Brief in Opposition to Petition for Writ of Certiorari — Southern California Gas Co. v. City of Los Angeles

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WAN 19

‘IN THE

~ Supreme Court oi. ol the United.

‘ ; ).” Octenan Perit 1958 .

oe . : : . \:

aa No. 598

* Vos PET Re rene \

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SOUTHERN CALIRORNIA GAS CoMpas\, a corporation, |

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Bm City.or Los ANGELES, a municipal corporation

Ft ; : = ss R Spumdent,

ead ca ern “a,

m= 6Brief in Opposition to Petition for Writ of C ‘ertiorari

to the Supreme Cour t of the State of California,

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. KOS ER AR NELERGH;

° - ° Attor* He,"

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; Nia! City Attorney,

2 : Aki : CLA: ze, : E. H ILE,

D. puty City Bittoriey

, : . 400 City-HB; A

hos Angeles 12. Calffirnia,

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° es igs Attorneys for. oe

ME So. Tac, Law Printers, Las Angeles. Phone 4. ‘. 6-917i.

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‘TOPICAL INDEX

PAGE

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* No federal question is I I sis site scespelesiessessinnsesaics wee ¥

. ae Il.

Question presented ......... ts sseees Siassacahiosiotl Ete Wee \3

ee III. es

. The “Statement of the Case” set forth in the petition is mis-

‘gading in its mixture of law and opncts. ipaenichnipisltiisnansdibicaeblacnss 4

; & IV,

No reason exists for the issuance of the writ requested herein.... 6

Conclusion. ......... . . eel eres

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. TABLE OF AUTHORITIES CITED

* California v. Marin Municipak Water District,. 17 Cal. 2d 699,

ee Te Fa inchs tre peeaiciqeinnenstnnaitcipninnnsainnenicatnnciin

_ Chicago, B. & Q. R. Co. v. Chicago 166 U. S. 226, 7s. &

-$81,-41 L. Ed. 979.:

- Chicago, B. & Q. R. oe v. Illinois ex rel. Grimwood, 200 a

561, 26 S*Ct. 341, 50 L. Ed. 596

sense eecnessa a pei eAnediadncdiidsassacadegnee

Grass Valley*v. Walkinshaw, 34 Cal.-2d 595, 212 P. 2d 804. lises 1

CASES. ‘ ; PACE

ba

Herndon vy. State of Georgia, 295 U. "S.- 441, 55 S. Ct. 7%, .

79 L. Ed. 1530... bcabavee sabisiets

Louisville Gas & Electric Co. v. Commissioners of Sewerage of

Lediediie 33-°S. W: 2d 344 a ce

McCoy v. Shaw$277 U: S. 302, 48 S. Ct. 519, 72 L. Ed. 891...

Mobile, etc. R.,Co. v. Mississippi, a9 U. S. 187, 2s.

650, 52 L. Ed. 1016............. Sabina bnabintascesintca Rained

National Water “Works Co: of New York v. City of Kansas,

28 Fed. 921 iniehohinicidaial ETN

New Orleans ‘Gaslight. Co. v. Drainage Comm. of New —

197 U. S. 453, 25 S. Ct. 471449 L. Ed. |g re icudacs heme

es apes Public Service Inc. v. City of = Orleans, 281

.S.-G32, 53S. CG. 449, “41. Ed. 1115....

People’s Gas, Light and Coke Co. v. . City of Chicago, 109 K. &

2d 773 annie : sreed- ee rear 3 Rcchnseiadneidndnbcescebanabenenahe daumeinbeaceseecusbanss

Radio Station WOW v. Johnson, 326 U. * 120, 65 S a *

ws OE ek. cesta |

Transit - Commission. Long Island Railroad Co., et. al., 253° °

N. Y. 345, 171 N.-E. 565......: pidbiateniigaiaasiene: - acpibiasaiee

United States Fidelity & Guaranty Co. v- State of Oklahoma..

