Louisiana Gas Service Co. v. St. Tammany Gas Utility District No. 1

189 So. 2d 304, 1965 La. App. LEXIS 3836, 1965 WL 155014
CourtLouisiana Court of Appeal
DecidedNovember 16, 1965
DocketNo. 6584
StatusPublished
Cited by2 cases

This text of 189 So. 2d 304 (Louisiana Gas Service Co. v. St. Tammany Gas Utility District No. 1) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana Gas Service Co. v. St. Tammany Gas Utility District No. 1, 189 So. 2d 304, 1965 La. App. LEXIS 3836, 1965 WL 155014 (La. Ct. App. 1965).

Opinions

LOTTINGER, Judge.

This is a suit for a declaratory judgment seeking to have Act. 415 of 1960 (R.S. 33 :- 4301-4308) declared unconstitutional. The Trial Judge favored us with written reasons for judgment which we believe clearly set forth the facts involved, and we quote from those reasons the following:

“The Louisiana Power and Light Company obtained a franchise from the Parish of St. Tammany to lay gas lines and furnish gas services Parishwide on the 17th day of March, 1955, for a period of fifty years with right to excavate and lay pipe and remove same along roads, highways, streets, etc. of the Parish, which franchise in due course was transferred to the Louisiana Gas Service Company, the plaintiff herein. The defendant, St. Tammany Gas Utility District No. 1 of St. Tammany Parish was created by an ordinance of the [306]*306Police Jury on June 18, 1964, under Revised Statutes 33:4301-4308 or Act. No. 415 of 1960 for the purpose of constructing a natural gas transmission and distribution system. The territory covered by this Ordinance was Wards 5 and 6. The plaintiff, Louisiana Gas Service Company, did not protest the action of the Police Jury of June 18, 1964.
On October 5, 1964 the Police Jury extended the gas district of the defendant to include Ward 2 and parts of Ward 3 and 10. The present suit was filed December 4, 1964 seeking judgment in favor of the Louisiana Gas Service Company, the plaintiff, and against the defendant, the St. Tammany Gas Utility District No. 1, the Parish of St. Tammany and the State of Louisiana declaring Sub-paragraph E, Part 1, Chapter 10, Title 33, Louisiana Revised Statutes of 1950 (R.S. 33:4301-4308) being Act 415 of 1960 unconstitutional and declaring Ordinance No. 352, 350 and 369 of the Police Jury of St. Tammany Parish, Louisiana unconstitutional and that St. Tammany Gas Utility District No. 1, St. Tammany Parish, Louisiana is illegally created and that all actions taken by and on behalf of said St. Tammany Gas Utility District No. 1 are without effect.
After the amended ordinance of October 15, 1964 extending the gas district, the plaintiff was stimulated into action and stepped up its activity in serving new and additional customers and extending its lines.
The defendants filed a plea of estoppel on February 1, 1965 setting up that the gas district was properly and legally created by the resolution of the Police Jury adopted on June 18, 1964 after notice and hearing in accordance with the provisions of the above cited law and Article XIV, Section 14 of the Constitution of Louisiana, that the plaintiff received a notice and had actual knowledge of the hearing and that the Police Jury would hear all objections and pass upon the same but that the Louisiana Gas Service Company made no appearance and filed no protest to the creation of the District, thereby waiving any right to thereafter protest. At the same time, February 1, 1965 the exception of no cause and no right of action was filed in that it claims a perpetual franchise and privilege, etc. and that the principal contention of the plaintiff is that the law and the Ordinances are unconstitutional, that Article XIV, Section 14 and particularly Article XIV, Section 14(m) provides the authorization for the action of the Police Jury in creating the gas district, that the district was validly created under the provisions of Act 415 of 1960, that the Police Jury’s action is final and conclusive, made after a hearing, that the provisions of Act 415 of 1960 or R.S. 33:4301 requiring consent of a gas utility company is merely a directory and not mandatory and is not intended to provide private utility company veto power over the official acts of the Police Jury and in the alternative the Act only requires consent as to areas actually being served by a gas utility company and that the right to protest must be preceded by such service; that the consent of the plaintiff was not required and it had no right to protest the creation of the district until the service was being provided within the area affected.
On the same day, February 1, 1965, the Gas District, the defendants, filed an answer denying substantially the allegations of the plaintiff also setting up the facts alleged or plead in the exceptions referred to above and in recon-vention sets out that the franchise of plaintiff is void, that since the filing of the suit the plaintiff is void, that since the filing of the suit the plaintiff has commenced to lay pipes, mains and connections within the area over which [307]*307the District has authority and jurisdiction and that as a result the Gas District will continue to suffer irreparable damage and injury and the ability of the District to perform its public functions will be impaired, if not completely destroyed, if the Company is allowed to extend its facilities and services into the area over which the District has authority and jurisdiction and prays for judgment in favor of the Gas District as plaintiff in reconvention, declaring the franchise granted by the Police Jury of the Parish of St. Tammany on the 17th day of March, 1955 of the Louisiana Power and Light Company to be null, void and of no effect and in contravention of Article XIII, Section 7 of the Louisiana Constitution and further praying that the plaintiff, Louisiana Gas Service Company, permanently be enjoined and prohibited from laying these lines, mains, connections and from extending or attempting to extend its facilities and services into the area within the boundaries of St. Tammany Gas Utility District No. 1.”

After a trial on the merits, the Trial Court entered judgment in favor of the defendants, St. Tammany Gas Utility District No. 1 of St. Tammany Parish, Louisiana, and the Police Jury of the Parish of St. Tammany, Louisiana, and against the plaintiff, Louisiana Gas Service Company, and dismissing the plaintiff’s action at plaintiff’s costs. The judgment further granted judgment in the favor of plaintiff and against the defendants decreeing that the franchise of the Louisiana Gas Service Company granted to them on March 17, 1955, by the Police Jury of the Parish of St. Tammany to be valid. In addition, the Court rendered judgment in favor of the defendants and against the plaintiff decreeing that the provisions of Act 415 of 1960 or R.S. 33:4301-4308 were constitutional. The judgment then went on to find that the acts of the plaintiff complained of in the reconventional demand filed by the defendant were injurious to the defendant and in impairment of their rights, and accordingly, the Court granted judgment in favor of the defendants and against the plaintiff enjoining and restraining the plaintiff from extending its lines into the area of St. Tammany Gas Utility District No. 1 without authorization by St. Tammany Gas Utility District No. 1 of the Parish of St. Tammany, Louisiana. This judgment was rendered on April 12, 1965, and was read and signed in Open Court on May 10, 1965. It is from this judgment that the Plaintiff-appellant perfected this appeal.

Appellant’s brief contains several distinct points of argument which we shall treat separately, the first of which is to the effect that the Trial Court erred in holding R.S. 33 :4301-4308 and ordinances numbers 352, 350 and 369 of the Police Jury of St. Tammany Parish, Louisiana to be constitutional. This plea of unconstitutionality leveled at this particular section of the Revised Statutes and of the ordinances of the Police Jury of St. Tammany Parish is based upon appellant’s premise that Act 415 of 1960 (R.S.

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Bluebook (online)
189 So. 2d 304, 1965 La. App. LEXIS 3836, 1965 WL 155014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-gas-service-co-v-st-tammany-gas-utility-district-no-1-lactapp-1965.