O'CONNELL v. Pacific Gas & Electric Co.

• Decision Date: 02 May 1927
• Docket Number: No. 4965.,4965.
• Citation: 19 F.2d 460
• Parties: O'CONNELL v. PACIFIC GAS & ELECTRIC CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

19 F.2d 460 (1927)

O'CONNELL v. PACIFIC GAS & ELECTRIC CO. et al.

No. 4965.

Circuit Court of Appeals, Ninth Circuit.

May 2, 1927.

Daniel O'Connell, of San Francisco, Cal., in pro. per.

William B. Bosley, of San Francisco, Cal., for appellee Pacific Gas & Electric Co.

John J. O'Toole, City Atty., and Robert M. Searls, both of San Francisco, Cal., for appellee city and county of San Francisco.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The appellant, in view of the fact that his individual claim against the gas and electric company in any separate proceeding is barred by the statute of limitations, contends that the intervention here sought is his only remedy to recover the money taken from him by the gas and electric company, and that he has an absolute right to intervene. The ground of that right, as alleged in his petition, is in substance that the attorneys for the city and county of San Francisco have unwarrantably delayed the prosecution of the cases, and are now proposing to sacrifice the rights of the consumers of gas by entering into a compromise with the gas company, whereby the consumers will be deprived of a substantial portion of the rebate which is due them; whereas, if the litigation is continued to a final determination, they will recover the whole thereof, and that the acceptance of the compromise proposition would be a gross breach of trust on the part of the defendants in said suits.

If the appellant is entitled to intervene and be heard upon the question of the relative advantage of continuing the litigation to a final determination, rather than accepting the proposed compromise, the question is one upon which more than 100,000 consumers of gas are likewise entitled to be heard, none of whom has accepted the appellant's championship or indicated a purpose to join in intervention. It is to be remembered that there is here no impounded fund in the possession of a court, to be disbursed at the end of pending litigation. The matters yet to be determined must involve a hearing before a master, a decision by the District Court, probably followed by an appeal, as before, to the Supreme Court, with consequent delay and expense. There is no allegation of fraud or collusion between the parties to the suit, or of bad faith on the part of the city and county, and no question is made of the power of the municipality to compromise the litigation. That power, it is to be observed, is implied in the power to sue and be sued. 28 Cyc. 1756; Kelly v. Town of Milan (C. C.) 21 F. 842, 864; Oakman v. City of Eveleth, 163 Minn. 100, 203 N. W. 514; Agnew v. Brall, 124 Ill. 312, 16 N. E. 230; Town of Petersburg v. Mappin, 14 Ill. 193, 195, 56 Am. Dec. 501; Prout v. Pittsfield Fire District, 154 Mass. 450, 28 N. E. 679.

New equity rule 37 provides: "Any one claiming an interest in the litigation may at any time be permitted to assert his right of intervention, but the...