The bill alleged that the plaintiffs were corporations operating
electric street cars and distributing electric current under
perpetual franchises in the city; that, under supervision and
direction of the city authorities, they constructed a high tension
wire to obtain necessary additional current from another company;
that, afterwards, the city council, by resolution, directed speedy
removal of the wire, declaring it dangerous to life and property,
contrary to the fact, and that, unless restrained, the city would
forcibly remove and destroy it, thereby interfering with the
operation of plaintiffs' railway, lighting, and power systems, and
causing them irreparable damage, in violation of their rights under
the Contract Clause of the Constitution and the due process clause
of the Fourteenth
Page 259 U. S. 98
Amendment, and prayed that the resolution be declared null and
the city, it officers, etc., be enjoined from enforcing it.
Held:
(1) That the bill set up a substantial federal question and
conferred jurisdiction on the district court. P.
259 U. S. 99.
Des Moines v. Des Moines City Ry. Co., 214 U.
S. 179, distinguished.
(2) That the jurisdiction, having attached, could not be
defeated by an answer denying the city's intention to enforce the
resolution except through an order of court. P.
259 U.S. 100.
Reversed.
Appeal from a decree of the district court dismissing for want
of jurisdiction a bill to restrain the defendant city from forcible
removal and destruction of an electric wire.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
In their original bill, appellants allege: that they hold
perpetual franchises over certain streets in Newport, Kentucky, for
operating street cars and distributing electric current; that, in
due course, it became necessary for them to obtain an additional
current from another company, and that to that end, in 1915, under
supervision and direction of the city authorities, they constructed
a high tension wire extending from Central Bridge to their power
house; that, on November 20, 1917, the board of commissioners of
Newport adopted a resolution which declared this current dangerous
to life and property, and directed removal of the wire not later
than December 1, 1917.
The bill further alleges that,
"unless restrained by this court, defendant will forcibly remove
and destroy said wire thereby interfering with the operation of the
street railway
Page 259 U. S. 99
system and the electric lighting and power system above
described, causing plaintiffs injury which cannot be compensated in
money and to their irreparable damage,"
and that
"it is not true that said wire is dangerous to either life or
property, and that said resolution is unreasonable, and in
violation of the rights of plaintiffs as hereinabove set forth;
that it is an impairment of the obligations of the aforesaid
contracts and each of them, in violation of Article I, § 10 of
the Constitution of the United States, and is a taking of
plaintiffs' property without due process of law in violation of the
Fourteenth Amendment to said Constitution of the United
States."
The relief prayed is that the resolution be declared null, and
that the city, its officers, agents, and employees be enjoined from
enforcing or attempting to enforce the same.
Relying upon
Des Moines v. Des Moines City Railway Co.,
214 U. S. 179, the
court below dismissed the bill for want of jurisdiction. The cause
comes here by direct appeal, and only the question of jurisdiction
is before us.
Where, as here, the jurisdiction of a district court has been
invoked on the sole ground that the cause involves a federal
question, and this is duly challenged, the issue must be determined
by considering the allegations of the bill. If they distinctly
disclose a real, substantial question of that nature, there is
jurisdiction; otherwise, there is none.
City Ry. Co. v.
Citizens' St. R. Co., 166 U. S. 557,
166 U. S. 562;
Pacific Elec. Ry. Co. v. Los Angeles, 194 U.
S. 112,
194 U. S. 118;
Columbus Ry., Power & Light Co. v. Columbus,
249 U. S. 399,
249 U. S.
406.
A mere formal statement that such question exists does not
suffice. The allegations must show that
"the suit is one which does really and substantially involve a
dispute or controversy as to a right which depends on the
construction or application of the Constitution or some law or
treaty of the United States."
American Sugar
Refining
Page 259 U. S. 100
Co. v. New Orleans, 181 U. S. 277,
181 U. S. 281;
Hull v. Burr, 234 U. S. 712,
234 U. S. 720;
Norton v. Whiteside, 239 U. S. 144,
239 U. S.
147.
Properly understood,
Des Moines v. Des Moines City Railway
Co., supra, is in harmony with these well established
principles. There, the bill disclosed that the only affirmative
action contemplated by the city was the institution of an orderly
proceeding in court. Such action could not in any proper sense
violate a right under the Constitution, laws, or treaties of the
United States. The bill did not, therefore, present a substantial
federal question, and for that reason jurisdiction did not
exist.
Here, it is affirmatively alleged that the city intends forcibly
to remove and destroy appellants' property, and thereby violate
their constitutional rights. This presented a substantial claim
under the Constitution.
In an amended answer, defendant denied intention to enforce the
resolution except through an order of court. But, the necessary
facts having been alleged by the bill, jurisdiction could not be
thus defeated. The denial went to the merits of the claim.
The
Fair v. Kohler Die Co., 228 U. S. 22,
228 U. S. 25;
St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R.
Co., 68 F. 2, 10.
The judgment below must be reversed and the cause remanded for
further proceedings in accordance with this opinion.
MR. JUSTICE PITNEY concurs in the result.
MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE dissent.
