97 F. 817 | U.S. Circuit Court for the District of Eastern Wisconsin | 1899
This cause is brought on for final hearing with voluminous testimony and extended argument upon the merits; but a question of jurisdiction is presented in the closing argument on behalf of the defendant city of Racine which bars all further inquiry, if the proposition is well founded that the complainant and the defendant Racine Water Company must be aligned on the same side of “the real matter in dispute,” as disclosed by their pleadings, attitude, and interests. Railroad Co. v. Ketchum, 101 U. S. 289, 298, 24 L. Ed. 347.
The complainant is a corporation of Massachusetts, and, as trustee for the bondholders, is (he mortgagee of the franchises and property of the defendant Racine Water Company, a Wisconsin corporation, under two certain mortgages securing bonds for the aggregate amount of $500,000. The city of Racine and Racine Water Company are named defendants, and the bill alleges hostility on the part of the people and municipal authorities of the city against the water company, and unauthorized requirements and conduct, by which the water company is Oppressed, and the security of the complainant is endangered; and further avers that extreme tests of the works are ordered at times and under conditions not authorized by the ordinance; that a system of automatic flushing of sewers by means of tanks was adopted by the city after the works were coni
The answer of the defendant water company substantially admits all the material allegations of the bill. The acts of the city and of the water company in reference to the matters in controversy are recited in different form, and with more detail, but without taking issue upon any fact which is material. As averred in the bill, the water company asserts that the excessive use of water by the city was without its consent and against its constant protest.
Upon this state of pleadings, and with the same attitude preserved throughout the testimony and hearing, I am constrained to the opinion that this court has no jurisdiction over the controversy. The Racine Water Company is a resident of Wisconsin, is an indispensable party to the action, and in no aspect of the dispute stands opposed to the complainant. Counsel for complainant concedes that jurisdiction cannot be maintained if the interests of the water company and of complainant are identical, but insists that “there must be no antagonism at any point,” and that “the situation of the defendant must be such that it can, in the prosecution of the suit, go along with the complainant at every step.” If the contention on the part of the' city can be taken into consideration, namely, that the water company induced the adoption of the wasteful flushing system, and became bound for its continuance, and if it be assumed that such defense could not be .asserted against the pre-existing rights of the complainant, although good against the water company, there is seeming force in this distinction. Rut I am satisfied that it is not applicable here, for the purpose of determining jurisdiction, even if the general rule is modified, as the complainant con