ii.EmV· 01' SPOKANE·.
one side a citiZen of this state, and on the opposite side 'several citizens of the same state, is not, according to the rule given by the supreme court, one in .which there is involved a controversy between citizens of different states, and the demurrer must be sustained for 'want of jurisdiction. Blacklock v. Small, 127 U. S. 104, 8 Sup. Ct. Rep. 10tl6. The case is distinguishable from Stewart v. Dunham, 115 U. S. 61, 5 Sup. Ct. Rep. 1163, by the important consideration that in this case the primary object of the suit is to obtain an adjudication which must necessarily affect directly the interests of the interveners; whereas in the case referred to, which was a creditors' bill, the action of the court upon the petitions of intervening creditors, who claimed no liens upon the assets of the defendant, was merely incidental and ancillary. The question whether the court has jurisdiction of the case must be determined in the light of all the facts shown by the record at the time of the hearing. I am therefore constrained to hold that, although the demurrant does not appear to have such an interest as to entitle him to complain of a defect of parties, nevertheless, as it now affirmatively appears that the court is without jurisdiction, the case cannot proceed in this court. Morris v. Gilmer, 129 U. 15. 325, 9 Sup. Ct. Rep. 289. Let there he a decree of dismissal.
CLA PP v. CITY OF SPOKANE et 01.
(Circuit Court, D. Washington, E. D. October 29, 1892.)
STREET RAILWAy-DAMAGE TO FRANCHISE BY CONSTRUCTION OF SEWER.
Tile location of a sewer in a city street must be reasonable, with respect to the rights of a street railway, the construction of which was authorized by a prior ordinance, and whose property might be damaged by the construction of such sewer; and such location, if made In a part of the street occupied by the railway, lilO as to compel it to suspend operations, and inIDct great damage upon it, is unreasonable, when other parts of the street are equally suitable fot' the sewer. But the city is not required to incur any additional expense by reason of having authorized the building of such road.
2. SAME-RIGHTS OF MORTGAGEE.
A mortga!;e upon a street railroad Is as much entitled to protection from unlawful Injury by such action on the part of a city as any other kind of property. An allegation by the mortgagee that such action will impair the value of his security to an amount exceeding $2,000 is sufficient to give jurisdiction to a federal circuit court.
CIRCUIT COURT-JURISDICTIONAL AMOUNT.
4. MUKICIPAL CORPORATIONS-'LoCATION OF SEWERS-VESTED RIGHTS.
The and General Statutes of the state of Washington provide that the people or cities may frame and establish a charter for the thereof, and aiso confer upon cities, in general terms, the powers of mWllclpal corporations, and grant certain powers and certain restrictions, in specific terms, but do not contain any specific grant of power to locate sewers. After the rights of the mortgagee of a street railroad had become vested, a city adopted a charter containing a specific provision tIiat the city should have power to locate sewers. Held, that such power existed only by virtue of the pro\ision of the general statute giving cities power to control their streets, pro\ide for the health and general welfare of their inhabitants, and that its exercise must be reasoll.'lble with
FEPERJ\.L . REpORTER.,
City of Tacoma v. State, (Wast.
rp.ference to the rights of tho St.) 29 Pac. Rep. Si7, followed.
6. EQUITY JuRISDICTION OF FEDilllUL COURTS-NoT ENLARGED BY STATE LAWS.
If the mortgagEe has an adequate remedy at law, by an action for damages, a suit in equity, though permitted by state laws, should not be entertained by a federal CGun.,.
Where it appears, however, that the railway compnny is insolvent; that it "rill not be able to repair the damage or operate its road thereafter;
that its property, after the constl'Uction of the sewer, would not be adequate security for the mortgage debt; that the bonds will be worthless as negotiable Paper; and tliat. the city, by reason of constitutional restrictions, is in such financi8J.c.ond!tion that a judgment against it would not be collectihle,-a cause of equitable jUrisdiction is made out, and an junction pendente lite should issue.
