New Jersey brought an original suit in this Court against the
State of New York and the City of New York to enjoin a proposed
diversion of Delaware River water by the City of New York from
tributaries within the State of New York. Pennsylvania intervened
pro interesse suo and participated actively in the
litigation. In 1931, this Court entered a decree,
283 U.
S. 805, enjoining the State of New York and the City of
New York from diverting more than a specified amount of water per
day and providing that any party might apply for a modification of
the decree at any time. In 1952, the City of New York, with the
approval and support of the State of New York, moved to modify the
decree so as to provide for the diversion of additional quantities
of water. New Jersey and Pennsylvania filed answers opposing such
modification. Subsequently, the City of Philadelphia moved for
leave to intervene, asserting its interest in the use of Delaware
River water and pointing to the recent grant of a Home Rule Charter
as justification for intervention at this point.
Held: the motion for leave to intervene is denied. Pp.
345 U. S.
370-375.
(a) Since Pennsylvania is a party to this suit, which involves a
matter of its sovereign interest, it must be deemed to represent
all of its citizens and creatures.
Kentucky v. Indiana,
281 U. S. 163. Pp.
345 U. S.
372-373.
(b) An intervenor whose State is already a party to an original
action has the burden of showing some compelling interest in its
own right, apart from its interest in a class with all other
citizens and creatures of the State, which interest is not properly
represented by its State, and Philadelphia has not met that burden.
Pp.
345 U.S. 373-374.
(c) That Philadelphia now has a Home Rule Charter and is now
responsible for her own water system does not require a different
result, since that responsibility is invariably served by the
Commonwealth's position. P.
345 U. S.
374.
(d) The presence in this litigation of New York City, which was
joined as a defendant to the original action, is not a sufficient
justification for permitting the City of Philadelphia to intervene.
Pp.
345 U. S.
374-375.
Page 345 U. S. 370
PER CURIAM.
The City of Philadelphia has moved this Court for leave to
intervene in this original action concerning distribution of
Delaware River water. Argument was heard on the motion on March 9,
1953, with all interested parties appearing.
The suit, addressed to this Court's original jurisdiction, was
brought by the New Jersey, in 1929, against the New York and the
City of New York, praying for injunctive relief against a proposed
diversion of Delaware River water from tributaries within the New
York. New Jersey joined the City of New York as a defendant,
because the City, acting under State authority, was planning the
actual diversion of the water
Page 345 U. S. 371
for its use. The Pennsylvania immediately petitioned for leave
to intervene
pro interesse suo. Leave to intervene was
granted upon condition that the Commonwealth file a statement of
her interest in the cause and of the relief, if any, which she
sought. 280 U.S. 528. Pennsylvania filed her Statement of Interest
and Relief on January 10, 1930, and thereafter became an active
party in the proceedings before the Special Master. In 1931, this
Court confirmed the Special Master's Report,
283 U. S. 283 U.S.
336, and entered its decree in conformity therewith,
283 U.
S. 805.
The 1931 decree enjoined the New York and the City of New York
from diverting from the Delaware River or its tributaries more than
440 million gallons daily, subject to a prescribed formula for the
release of storage water during periods of low flow. The decree
further provided:
"6. Any of the parties hereto, complainant, defendants, or
intervenor, may apply at the foot of this decree for other or
further action or relief, and this court retains jurisdiction of
the suit for the purpose of any order or direction or modification
of this decree, or any supplemental decree that it may deem at any
time to be proper in relation to the subject matter in
controversy."
Id. 283 U.S. at
807.
On April 1, 1952, the City of New York, with the approval and
support of the State of New York, moved under paragraph 6 of the
1931 decree for leave to file its petition to modify the decree by
providing for diversion of additional quantities of water and for
changes in the prescribed formula for releasing water during low
flow. The motion was granted. 343 U.S. 974. New Jersey and
Pennsylvania filed answers opposing the proposed modifications, and
the whole matter was referred to a Special Master.
Ibid.
Page 345 U. S. 372
On December 13, 1952, the City of Philadelphia filed this motion
for leave to intervene. The petition asserts Philadelphia's
unquestioned interest in the use of Delaware River water, and
points to the recent grant of her Home Rule Charter as
justification for intervention at this point. All of the present
parties to the litigation have formally opposed the motion to
intervene on grounds (1) that the intervention would permit a suit
against a State by a citizen of another State in contravention of
the Eleventh Amendment; (2) that the Pennsylvania has the exclusive
right to represent the interest of Philadelphia as
parens
patriae; and (3) that intervention should be denied, in any
event, as a matter of sound discretion. Philadelphia contends that
the matter is entirely within the sound discretion of this Court,
which should be exercised as prayed to assure that every worthwhile
interest is represented in the ultimate decree.
