arise under the Constitution of the United States so as to present a federal question upon which jurisdiction may attach unless it presents a basic dispute as to the construction of the Federal Constitution, and the right or immunity asserted is such that it will be supported if the Constitution is given one construction, and defeated if given another.
The essence of the cause of action is that the property was taken for the private benefit of the Railroad Company, not for levee purposes designed to benefit the public. It is not contended that by statute or otherwise the state conferred unconstitutional power upon its agents pursuant to which this appellant was wrongfully deprived of a property right, but that the injustice to her resulted from acts of the agencies in excess of any authority conferred upon them.
As the issues are drawn by the pleadings, the decisive question on the merits is whether the appropriation of the street was for levee purposes (a public use) or for the private benefit of the Railroad Company. This issue involves no construction of the Federal Constitution, but only the determination of a question of fact. The court below was without jurisdiction to entertain this suit,
Heirs of Burney v. Ludeling, 47 La. Ann. 73, 16 So. 507; Sims v. New Orleans Ry. & Light Co., 134 La. 897, 64 So. 823; Dean v. Chicago R. I., etc., R. Co., 149 La. 529, 89 So. 683; Art. 3536 of the Louisiana Civil Code.
Cf. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Armstrong v. Alliance Trust Co., 5 Cir., 126 F.2d 164; Dobie on Federal Procedure, pages 164, et seq.
Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 5 L.Ed. 257; Starin v. City of New York, 115 U.S. 248, 6 S.Ct. 28, 20 L.Ed. 388; King County v. Seattle School District, 263 U.S. 361, 44 S.Ct. 127, 68 L.Ed. 339; Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Armstrong v. Alliance Trust Co., 5 Cir., 126 F.2d 164.
Mayor, etc., of City of Savannah v. Holst, 5 Cir., 132 F. 901. Cf. Muse v. Arlington Hotel Co., 168 U.S. 430, 18 S.Ct. 109, 42 L.Ed. 531; McCain v. City of Des Moines, 174 U.S. 168, 19 S.Ct. 644, 43 L.Ed. 936; Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737.