City of Forsyth v. Mountain States Power Co., 9990.
| Decision Date | 25 May 1942 |
| Docket Number | No. 9990.,9990. |
| Citation | 127 F.2d 583 |
| Parties | CITY OF FORSYTH et al. v. MOUNTAIN STATES POWER CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. V. Beeman, of Forsyth, Mont., Kyle & Kyle, of St. Paul, Minn. (Poppenhusen, Johnston, Thompson & Raymond, of Chicago, Ill., of counsel), for appellants.
Toomey, McFarland & Chapman, E. G. Toomey, and Gunn, Rasch & Gunn, all of Helena, Mont., for appellee.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
From a judgment on the pleadings enjoining appellant City of Forsyth from in any way interfering with appellee's electric plant in such city, enjoining construction of a plant by appellant Fairbanks, Morse & Company, hereafter called the company, declaring that appellee had a valid franchise for the maintenance and operation of its plant in the city, and declaring a contract between the city and the company to be invalid, this appeal was taken.
Appellee owns an electric plant in the city which serves the city and inhabitants thereof. The city entered into a contract with the company for construction of a competing system by the company to be paid for from earnings, construction to begin, however, only upon ouster of appellee from operation in the city. Appellee sought to forestall ouster, and construction of the proposed plant by this action.
Appellee alleged in its complaint that it was a Delaware corporation, that the city was a Montana municipal corporation, that the company was an Illinois corporation, and that the matter in controversy exceeded, exclusive of interest and costs, the sum of $3,000. It further alleged that the city published a notice to bidders stating that the city at a specified time would receive, open and consider bids for the construction of a light, heat and power plant described in specifications on file with the city clerk; that the specifications provided that the bid accepted was subject to the approval of the taxpayers at an election and that the city would promptly institute legal proceedings to have it declared by a judgment of a court of competent jurisdiction that appellee had no right to use or occupy the streets, alleys or public grounds of the city and that appellee was required to remove all its equipment therefrom.
It was also alleged that the city accepted the bid of the company, and that at an election thereafter held, the proposed contract between the city and the company was approved by a majority of the voters; that the city had no power or authority to enter into the proposed contract, and if it did enter into such contract, it "will become a competitor of appellee and take from appellee many of its customers and patrons, to its great and irreparable damage and injury". In addition it was alleged that appellee had a franchise conferred by a Montana statute, that the proposed contract was void for reasons other than a lack of power in the city to enter into it, and that appellee "is and has been for several years a large taxpayer upon real and personal property" in the city.
Appellants by answer denied: that the matter in controversy exceeded, exclusive of interest and costs, the sum of $3,000; that the city had no power or authority to enter into the proposed contract; that if it entered into...
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