In Equity. Bill by Robert :J;J. Clapp, mortgagee of an electric street railway, against the city of and Rolla A. Jones to enjoin the construction of a sewer in such manner as to unnecessarily damage the railway, and obstruct im operation. On demurrer to bill. tained. An amended bill being filed pending consideration of the case upon a rehear4J,g, showing that plaintiff would suffer irreparable injury by impairing the value of his security, an injunction pendente lite was granted. Turner, Graves & McKinstry and Kinnaird & Happy, for complainant. P. F. Quinn, for
HAWORD, District Judge.. , This is a suit for an injunction to prevent the city of Spokane from interrupting the operation of an electric street railway, upoilwhich the complainant holds a mortgtL!;e, by constructing a sewer in one of the streets in which the railway is located. Tlie railway is donble tracked, and occupies the middle P[LJ't of the street; 'having a single ,line of poles set in the space between the tracks, supporting crossbeams from which the wires are suspended. It is owned and being operated by a domestic corporation to which the city gave a .franchise authorizing the construction of said railway with double tracks in the middle of said street, with a single line .of poles between the tracks, and the operation thereof 1Iy the system adopted. It ililnow proposed to put a sewer in the center of said street, in such manner as to necessitate the taking' down of said poles, and the obstruction of the tracks so as to prev'lnt the operation of the railway during the time to be consumed in its construction; and by having the sewer in the center of the street the railway will be perpetually subjected to annoyances, by the makiug of excavations for the purposes of connecting with and repairing the same. The bill of complaint avers that, by taking the center of the street for the sewer, the railway property will be damaged, and the value of complainant's security impaired, which damage is wholly unnecessary; there being a space 43. feet wide in the street on the outside of each track. Upon the hearing of the demurrer to the bill, the defendants' counsel has, by argument and authorities, established these propositions: That a sewer in said street is essential to the public welfare, and the city has power to construct it; that the city has con·
CLAPP V. CITY OF SPOKANE.
trol of said street, and every part of it, and may, if necessary for the accomplishment of any public work which it is authorized to undertake, obstruct it, and suspend all travel therein; that the franchise for the railway is subordinate to the power of the city to control said st,reet, and the city may even require the owner of it to remove the railway at its own expense, if necessary for the purpose of putting a sewer in said street. While the power of the city is ample, it is also limitpd. The validity of its ordinances must be tested by the rule that reason must control its conduct, and the courts are required to shouider the burden of deciding what is reasonable, wheneYer individuals complain of unreMonableness in the provisions of city ordinances affecting them, (1 Dill. MuD. Corp. [3d Ed.] §§ 319-321;) and, in the exercise of all the powers of a municipal corporation, the bounds of necessity and reason must not be overstepped, to the injury of private rights. Now, is it unreasonable and oppressive for the city, after having, by its ordinances, authorized the construction of this street railway, and designated the particular part of the street to be occupied. by it, and after the complainant, induced by its grant of the franchise, has invested his money in bonds of the railway corporation, secured. by said mortgage, with ample room elsewhere in the street, to so locate a sewer as to cause the greatest damage to the railway? I think that it is, and that the proposed action of the city is therefore an unlawful exercise of its power. There may be a sufficient reason for putting the sewer in the center of this street, which can be shown by the defendants when they answer the bill. But, as no necessity or reason appears from the statements contained in the bill, the demurrer cannot be sustained on this ground. The bill avers that it is possible to construct a sewer in the center of the street without interfering with the railway. But, as the contrary is not alleged, I assume that it would be impracticable to do so, on account of the additional cost; and I have therefore treated. this as an immaterial allegation. I hold that the city is not required to incur any considerable additional expense by reason of having granted a free right to the use of the street for this railway. The amount of the damage to the plaintiff by reason of the impairment of the value of his security, to result from the threatened injury to the railway, is alleged to exceed the sum of $2,000. Therefore, there is no lack of a sufficient showing as to amount in controversy to entitle the plaintiff to sue in this court. The authorities cited by defendants' counsel prove that a mere creditor of a corporation has no standing in court to litigate concerning the property of the corporation. But a mortgage upon property for the security of a debt is the property of the mortgagee, and as much entitled to protection from unlawful injury as any other species of property. Morgan v. Gilbert, 2 Fed. RBp. 835-838, and authorities therein cited. The last objection urged. is that a suit in equity for the causes alleged cannot be maintained, for the reMon that the complainant has a plain, adequate, and complete remedy at law. That is to \Say, whatever injury may be done to him can be fully compensated in
da.m.a.ges. In my'opiniori,this objection is well founded. True, the lawl!lof this state,:as constftiel:larid declared by its supreme court, do n01iauthorize :amunicipal to take or damage private property without the owner's: consent, and do' entitle a property owner to an injunction to prevent injury to his property by city officers . and agents. But, .by express enactment of congress, the national courts are forbidden to entertain a suit in equity in any case whelle adequate, and complete remedy may be had at law; and the equity jurisdiction of these court·s cannot be extended by ata.te laws. Rev. St. U. S. § 723; Whitehead· v. Shattuck, 138 U. S. 146, 11 Sup. Ct. Rep. 276. On this ground, the demurrer will be sustaJ.ned
ON REHEARING. (November 11, 1892.)