The view we take of the matter makes it unnecessary to decide
whether Philadelphia's intervention in the pending litigation would
amount to a " . . . suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State . . .
" in violation of the Eleventh Amendment. For the same reasons, we
are not concerned with so much of the "
parens patriae"
argument as may be only a restatement of the proposition that
original jurisdiction against a State can only be invoked by
another State acting in its sovereign capacity on behalf of its
citizens.
Cf. New Hampshire v. Louisiana, 108 U. S.
76 (1883);
North Dakota v. Minnesota,
263 U. S. 365
(1923). The "
parens patriae" doctrine, however, has
aspects which go beyond mere restatement of the Eleventh Amendment;
it is a recognition of the principle that the State, when a party
to a suit involving a matter of sovereign interest, "must be deemed
to represent all its citizens."
Kentucky
v. Indiana,
Page 345 U. S. 373
281 U. S. 163,
281 U. S.
173-174 (1930). The principle is a necessary recognition
of sovereign dignity, as well as a working rule for good judicial
administration. Otherwise, a State might be judicially impeached on
matters of policy by its own subjects, and there would be no
practical limitation on the number of citizens, as such, who would
be entitled to be made parties.
The case before us demonstrates the wisdom of the rule. The City
of Philadelphia represents only a part of the citizens of
Pennsylvania who reside in the watershed area of the Delaware River
and its tributaries and depend upon those waters.
* If we undertook
to evaluate all the separate interests within Pennsylvania, we
could, in effect, be drawn into an intramural dispute over the
distribution of water within the Commonwealth. Furthermore, we are
told by New Jersey that there are cities along the Delaware River
in that State which, like Philadelphia, are responsible for their
own water systems, and which will insist upon a right to intervene
if Philadelphia is admitted. Nor is there any assurance that the
list of intervenors could be closed with political subdivisions of
the States. Large industrial plants which, like cities, are
corporate creatures of the State may represent interests just as
substantial.
Our original jurisdiction should not be thus expanded to the
dimensions 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 citizens and creatures of the State, which interest is
not properly represented by the State.
See Kentucky v. Indiana,
supra. Philadelphia has not met that burden and
Page 345 U. S. 374
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 threatened 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 intervenor
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
Page 345 U. S. 375
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, 278 U. S. 367
(1929), and
281 U. S. 179
(1930),
cf. Georgia v. 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 modification of the 1931 decree comes within
the scope of the authorization of paragraph 6 of that decree.
The motion for leave to intervene and file an answer is,
therefore,
Denied.
* Census figures for 1950 show that there were 4,061,420
Pennsylvania citizens within the watershed, of which 2,071,605, or
about half, are in Philadelphia.
MR. JUSTICE JACKSON, whom MR. JUSTICE Black joins,
dissenting.
We desire the record to show why we would allow Philadelphia to
intervene in this case.
The city, of course, is not an indispensable party, and it is
generally bad policy to encumber any case with unnecessary
intervenors. We have no doubt whatever that counsel for the
Commonwealth will faithfully and able represent the interests of
all of its inhabitants, including those of Philadelphia.
Nonetheless, we would allow the intervention because of
circumstances peculiar to this case.
We do not write today upon a clean slate. New York City, as well
as New York State, is a party to this action. It is true that the
city was made a defendant in the original
Page 345 U. S. 376
case. But that case was long ago decided. New York City is the
moving party now, in reopening the decree. The interests of
municipality and State are no more separate in the case of New York
than of Philadelphia. Both cities have home-ule powers and vital
interests in this litigation. New York City is the real party in
interest in the current application for a modification of an
existing decree, and it is in a position to present its own claims.
We would allow Philadelphia's motion to present any proper evidence
that it deems protective of its interest. This would not be merely
a favor to that city. It would also protect the position of this
Court if the master should report in favor of New York, and
Philadelphia, with the wisdom that comes from hindsight, should ask
to oppose confirmation upon the ground that its interests had not
had full consideration.
It is objected that, if Philadelphia is admitted, other
municipalities may apply. That may be so. We are not believers in
town meeting lawsuits. But certainly few others could show
comparable home rule power and magnitude of interest, and we must
not forget that this is no ordinary lawsuit. It may have grave
consequences upon one or the other or both municipalities. Since
the Court is hearing one of them, we would bear with some
inconvenience, rather than have the other aggrieved from the
beginning by being shut out.