Clara Wheeler v. City and County of Denver

• Decision Date: 10 June 1913
• Docket Number: No. 473,473
• Citation: 229 U.S. 342,33 S.Ct. 842,57 L.Ed. 1219
• Parties: CLARA A. WHEELER and Frank S. Lusk, Appts., v. CITY AND COUNTY OF DENVER, Albion K. Vickery, Auditor; Lewis C. Greenlee, Treasurer, et al
• Court: U.S. Supreme Court

229 U.S. 342

33 S.Ct. 842

57 L.Ed. 1219

CLARA A. WHEELER and Frank S. Lusk, Appts.,

v CITY AND COUNTY OF DENVER, Albion K. Vickery, Auditor; Lewis C. Greenlee, Treasurer, et al.

No. 473.

Argued January 7, 1913.

Decided June 10, 1913.

The case is here on a question of jurisdiction.

The appellants filed a bill in equity in the circuit court for the eighth circuit, district of Colorado, against the city and county of Denver and the other appellees, who constitute the public utilities commission, to restrain them from paying out any moneys authorized by the provisions of an amendment to the charter of the city, and likewise to restrain them and each of them from issuing or attempting to issue $8,000,000 of bonds authorized at an election directed by the amendment to the charter of the city. The bill also prayed an accounting of money already expended by reason of their supposed election and authority as members of the public utilities commission, and that they be required to reimburse the city therefor, that § 264A of the charter be declared unconstitutional and void, and all further action thereunder be forever restrained and enjoined, and all acts heretofore done and steps taken thereunder be declared wholly illegal, improper, and without authority of law.

The bill alleges the requisite citizenship of the parties and the jurisdictional amount. It further alleges the following:

Appellants Wheeler and Lusk were respectively owners of real estate in the city and county of Denver of the assessed valuation of $35,000 and $42,000, respectively. For the year preceding the filing of the suit the assessed valuation of all property within the city and county was $135,467,050. At a general city election held in May, 1910, it was claimed by the appellees that an amendment to the charter of the city was adopted, which amendment provided for the acquisition, by purchase or otherwise, by the city, of a waterworks system, provided a public utilities commission to have charge and control of such works, named the persons who were to constitute the commission, their terms of office, salaries, and duties, and authorized them to issue bonds to the extent of $8,000,000 for the construction or purchase of such waterworks system and other duties.

The bill attacks the amendment on various grounds, among which are—that it was not properly submitted to the voters of the city; that the amendment was void because it submitted to the electors divers questions in one, which, under the submission, could only be voted for as a whole; that the amendment established the office of utilities commission, and by the same act filled such office, and that the amendment violated the state and Federal Constitutions; that another suit was pending in the Federal court in which the circuit court of appeals for the eighth circuit had sustained a temporary injunction theretofore granted by the circuit court for the district of Colorado, and the court's order declared that the amendment violated the contractual rights of the Denver Union Water Company under a contract then existing between that company and the city, and that nevertheless the city was proceeding under the amendment, to spend the money of the taxpayers of the city. Appellants filed the bill as taxpayers of the city in behalf of themselves and all other taxpayers.

Appellees made a motion to dismiss the bill on the ground that the court had no jurisdiction of the cause, in that it did not involve a dispute or controversy properly within the jurisdiction of the court, and that the parties had been improperly and collusively made or joined for the purpose of attempting to create a case cognizable under the laws of the United States.

An affidavit of Edwin Van Cise, one of the public utilities commission, was submitted with the motion. It averred that appellants (complainants in the bill) were respectively residents of Montana and Nevada; that appellant Lusk was formerly a resident of California and a personal friend of Mr. F. G. Moffat, of the city of Denver, a gentleman who was interested as a stockholder or bondholder, or both, or in some other capacity, in the Denver Union Water Company, and that Wheeler is a client of Edwin H. Park, solicitor for her and Lusk in this cause. On the 19th or 20th of June, 1911, Moffat, by the authority or consent of the water company, sent Lusk a telegram as follows:

'Would you be willing, as a nonresident taxpayer, to bring suit in Federal court to stop illegal expenditure of public moneys by utilities commission if protected by water company on expenses and all liabilities? If so wire me authority in your name to engage attorney and bring suit.'

Lusk replied as follows:

'Please engage necessary counsel and take proper steps to protect against illegal expenditures by utility commission. Am owner of four lots corner Ninth and Sherman, and I object to the proposed expenditures.'

It is averred on information and belief, that upon the latter telegram Moffat, or someone acting for the water company, retained Park in the name of Lusk, but really for the water company, to prepare and file the bill in this cause. It being found upon consultation, that the amount in controversy with Lusk as sole complainant was insufficient to give the court jurisdiction, it became necessary to procure another nonresident owning property in the city. Park was thereupon authorized to confer with his client Wheeler, with a view to securing her co-operation, she to be guaranteed against all expenses. Thereupon the following telegram was sent by Park to her:

'Will you permit use of your name in suit here to restrain misuse of taxes by city officials? If so, wire me to bring such suit. I advise the bringing of the suit and will protect you against expenses.' To the telegram the reply was sent, 'Yes, use your judgment in the matter.' The next day after the receipt of this telegram Park wrote Wheeler as follows:

'My dear Mrs. Wheeler: On yesterday I wired you for permission to bring a suit in your name against some of the city officials for misuse of taxes, and received your reply authorizing me to go ahead. I brought the suit and filed it on yesterday. The suit is to restrain the water commissioners of Denver from further expenditures looking toward the purchase of a water plant by the city of Denver. The city is already enjoined in another proceeding in which the water company was a party. Since that time the water commission has spent $31,000 to hold an election, and about $25,000 for other purposes; and are seeking to compel the city to pay out on warrants about $20,000 more.

'The courts have already held that the amendment to the charter establishing a water commission for the purpose of purchasing or building a water plant is unconstitutional and void, and it is our purpose to stop the spending of any more of the people's money in that direction.

'I desire to bring suit in the Federal court, and therefore had to get permission of a nonresident taxpayer to bring suit, which accounts for my telegraphing you for permission.

'You will not be charged with any expense or costs in the matter, either for court costs or attorneys' fees; and I will see that you are absolutely protected in every way from any liability whatever. Thanking you for permission to bring the suit in your name, I remain.'

The affidavit expressed the conclusion that the parties to the bill were improperly and collusively joined for the purpose of creating a cause cognizable in the United States circuit court, in the interest and at the cost of the Denver Union Water Company, neither of the parties having knowledge of the joinder with the other, or of any connection of the other with the cause, and having no interest which was so imperiled as to cause them to proceed on their own motion and at their own expense.

The affidavits of Park and Moffat were filed in opposition to the motion to dismiss. Park's affidavit states the following: He is solicitor for complainants (appellants here). On June 11, 1911, the question of bringing a taxpayers' suit against the public utilities commission was brought to his attention by Mr. Gerald Hughes, and h...