Both parties being dissatisfied with· the foregoing decision, I have peI'D,litted them to make further arguments. In behalf of the city,. it is asserted that, by its charter, the city is given specific power to locate sewers in its streets, and that the action of the city government in the exercise of this specific power is not subject to the power. of the courts to pass judgment upon the reasonableness or unreasonableness thereof. The last proposition is well supported by authorities cited, including 1 Dill. Mun. Corp. §§ 328, 393; and it is true that the city charter does contain a provision declaring, in spe· cific· termEl, that the city government has power to locate sewers in the streem of the city. But this charter was framed and adopted by the people of the city themselves, after the rights of the complainant had become vested. The constitution and a general statute of the state gave the peo,pleof Spokane power to frame a charter for their city, and conferred upon the city, in general terms, the powers of a municipal corporation, and also granted certain powers and imposed limitations in specific terms. I do not find included in the enumeration of powers granted any specific provision relating to the location of sewers. That the charter of a city, framed by the people thereof under the constitutional and statutory provisions of this state, cannot be regarded as a grant of power from the state, is, in my opinion, established by the decision of the supreme court of this state in the case of City of Tacoma v. State, (Wash. St.) 29 Pac. Rep. 847. I hold, therefore, that the power of the city to locate sewers, and provide for the construction thereof, exists only by virtue of the general grant from the state of power to control its streets, and provide for the health and general welfare of its inhabitants; and, in the exerciseof such powers, it cannot unreasonably infringe individual rightB without liability to be called to account in the courts. Counsel for the city also calls my attention to the case of Hawes v. Oakland, 104 U. So 450, and relies upon it as an authority denying the right of an individual to maintain a suit in defense of the rights of a corporation. That case appears to have been instituted for the protection of the shareholders of a corporation by one of their number. This case is different. The complainant IS a mort·
II. NORTHERN PAC. R. CO.
gagee of the property of the 'Ross Railway Company. His rights and title are not merged in the rights and title of the corporation. Though he has but alien, that lien is his property, and a suit to protect it from injury by trespass a direct controversy between him and the trespasser. On the complainant's side, the argument consists mainly of suggestions of difficulties and obstacles which may prevent a recovery of compensation for the destruction of his security in an action at law. The difficulties and obstacles, however, are not shown by averments in the bill to which the demurrer has reference. An amended bill having been presented to me, and the application for an injunction pendente lite being renewed pursuant to leave granted, I am of the opinion that it now appears that irreparable injury to the complainant is threatened. The amended bill shows that the railway com· pany is insolvent; that it will be unable to repair the damage which will be done by constructing the sewer as proposed, or to again put its railway in operation; that the mortgaged property will not be of sufficient value, in the condition in which it will be left after the posts, wires, and tracks shall have been displaced, as proposed in the prosecution of the work of constructing said sewer, to produce, upon a sale thereof, more than a small fraction of the plaintiff's debt; that the threatened injury to his security will render his bonds unmarketable, and worthless as negotiable paper; that the city of Spokane is now in debt to an .amount exceeding $1,700,000, and, by reason of constitutional and statutory limitations upon its powers to levy taxes, collect revenue, and incur debts, a judgment against it for the amount of the damages which the complainant will sustain by reason of the acts threllttened will not be collectible. These new averments show that the complainant has no plain, adequate, and complete remedy at law. In my opinion, the amended bill must be answered, and the present application for an injunction must be granted.
HOGAN v. NORTHERN PAC. R. CO. Court, D. Montana. November 28, 1892.)
MASTER AND SERVANT-NEGLIGENCE-PERSONAL INJURIES-SCOPE OF EMPLOYMENT.
A railroad employe of mature years and long experience, who is injured while coupling cars in obedience to the orders of his immediate superior, cn.;mot recover merely because that duty is outside the scope of his employment., when he makes no objection to performing it, and there is no threat of dismissal in case of refusal. l'.filler v. Railroad Co., 17 Fed. Rep. 67, distinguished. Jones v. Railway Co., 14 N. W. Rep. 551, 49 Mich. 579, disapproved.
:At Law. Action by Thomas Hogan against the Northern Pacific Railroad Company for damages for injuries sustained while coupling cars, which was outside the scope of his employment by defendant. On motion to inlltruct the jury to find for defendant. Granted. Elbert D. Weed, for plaintiff. W. E. Cullen and Sydney Fox, for defendant.