State v. Northwestern Light & Power Co.

• Decision Date: 10 February 1937
• Docket Number: No. 1074.,1074.
• Citation: 18 F. Supp. 303
• Court: U.S. District Court — Northern District of Iowa
• Parties: STATE of IOWA ex rel. WELTY, County Attorney, v. NORTHWESTERN LIGHT & POWER CO.

18 F. Supp. 303

STATE of IOWA ex rel. WELTY, County Attorney, v. NORTHWESTERN LIGHT & POWER CO.

No. 1074.

District Court, N. D. Iowa, W. D.

February 10, 1937.

Geo. A. Rice, of Mapleton, Iowa, and K. B. Welty, of Spirit Lake, Iowa, for plaintiff.

H. E. Narey, of Spirit Lake, Iowa, and C. J. Lynch, of Cedar Rapids, Iowa, for defendant.

SCOTT, District Judge.

An action in the name of the State of Iowa by relation of K. B. Welty, County Attorney of Dickinson County, Iowa, against Northwestern Light & Power Company, a corporation. The action is one in the nature of quo warranto to compel the defendant to remove from the streets and alleys and other public places in the Town of Milford, Iowa, its poles, wires, and other electrical equipment established and maintained by the defendant. The ground upon which plaintiff prays relief is that defendant's preexisting franchise has expired, and at an election duly called for the purpose, the electors of the town refused to renew the franchise.

The action was begun in the district court of Iowa in and for Dickinson county, and removed by the defendant on the alleged ground of diversity of citizenship. No motion to remand was filed, and the jurisdiction of this court was not questioned by counsel for either party. A jury was waived in proper form, and the respective parties stipulated substantially all of the pertinent facts and amplified the same only by the very brief testimony of a couple of witnesses. And upon such record the cause was submitted.

Unfortunately for further proceedings in this court, the limited jurisdiction of federal courts imposes upon the court, even in the absence of challenge by a party, the duty of determining its own jurisdiction. It is, of course, apparent that a state is not a citizen of a state. Counsel for plaintiff, however, contends that the town of Milford is the real party in interest, and it being a municipal corporation duly organized under the laws of Iowa, is a citizen of this state. This argument, I think, is unsound although there is a great paucity of direct authority on the question. One case cited in the defendant's brief seems to be directly in point. I refer to State of Nevada ex rel. City of Reno v. Reno Traction Company, 41 Nev. 405, 171 P. 375, L.R.A.1918D, 847. In that case Chief Justice McCarran delivered a very well-considered opinion in which the court declined to honor a petition for removal and to proceed no further, holding that the state was the real party in interest and entitled to control the litigation. An annotation following the report of the decision in the L.R.A. publication recites that: "No case other than State ex rel. Reno v. Reno Traction Co., 41 Nev. 405, 171 P. 375, L.R.A.1918D, 847, has been found passing upon the question of the removal to the Federal court of quo warranto proceedings against a foreign corporation." I have been able to find no other decision passing directly on the question. The question of the interest of the state in such an action, however, was raised in State v. Railway Co., 135 Iowa, 694, 109 N.W. 867; Judge Weaver of the Iowa Supreme Court writing an exhaustive and very able opinion in the case. The reasoning of that opinion, I think, makes it quite clear that under the Iowa statutes (Code Iowa 1935, § 12417 et seq.) the same conclusion must be arrived at as did the Nevada court in the case cited. The cases of Ames v. Kansas, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482, and State of Illinois v. Illinois Central Railroad Company (C.C.) 33 F. 721, are cited by the plaintiff as suggesting a different...