Omaha Electric Light Power Company v. City of Omaha 27 28, 1913
| Decision Date | 17 March 1913 |
| Docket Number | No. 162,162 |
| Citation | 33 S.Ct. 974,57 L.Ed. 1419,230 U.S. 123 |
| Parties | OMAHA ELECTRIC LIGHT & POWER COMPANY, Appt., v. CITY OF OMAHA and Waldemar Michaelson. Argued February 27 and 28, 1913. Ordered for reargument |
| Court | U.S. Supreme Court |
Messrs. William D. McHugh, Edgar H. Scott, and Lodowick F. Crofoot for appellant.
Messrs. Benjamin S. Baker, William C. Lambert, John A. Rine, L. J. TePoel, Frank Crawford, and I. J. Dunn for appellees.
The facts out of which this suit arose are fully set forth in Old Colony Trust Co. v. Omaha, 230 U. S. 100, 57 L. ed. ——, 33 Sup. Ct. Rep. 967, and need not be repeated here. The electric company brought the suit in the circuit court, against the city and its electrician, to enjoin the threatened disconnection, pursuant to the resolution of 1908, of the company's wires used in supplying its patrons with electric current for power and heating purposes. There was a decree for the defendants (172 Fed. 494), which was affirmed by the circuit court of appeals (102 C. C. A. 601, 179, Fed. 455), and a further appeal brought the case here.
Our jurisdiction is challenged, by a motion to dismiss, on the ground that the decision of the circuit court of appeals is final. The motion is well taken if the jurisdiction of the circuit court was invoked solely on the ground of diverse citizenship. Act of March 3, 1891 (26 Stat. at L. 826, chap. 517 § 6, U. S. Comp. Stat. 1901, p. 488); Judicial Code, § 128 []. That it was invoked on that ground is conceded, so it is necessary to inquire whether, as is asserted in opposition to the motion, it was also invoked upon the ground that the suit was one arising under the Constitution of the United States. This must be determined from the plaintiff's statement of its own cause of action as set forth in the bill, regardless of questions that may have been subsequently brought into the suit. Shulthis v. McDougal, 225 U. S. 561, 569, 56 L. ed. 1205, 1210, 32 Sup. Ct. Rep. 704; Denver v. New York Trust Co. 229 U. S. 123, ante, 657, 33 Sup. Ct. Rep. 657.
Briefly described, the bill set forth the adoption by the city council of the franchise ordinance of 1884, its acceptance by the Thompson Company, the construction and installation of the electric plant, the transfer of the plant and franchise to the electric company in 1903, the business done by the two companies in supplying current for power and heating, as well as for lighting, purposes, the enlargement and improvement of the plant from time to time to meet the increasing demand for current for those purposes, the city's acquiescence in and encouragement and sanction of all this with knowledge that it was done under a claim of right under the franchise ordinance, the exaction by the city of 3 per cent of the gross earnings, including those from current supplied for power and heat, the adoption of the resolution of 1908, and the threatened disconnection thereunder of all wires used for transmitting current for power and heating purposes. The bill further charged that in what was done prior to the resolution the city and the two companies had treated the franchise as including the right to use the streets in transmitting current for power and heat; that upon the faith of this practical construction the plaintiff had expended large sums of money in developing and...
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State ex Inf. McKittrick v. Mo. Utilities Co., 34073.
...(1909), 172 Fed. 494, affirmed, without discussion of this question (1910), 102 C.C.A. 601, 179 Fed. 455, appeal dismissed (1913), 230 U.S. 123, 57 L. Ed. 1419, hold the contrary. We are at a loss to see how the mere imposition of a general property or income tax or of a sales tax could be ......
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State ex inf. McKittrick ex rel. City of California v. Missouri Utilities Co.
...Omaha (1909), 172 F. 494, affirmed, without discussion of this question (1910), 102 C. C. A. 601, 179 F. 455, appeal dismissed (1913), 230 U.S. 123, 57 L.Ed. 1419, hold the contrary. are at a loss to see how the mere imposition of a general property or income tax or of a sales tax could be ......
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City and County of Denver v. Denver Tramway Corporation
...without determination." The case referred to in the excerpt was not determined on the merits by the Supreme Court (see 230 U. S. 123, 33 S. Ct. 974, 57 L. Ed. 1419), but its companion case, Old Colony Trust Co. v. City of Omaha, which involved the same ordinance, was decided on the merits b......
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Omaha Elec. Light & Power Co. v. City of Omaha
...Company Case was dismissed for want of jurisdiction, because the complaint failed to raise clearly any federal question. 230 U.S. 123, 33 Sup.Ct. 974, 57 L.Ed. 1419. In the Colony Trust Co. Case the court held that the ordinance granted a perpetual franchise, which included the right to dis......