OCR Text |
Show 634 INTERSTATE ADJUDICATIONS cities, are corporate creatures of the state may represent interests just as substantial. "Our original jurisdiction should not be thus expanded to the dimen- sions of ordinary class actions. An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citi- zens and creatures of the state, which interest is not properly repre- sented by the State. See Kentucky v. Indiana, supra. Philadelphia has not met that burden and, therefore, even if her intervention would not amount to a suit against a state within the proscription of the Eleventh Amendment (and we do not intend to give any basis for implying that it does), leave to intervene must be denied. "Pennsylvania intervened in 1930, pro interesse suo, to protect the rights and interests of Philadelphia and Eastern Pennsylvania in the Delaware River. The Commonwealth opposed New Jersey's position based on common-law riparian rights, since that proposition threat- ened the right of Philadelphia and Eastern Pennsylvania to continue their use and development of the Delaware River and its Pennsylvania tributaries. Pennsylvania's position was based upon the doctrine of fair and equitable apportionment, and New York's proposed diversion had to be resisted to the extent it might amount to a diversion of more than a fair and equitable share. This Court recognized the propriety of Pennsylvania's peculiar position, based on the interests of its citizens, and permitted intervention over vigorous opposition that the inter- venor must be aligned either with plaintiff or defendant. "Pennsylvania's position remains vigorous and unchanged in the face of the petition for additional diversion. She is opposed to any such additional diversion not justified under the doctrine of equitable apportionment. Counsel for the City of Philadelphia have been unable to point out a single concrete consideration in respect to which the Commonwealth's position does not represent Philadelphia's interests. We do not see how Philadelphia's Home Rule Charter changes the situation. Though Philadelphia is now responsible for her own water system under the Charter, that responsibility is invariably served by the Commonwealth's position. "The presence of New York City in this litigation is urged as a reason for permitting Philadelphia to intervene. But the argument misconstrues New York City's position in the case. New York City was not admitted into this litigation as a matter of discretion at her request. She was forcibly joined as a defendant to the original action since she was the authorized agent for the execution of the sovereign policy which threatened injury to the citizens of New Jersey. Because of this position as a defendant, subordinate to the parent state as the primary defendant, New York City's position in the case raises no problems under the Eleventh Amendment. Wisconsin v. Illinois and Sanitary District of Chicago, 278 U.S. 367 (1929), and 281 U.S. 179 (1930); cf. Georgia y. Tennessee Copper Co., 206 U.S. 230 (1907). New York City's position is not changed by virtue of the fact that she is presently the moving party, so long as the motion for modifica- tion of the 1931 decree comes within the scope of the authorization of paragraph 6 of that decree." Mr. Justice Jackson and Mr. Justice Black dissented. |