Owensboro Waterworks Company v. Owensboro/Opinion of the Court
The bill presents the case of the diversion, or the intended diversion, by a municipal corporation, of certain funds which, under legislative sanction, it had collected from taxpayers for a specific public object, which funds were not applied to the object for which they were raised, and which failure of duty on the part of the corporation so to apply them may ultimately cause increased taxation if the full amount originally intended to be applied to the particular object named by the legislature is to be collected.

We share with the court below the difficulty in understanding how such a case can be regarded as one arising under the Constitution of the United States. It certainly must be one of that character in order to sustain the jurisdiction of the circuit court,-the parties all being citizens of Kentucky.

In support of their contention that the present suit arises under the Constitution of the United States, and is within the original cognizance of the circuit court, without regard to the citizenship of the parties, the learned counsel for the appellant cites certain cases in this court which hold that the prohibitions of the 14th Amendment 'refer to all the instrumentalities of the state,-to its legislative, executive, and judicial authorities,' and consequently, 'whoever, by virtue of public position under a state government, deprives another of any right protected under that amendment against deprivation by the state, violates the constitutional inhibition; and, as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state.' Ex parte Virginia, 100 U.S. 339, 346, 347, 25 L. ed. 676, 679, 680; Neal v. Delaware, 103 U.S. 370, 397, 26 L. ed. 567, 574; Yick Wo v. Hopkins, 118 U.S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Gibson v. Mississippi, 162 U.S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 235, 41 L. ed. 979, 984, 17 Sup. Ct. Rep. 581.

These were all cases in which the right sought to be protected was held to have been granted or secured by the Constitution of the United States, but yet was violated by some agency or instrumentality proceeding under the sanction or authority of the state. But no right involved in the present case has its origin in, or is secured by, the Constitution of the United States. It is not contended that the legislative enactments, by the authority of which the city intends to establish and maintain a system of waterworks, are inconsistent either with the Constitution of Kentucky or the Constitution of the United States. The plaintiff, however complains that the defendant city has not properly discharged its duties under the laws of the state. For the purposes of the present discussion, let this be taken as true; still, maladministration of its local affairs by a city's constituted authorities cannot rightfully concern the national, government, unless it involves the infringement of some Federal right. If the city authorities have received funds from taxation which ought strictly to have been applied to take up or cancel the bonds of the city, but have been used for other municipal purposes, and if, by reason of such misapplication of those funds, taxation may ultimately come upon the people for an amount beyond what the legislature originally intended,-if nothing more can be said,-the remedy must be found in the courts and tribunals of the state, and not in the Federal courts of original jurisdiction, where the controversy is wholly, as it is here, between citizens of the same state. When a Federal court acquires jurisdiction of a controversy by reason of the diverse citizenship of the parties, then it may dispose of all the issues in the case, determining the rights of parties under the same rules or principles that control when the case is in the state court. But, as between citizens of the same state, the Federal court may not interfere to compel municipal corporations or other like state instrumentalities to keep within the limits of the power conferred upon them by the state, unless such interference is necessary for the protection of a Federal right. There has been no actual invasion here of any right secured by the Constitution of the United States; nothing more, taking the allegations of the bill to be true, than a failure of a municipal corporation to properly discharge the duties which, under the laws of the state, it owes to its people and taxpayers. And there is here no deprivation of property without due process of law within the meaning of the 14th Amendment, even if it be apprehended that the defendant city may, at some future time, impose a tax in violation of its duty under the laws of the state.

The utmost that can be said of the present case, as disclosed by the bill, is that the municipal authorities of Owensboro have done some things outside or in excess of any power the city possessed. But this does not of itself show that they acted without the due process of law enjoined by the 14th AMENDMENT; FOR, IF WHAT IS COMPLAINED Of Had been done directly by the state or by its express authority, or if the legislature could legally ratify that which the city has done, as it undoubtedly might do, no one would contend that there had been a violation of the due process clause of the amendment. It cannot be that the acts of a municipal corporation are wanting in the due process of law ordained by the 14th Amendment, if such acts, when done or ratified by the state, would not be inconsistent with that amendment. Many acts done by an agency of a state may be illegal in their character when tested by the laws of the state, and may, on that ground, be assailed, and yet they cannot, for that reason alone, be impeached as being inconsistent with the due process of law enjoined upon the states. The 14th Amendment was not intended to bring within Federal control everything done by the state or by its instrumentalities that is simply illegal under the state laws, but only such acts by the states or their instrumentalities as are violative of rights secured by the Constitution of the United States. A different view would give to the 14th Amendment a far wider scope than was contemplated at the time of its adoption, or than would be consonant with the authority of the several states to regulate and administer the rights of their peoples, in conformity with their own laws, subject always, but only, to the supreme law of the land.

We are of opinion that this suit is not one arising under the Constitution of the United States, and, therefore, the parties being all citizens of Kentucky, it is not one of which the circuit court could take original cognizance.

Affirmed. 

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