322
FEDERAL REPORTER,
vol. 46.
casesthat:the,allegation of :v:aluewaslmproperly and colorably made, for the purpose of creating a cause within the jurisdiction of the court. If it held, mere averments of the pleader would outweigh the force of SW{lrn testimony I and that Glause of the judiciary act, regulating jurisdiction by the amount in controvery, would have little vital force when, property , real or personal, is the subject-matter of suit. The statute should be construed according to its spirit and intent. Suits properly within the jurisdiction of the court should he retained j others not embraced in that category should be rejected. It has been held that, in cases where the testimony leaves the value of the matter in dispute in doubt, all intendments will be in favor of the jurisdiction. Dwyer v. Bassett, supra, and authorities cited. But, as already shown, such is not the case here" The court is that the material averments of the plea are sustained by the proof, and that the bill, should be dismissed for want.of jurisdiction. Parley v. J{ittson, 120 U. S. 303, 7, Stlp. Ct. Rep. 534. It is accordingly so ordered.
SPOKANE ST.
Ry. CO.
V.
CITY
OF SPOKANE FALLS
et d.
(Oircuit COUTt, D. Washington, E. D. INJU:-lCTi01S''-STREET RAILWA y -
Avril 23, 1891.)
Where, in proceedings for injunction to prevent tbe destruction of plaintiff's streE;lt railway traqli, situated in one of the pllblie streets of defendant elty, it was denied by the answer that the track in question W'1S constructed in accordance with the reql1irements eithe!' of the city ordiUlLnGe or of the contract with the defendant tr,ans\t company pursuant to which it was built, and the imperfections and deficiencies thereof were specified, the burden of showing a compliance therewith is on the plaintiff; and, if no evidence is taken, but the case is heard on the pleadings, the allegations of the a[}swer must be taken as true; and, as it shows the construction of plaintiff's track til' be in violation of the very law under which it claims, the injunction will be denied.
In Equity. On bill. for injunction. Turner & Graves a,nd P.T. Post, for plaintiff. w.e. Jones, for defendants. HAJ:'FORD; J.. The time for taking evidence having expired, and 'no evidenpe havingoeen tai\:en by either party, cause was by the court set down for final hearingqn the bill and answers, and it has been brought on for hearing and finally submitted ap.cordingly. The complainant's professed object in bringing the suit was to prevent the destruction of a street railway track situated. in one of the public streets in the city of Spokane. In the bill it is averred that the track was so constructed,in all reslJects as to meet the requirements and fulfill the conditions of an ordinance of the city wnereby it was granted a franchiEle fora street railway in said street; also the requirements and conditions of a contract be.tween it !l0d the defendant" The City Park Transit Company." Upon the part of the complainant it is claimed that, by reason of having
ST.RY. CO... V.·"1'· ' OF llPOKANE FALLS. CITY , .
323
constructed said track andpeing the owner thereof,and by virtue of its franchise granted by the city, and pf Sliid contract, said property cannot be removed froin the street or d,estrQyed by or under authority of the city government, without those' cla'tises 'of the constitution 01 the United States which declare, "No state * * * pass any *' * * law impairing the obligation of contracts," "nor shall any state deprive any personof1ife, liberty, or property without due: 'process of law," being violated·. Jurisdiction of the case in this eournests upon this claim alone. The separate answers.of'the defendants, without evasion or qualification, deny that the track which is the subject oithe controversy has been constru6ted in conforlpity to the requirements c>feither the ordinance ofthe 'city or the contraetwith the City Park Transit Company, and they specify the imperfections oUhe track, and failures of the plaintiff to meet the requirements of the ordinance and contract aforesaid, in the following allegations: . "At sonl.a.points the said tracks are laid high above the graqe of the street, and at other points are laid below the grade of the street; that, from Bernard to Division"street, said street is, as laid out, about three feet lower on the north side than it is on the' south side; that, totally disregarding the rights of the city and the public in said street, the said complainant, in bUilding said tracks. laid the same on a level from the south side of the street to the north side tracks; and caused the street to be level, thus throwing the entire slopeof the street into a space of about 15 feet in width, and materially injuring- that part of the said street lying north of the north side of said track, a'od in so:n6 places rendering the same,by the manner in which said tracks are laid, absolutely useless for the public travel, aod materially injuring property lying on the north side of said street.:" , "Tl)at, in violation. of the terms of said agreement, said plaintiff used, in the construction of said road, rails whicb were old, and had been used anli worn for a considerable time, many of which were battered and twisted by usage. and were not first-class in any respect, and were manufactured of iron, and not of steel, and that it used in the construction of said road an insumcient number of ties to make. the same safe or proper to be used as an electric railway, and many less ties to the mile than is used in the construction of the Ross Park Electric Rail way; * * * and defendant further avers that the said line, as constrlH)ted by plaintiff on said Sprague street, as aforesaid, was wholly inferior. and in no respect equal, either in the character of the rails or the ties used in its construction, the manner of its finish or workmanship, to the said Ross Park Electric Railway. Defendant furtller avers that, at the time the said common council of the cHy of SVfJkane Falls passed the resolution set forth in the complainant's bill, the said track. by reason of the defective construction thereof, and the inferior and defective material used in the construction thereof, and hyreason of the negligence of the plaintiff in caring therefor, becaIPe so crooked, rough, and uneven, and otherwise defective, that it could not have been safely used as an electric railway." These several allegations of the defendants, although in form affirmative, are directly responsive tothe bill, and, by controverting the same, raise material issues, whereby the burden was laid upon the plaintiff of proving this part of its case by sufficient evidence. Having failed to introduce such proof, the allegations of the defendants must be accepted for the purpose of the case as being strictly true, and they present an insurmountable obstacle to the granting of equitable relief to the plaintiff.
