Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1909-04-28
SEEKS TO HAVE ACTION RE.
MOVED BACK TO DISTRICT
COURT FOR HEARING.
ALLEGES FEDERAL COURT
HAS NO JURISDICTION
Demurrer Contains Nine Different Al
legations Why the Federal Court
Has No Right to Hear tho Case
With tho Demurrer tho City Also
Files Its Answer to tho Petition.

A demurrer to the petition in the suit
court at Des Moines against the city,
to prevent it from enforcing the gas
ordinance of $1.10 per 1000 cubic feet,
has been filed on behalf of the city by
Solicitor +. E. Northup. To have the
case remanded to the local district
court for trial is the initial counter at
tack made by the city in resistance to
the action brought by the Marshalltown
Light, Power and Railway Company.
With this demurrer there has also
been filed the answer of the city to the
allegations of the plaintiff companys
petition.
Claims Lack of Jurisdiction.
reasons set forth in the demurrer why,
1t is alleged, that the federal court has
no Jurisdiction in the case:
Because the amount and value in
controversy, exclusive of interest and
costs, does not exceed $4,000.
That all the parties involved in the
suit are within the jurisdiction of the
district court of Marshall county.
That the matter in controversy does
not arise under, or call in question, the
constitution Of the laws of the United
States.
That the grant referred to and under
which complainant company claims the
exercise of a. franchise was one with
limitations, and that certain reserva-
tions were implied by law and regula-
tions as to rates and charges were
properly made by defendants, and that
no restrictions were placed upon the
defendant city to prevent changes and
notifications in rates.
That the complainant can not plead
the acts of a former council as an
estoppal against the existing council,
that the oral agreement referred to is
without consideration and is void in
solar as it attempts to limit and re-
strict the rights of the city to alter or
change the rates, and which were not a
reduction below the rates charged for
like service in other Iowa cities Of
about the same population.
That the question of the alleged wio-
lation of the constitution of Iowa, as
CldiiIleu, ~ Only COSillZdDle ny Lllo uuly
constituted courts of the state.
That this court has no jurisdiction to
pass upon or determine the validity of
a municipal ordinance.
That the compliments claim that
the ordinance was not duly and legally
passed, and thus void, if taken to be
true. renders this court without juris-
diction, as it can not be assumed that
the defendant city will attempt to en-
force a void ordinance.
City Makes Answer in Case.
The answer of the city, filed with the
demurrer, by the city solicitor, makes a
general denial of all the important
allegations of the gas company's pc
tition. -'i a.
This reply says that the suit does
not involve the sum Of $4,000, but only
class in question the validity of GER
tain ordinance. The city further says
that in establishing and erecting the
combined electric light and gas plant
the company did not expend one-half
Of S35000O which the company claims
to have expended for this purpose in
it's petition.
Says Service is Poor.
Touching in its answer to the in
adequate gas service it says: "That
for many years the gas service has
been wholly inadequate and insult
ficient for the needs and demands Of