Jonez P. Suthoff v. Yazoo County Industrial Development Corporation

642 F.2d 822

Jonez P. SUTHOFF et al., Plaintiffs-Appellants,
v.
YAZOO COUNTY INDUSTRIAL DEVELOPMENT CORPORATION et al.,
Defendants-Appellees.

No. 79-2992.

United States Court of Appeals,
Fifth Circuit.

Unit A

April 15, 1981.

Pyles & Tucker, Dixon L. Pyles, Jackson, Miss., for plaintiffs-appellants.

Campbell & Smith, Watkins & Eager, W. F. Goodman, Jr., Jackson, Miss., for Yazoo City, Miss., and Yazoo Public Serv.

Henry, Barbour & Decell, Haley Reeves Barbour, Yazoo City, Miss., for Barbour and Neely.

Vardaman S. Dunn, Jackson, Miss., for Yazoo County Ind. Dev., Yazoo County and Yazoo Port Comm.

Appeal from the United States District Court for the Southern District of Mississippi.

On Petition For Rehearing

(Opinion February 17, 1981, 5th Cir., 1981, 637 F.2d 337)

Before INGRAHAM, GEE and TATE, Circuit Judges.

PER CURIAM:

1

On petition for rehearing, the defendants-appellees suggest that the panel erred in assuming that Yazoo County did not have the power to expropriate, since Yazoo County has the power of expropriation for port commission purposes. See Miss.Code § 59-9-19.

2

Accepting the validity of the petitioner's assertion solely for the purpose of determining the jurisdictional issue presented on appeal, we conclude that the gravamen of our original holding need not be altered:

3

The allegations of the complaint (a) that public and private persons conspired to misuse a municipality's expropriation powers, (b) through the municipality's institution of eminent domain proceedings with no intent to condemn, and (c) but solely in order to coerce the private landowners to sell their property at a price far below value to co-conspirator entities not a party to the condemnation proceedings are sufficient to state a claim of § 1983 federal jurisdiction for deprivation under color of state law of individual federal constitutional rights.

4

The petitioners again urge the panel to follow the opinions of two other circuits, Beistline v. City of San Diego, 256 F.2d 421 (9th Cir. 1958), cert. denied 358 U.S. 865, 79 S. Ct. 96, 3 L. Ed. 2d 98 (1958), and Warrington Sewer Company v. Tracey, 463 F.2d 771 (3d Cir. 1972). However, as we noted in the original panel opinion, both of those opinions are distinguishable from the situation presented on the instant appeal: in neither Beistline nor Warrington did the property owner allege that the defendant expropriating body misused its coercive powers by instituting condemnation proceedings in order to force the price down for the benefit of non-parties, without the condemnor having any intention actually to expropriate the land for public use.

5

The petition for rehearing is DENIED.