250 U. S. 111, 39 S. Ct. 399, 63 L. Ed. 876...e.assceseeengeesnoom

~ Western Gas Co. of Washington v. City “of Bremerton, 153

Py Be eclsceldusienbabtecaiaanie te

ie =)

-* :

Pe rai . . RULES es PAGE

Rules of the United States Supreme Court, Rule 19.......:........ aoe

ne Statutes | aes

California Public. Utilities Code, Sec. 10101 et seq.--ca--0--.-- = 2

“United States Gode, Title 28, Sec. 1257 (2) .--cccseocseccsssseenceeneee =

United States Code, Title 28, Sec. 1257(3) ocrcssscocsecccssercssnne, 3

United States Constitution, Fourteenth Amendment...............--- a 6

IN THE

- Supreme Court of the United States

| | ae Ocrones —— 1958

| 36 we | aS

SOUTHERN CALIFORNIA GAS COMPANY, a ons

itioner, 7

x

| a eee

City or Los ANGELES, a murtjcipal corporation, i

_ Respondent. ‘Ne :

‘Brief i in hincitisin to Pea for Writ of Certiorari

to the oer conet of the State of California.

\

Saieets California Gas ‘Coyipany has sathidisel ae

a writ of certiorari directed to the Supreme Court of the

_ State of California to review the decision of that court

- tn the above entitled. matter. It is submitted that,” for —

the reasons ’ hereinafter set forth, the petition | ‘should be -

- denied. Pica eon i

No Federal Question Is Properly Raised.

Petitioner states at page 2 of its petition. that

“The jurisdiction of this. Cotitt is invoked Onder

28. 0: ‘S..C.1257(2). since the rights, privileges and

immunities of the Petitioner since the inception of.

the case have | been ‘and. are now claimed under the

guaranties and. protections of the Constitution of the

United States. e: S

Petitioner's claim of —. must be based on R

U. S.-C. 1257 (3);. not: 28 U.S. €. 1257 (2) as it re.

cites. Its so-called “claim”’ of Dia under the United

States Constitution is apparently. based on (1) its alle

gation in Paragraph III of. its second cause of action in

its amended complaint that the “taking, damaging and

“appropriation” of its property without compensation there-

for was without due process of law and thereby violated

‘the Fourteenth Amendment to the Canstitution of ‘the.

United States, and (2) the claim upon the very last page

of its Petition for Rehearing before the California Su- _

*- preme Court that ‘the action of the CQ in -requiring

~ such relocation i is a taking or damaging of’ the Companv's

rights granted to it by the franchise” and thereby entitled .

the company to compensation under the’ provisions of the ©

_ Fourteenth Amendment to the United States Constitution.

-The.case was tried upon an agreed statement of facts. ”

' + The trial court, simply adopted such agreed statement as

its findings of facts and concluded as. a matter of law

that plaintiff ( petitioner herein) was entitled to’ a .money

ag mR against. the City in the sum stated ‘therein.

No finding was‘ever requested ofor made by the .trial .

penn upon the relatively’ hidden and uhurged | federal

question mentioned in the amended complaint. Under

‘such circumstances we submit that question should not he

‘considered a substantial féderal question and jis, not en-—

_ -titled to.a review..by ‘this Henorable: Court. (U.S. Fi

» delity & Guaranty Co. v. State of Oklahoma, 250 U.S

-111, 39 S. Ct. 399, 63 L. Ed. 876.) “Further, the raising

' ofa federal question at the time of seeking a rehearing -

before the State Supreme Court does not suffice to open

' stich question to review in the United Stares Supreme

‘Court. (Radio Station WOW v. Johnson, 326 U. 5.

120, 65 S. Ct, 1475, 87 L: Ed. 2092: Herndoit v. State

= ie |

: of Georgia 205 work . 441, 55 S. Ct.- 794, 79 L. Ed.

1530.)

In any event, the basis of the determination by the

. California ‘Supreme Court, to wit: that the required re-

location by a‘utility of its facilities in a public street to

make way for a governmental use thereof ‘is not a “tak- |

ing” of those facilities or of the franchise or of any

rights secured thereunder, is in accord with literally

“hundreds of’ casés throughout the United. States, some

of the strongest. of which were decided by this. very court

(see Paragraph IV below ).. We neither have knowledge

‘of nor has petitioner cited us to a single case ‘to the con-,

-trary.of the foregoing principle and thus, we submit,

there is not presented to this court a “matter heretofore

_ undetermined by it as. required by Rule 19. of the Rules

of this Honorable Court.

The further determination of the California Supreme

Court that a municipality exercises the state police power ,

in laying its sewers within streets outside the municipal

boundaries and in doing’ so may require the relocation

of interfering utility lines therein is one solely. of state

concern and as such is not subject to review by this Court. |

(28 U. S. C. 1257(3); McCoy v. Shaw, 277 U. S. 302,

48S. Ct. 519, 72 L. Ed. 891; Mobile, ete., R. Co: v.