324 AS}lle
"
nDERAL
presented to' this plaintiff obtained a valuable the city upon"specified terms 'and conditions. By acceptfra,nchise, it became obligate9. to comply with and fulfill 'those terms and conditions in the exercise: of the powers and enjoyment of the rights granted. The'le ,terms and conditions are matters, of prime importance to the people of the city generally, and by so disregarding its obligations as to such, conditi'op's in the construction of its railway as to obstruct travel in the 'street, and create.a. nuisance therein, the plaintiff became a vioJator of the very law upon which the rights which it is seeking to protect by an injunctionfrom this court must be predicated; and, being thus a violator of the law under which it is a beneficiary, it cannot, by reason of having been permitted tq construct its track in a faulty manner by any principle of estoppel,come into a court of equity, and ask to have the maker of the law prohibited from enforcing the provisions thereof, made for the protection and preservation of the common rights of all the people. On the face of the plaintiff's bill it appears that the city government is invested with the control of the public streets of the city, and burdened with the duty of keeping the streets unobstructed and in safe condition for travel, -a duty the performance of which necessitates the removal from' Sprague street of the obstruction placed there by plaintiff,-and it is to prevent the performance of such duty that this court is asked to exercise its power by issuing a writ ofinjunction. The plaintiff, while thus admitting and showing the powers and duties of the city respecting its streets, charges that the destruction of its tracks by the officers of the city, pursuant to a mere resolution of the city council, stitutes a wrongful use of force, und is therefore unlawful; and claims that, without, judicial process authorizing it, the nuisance created by placing valuable property in the public street, thereby obstructing. travel, cannot be lawfully abated; and in the argument the court is urged to grant an injunction to prevent such unlawful use afforce and destruction of property. This appeal, however, is' made to a court of equity, and the only answer it merits'is that the plaintiff, who makes the appeal, is not entitled to any consideration from the court, because it does not come into equity offering, on its part, to do equity, and its hands are,not clean. The contract between the pluiritiff and the City Park Transit Company. as I construe .It, provides for the building of such a railway in Sprague street as can be operated hy the latter company inconformity with the provisions of its charter, by whatever motive power it may see fit to adopt. The plaintiff having uI:ldertaken to build a track, und<,.r the contract obligated itself to build such a track as could be operated by the defendant company.. I do not mean by this tl;1atit was necessary to complete and fully equip the road for, operation py electric power, but it was necessary that so much of the.'road as complainant did construct should be proper and suitable forthe defendant's use. The, rails and ties should be of suitablfilmaterial, sufficient in number, and so constructed as to be available for'use as an'electric road, and the plaintiff could not, without violating the,contract on its part, place in the street a track unsuitable to the defendant's use, and not capable of being operated by it, and thereby
COWLEY 11. NORTHEItNPAC. R. CO.
325
exciuding it from the use of the street to which it was entitled under its franchise. as well as under said contract. The City Park Transit Company doel:l not appear, by any admitted allegations of the bill, to have ever approved of the manner in which the track was constructed, or to have accepted it as being ·built in performance of the contract, and it is not bound, by the law of estoppel, to accept as performance of the contract a structure which does not answer its requirements, but which is in fact a violation of the contract. The laws of this state make ample provision for preventing and punishing breaches of the peace, the unlawful use of force, and the malicious destruction of property, and afford ample remedies for all injuries inflicted by such wrongful conduct, and equity will leave a party, in the situation of this complainant, to obtain such relief or' redress as the laws of the land may afford. In granting a temporary injunction, this court deprecated the use of force, and held that it was the duty of the court, pending the adjustment of the rights of the parties by the final decree, after a full hearing of the cause upon its merits, to use its power by issuing an injunction to prevent the destruction of the property involved in the controversy; and there is no intention on the part of the court to swerve from the princi. pIes upon which that decision was founded, but the case is now presented for final determination, after the parties have had ample time to make 8 full presentation of the cause upon its merits, and upon this hearing, as the want of equity on the part of the plaintiff has been made apparent. no part of the relief pmyed for in the bill can be granted. Neither can any affirmative. relief be afforded to the defendants. The decree will therefore be entered dismissing the suit, at the plaintiff's costs.
COWLEY '11. NORTHERN PAC.
R. Co.
(Olreuit Oourt, D. Washingum., E. D. April 15,1891.) EQUITT-ADEQUATJI REMEDY AT LAW-VACATION OP JUDGMENT.
Where, in a suit in the territorial district court of Washington, judgment Is ren· dered upon a stipulation of counsel made in contravention of defendant's instructions to his attorney"he has a proper and adequate remedy by a motion to vacate under the Code, and equity will not take jurisdiction of a bill to annul and enjoin the execution of the judgment filed before the Wile within which a motion to VI*cate could have been made had expired.
In Equity. Bill for injunction. George Turner, for plaintiff. J. H. Mitchell, Jr., for defendant HANFORD, J. This case was commenced in the district court or the territory of Washington for the fourth judicial district, and, according to the practice in such cases under a statute of the territory, it was tried before a reieree, who reported to that court the evidence introduced by.