Mississippi, 210 U.S. 187, 28 S. Ct. 650, 52 L. Ed. 1016.)

Il.

~ Question Presented.

Petitioner sets forth at page, 2 of its petition the

“Question Presented” ‘as being whether. public utility:

property is protected by the due. process -clatise . from.

forced “removal” ‘without compensation to make way

for “other underground facilities” to be installed by a,

“public agency ” outside its own jurisdiction, x .

It should be noted from the Agreed. Statement of Facts--

"and from the decision of the California Supreme Court

that the foregoing statement of the question presented

is far beyond the issues of the instant case.. The ques .

tion présented and determined in the instant case is simply

whether a public utility must relocate at its ‘own éxpense

its lines underlying public streets in unincorporated area -

.to make way-for a sewer -beirig’ installed therein by a

municipality: We wish to emphasizé that ‘the ‘instant

case involves (1) relocation of- utility facilities, not re.

* moval thereof, (2) to make way for a sewer, a govern-

. mental function, not some proprietary function, and (3)

at the behest of a California ‘municipality having in gen-

eral plenary powers (Grass Valley v. Walkinshaw, 34

Cal. 2d 595, 212 P. 2d 894), not some public agency of

perhaps enumerated or limited powers only. ©

ME ta lg St

The “Statement of the Case” Set Forth in the Petition

- Is Misleading in Its Mixture of Law and. Facts.

The facts of this case’ are neatly and succinctly set

forth in the opening paragraph of the opinion of the Cali-

fornia Supreme Court (page 5, Appendix “B” of the

Petition for Writ of Certiorari herein).

Petitioner’s “Statement of: the Case” -is primarily an

argument on the: law’ and ‘apparently: misconstrues_re-

spondent’s contentions and the aexpress holding of ' the

California Supreme Court. ‘For: example,. petitioner first

sets forth at page 3 of its petition that “Respondent City |

obtained its right to install a sewer in the same streets

(as the petitioner) from he same, County Board on De- ;

- cember 1, 1953,” and further that “The City had no

ey eee -

by the grant from the County,

power to install sewers ‘in county streets except thusly

” citing California Public —

nin

Uiilties Code, Section 10101, et seq. Quite contrary to

the above; the California Supreme Court: expressly stated,

“Such obligations (upon utility to relocate its facili-_

‘ties in county Streets . ke way for governmental im-

provements being installed by a municipality) ‘rest. on’

‘the paramount right of. the people as a avhole to use the’

public streets wherever_located, and the fact that a fran-

_chise is granted by one political subdivision as an agent

=

of the state (citations) does not defeat the right of an- .

other such agent acting in‘its governmental capacity to

invoke the public right for the public_benefit. (citations).

The fact, that the city’s use of county streets for its

sewers is authorized by section ‘10101 of the Publie Utili-

ties Code has-ne bearing on the applicability of the fore-

‘going,rule. ... . In the present'case . . . the city is

exercising one of its most important governmental powers,

a power so important that itis one of the few powers

it may ‘exercise outside of its territorial limits ‘without

express authorization (citations).” " (Petition, Appendix

“B”, pages 7 and 8.)

Later in this “Statement of the Case” at page 3 of the

petition, petitioner states that “By virtue of this grant

by the County Board, the City then became possessed of

a franchise. similar and equai to that of -petitioner, ac-

ft

¢

cording to established State law. California v. Marin —

Municipal « Water District, 17 Cal. 2d 699, 111 P. 24-651

(1942).” - The California Supreme Court, on the other

_ hand, expressly. pointed out that the Marin case involved

a municipal “water district “operating in a proprictary

capacity, and concluded that «it does not follow that

a‘franchise exercised by, a city in its governmental ca- -

- pacity under that section (Public Utilities Code,, section

10101) is subordinate toa prior franchise granted to a

public - utility.” (Petition, Appendix “B”’, page 8.)

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3 . A a ;

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Petitioner in similarly - misstated the facts When it

claiins at. page 4 of the petition that. it “has asserted a

_ taking of.its property without due process and just com-

_ pensation in violation of the Fourteenth Amendment in

* every. court below.” __As* pointed_outabeve,—petitioner’s

only reference to the Fourteenth Amendment in this en:

tire case has been a passing reference thereto in its

amended complaint (upon which no finding was made).

and another reference upon the last page of its Petition

.for Rehearing’ before. the. California Supreme ~Cour,

Furthermore, no mention whatsoever of* this point was

made by petitioner in the District Court of Appeal.

| ae |

No Reason Exists for the Issuance of the Writ

Requested Herein.

- Petitioner states dt page 2: ‘of its petition “that. “The

constitutional provision involved is the due pfocess clause

a the , Rourt nth. Amendment.” _

It 1s ‘subshitted that the law is clear and firmly estab-

lished that a utility’s property has not. been “taken”

within the meaning of that word as used in the Four-

teenth Amendment when the relocation thereof within

public streets is required to. make way for a gov etnmental

improvement. The following cases are mee illustrative

~ of such principle.

In New Orleans Gastijht Co. v. Drainage. Commission

of New Orleans, 197 vz S. 453, 25 S. Ct. 471, 49 L: Ed.

831, the leading. case on the subject, it was ietermined |

by this Court that the plaintiff company, which held an -

— franchise to lay its gas lines in the public

Streets; gpust relocate same at its own expense so as t0

: make way for ‘a ‘municipal drainage system, although no _

such ‘tiles: was spelled out or even shina ort in

‘its franchise. In support of such determination. it was

‘there stated, at: page 462: _

“The gas company. by -its grant fr fie hae Min slab

quired no exclusive right torthe location of its pipes

in the streets, as chosen by it. under a general grant

of authority to use the streets. The city mgde. no

contract that «the: gas company should nt dis-

-turbed in the location chosen. In the exercise f. the °

police power of the state, for a purpose highly netes-

sary in the promotion ofthe public health, it has

becomne necessary to change the location of the pipes.

of the gas, compafiy so as to “accommodate them to.

the new public work. In complying with this re-

quirement at its own expense, none of the property

of the ‘gas: company has been taken, and the Suan

sustained is damnum absque injutia.”

In Chicago, B. & O. R. Co. v. Chicago, 166 U. S. 226,

17S. Cte 581, 41-°L. Ed. 979, this Court likewise held

at page 252 that property damaged or injured by a re-

location thereof to make .way for a public use

os See

°

AT 9

is not, within the nieaning of the Constitution,

-taken. for public use, nor is the “owner deprived of

it without due process of law.”

Te Chicago, B. & Q. R: Co. 2’. Illinois ex rel. ge

wood, 200 U. S. 561, 26S, Ct. 341, 50° L. Ed. 596,

was again held that the plaintiff: must assume the oe

of relocation ofits, facilities to make way for the public

‘improvement of an tnderlying water channel.: In that

case this Court stated at page 584, after referring. to

several.cases involving varied subject. matters, not limited

to drainage cases, that: .

“in each of: those cases this court intcnatallt

the principle that injury may often. come to private

x. ss ?

property as the: result of legitimate governmental

3 action, reasonably taken for the public good _and_ for

no other purpose, and. yet there will be no taking 0i

such property within the meaning of the constitu. -

tional guaranty against the deprivation of property

without due process of law, or against the taking’

of private property for public use without. comperisa-

tion. To thi case belongs the recent, and as we

think, decisive case‘of New Orleans Gaslight Co. 0.

Drainage Commission, ..."” 5

anemia

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___Simitartanguage is f is found in the cases of People’s Gas.

Light and Coke C>. v. City of Chicago (Ill., 1952), 10

N. E. 2d 777; Louisville Gas & Electric Co. v. Commis

stoners of Sewerage of Louisville (Ky., 1931), 33 SAW.

2d 344; New Orleans Public Service Inc. v. City of New

Orleans: (La, 1930), 281 U. S. 682, 50S. Ct. 449, 74

L. Ed. 1115; Western Gas“ o. OF Washington v. City of

Bremerton. (Wash., 1944), 13 3 P..2d 846; Transit Com-

_ mission v. Long Island: Railroad Co., et al., 253 N. Y.

° 345, 171 N. E. 565, 566; National Water Works Ca, of

New York v. City of Kansas, 28 Fed. 921. :

Conclusion.

It is submitted that for the. reasons above set forth the

- petition for writ of certiorari should be denied. , :

Respectfully submitted,

ROGER ARNEBERGH,

City Attorney,

BourRkE JONES,

Asststant City Attorney, .

Craupe E. HILKer,

Deputy City Attorney, )

Attorneys for’ Respondent.