Martinez v. Maverick County Water Control & Improvement District No. 1

DAWKINS, District Judge

(dissenting).

With my approval the majority has incorporated the first portion of the opinion which I had prepared on the previous submission of this case. Further consideration has led me to the same conclusion stated in that opinion, and I must therefore disagree with the views of my brothers. The majority found it unnecessary to consider the question of jurisdiction or whether the suit was properly brought as a class action. These issues, as well as those discussed by the majority, were resolved by me in favor of the appellants, and I feel it necessary to discuss all of them in order to present my views clearly. However, I shall not repeat the statement of the case adopted by the majority, simply including it by reference.

Jurisdiction

The motion to dismiss raised the issue of jurisdiction which, if good, made it unnecessary to consider the matter of discretion, or whether it could more appropriately be handled in the state court.

Although there is undisputed diversity of citizenship between the record parties, *674under Rule 17(a), the court was called upon to determine if the named plaintiffs are real parties at interest in the subject matter of the litigation. This question must first be settled before we reach the class action or the attempt to bring in other parties by affording them an opportunity to intervene. There is no suggestion of any fraud or collusion between the record plaintiffs and the others who took part in the agreement for the suit to be brought by Martinez and Terry Corporation. Admittedly, the arrangement was made because they were not citizens of Texas and could therefore sue in a federal court. In view of the conditions described by the lower court, prevailing for many years, wherein all efforts at solution had failed, can it be said that the equitable relief sought here must be denied ? There is a serious question as to whether a state trial court, district or circuit, in Texas can exercise its jurisdiction beyond its territorial limits ; whereas, the lower court’s authority covers a much larger area and a substantial section of the river as described in the complaint. Presumably it would be free from the political and other conditions which, according to the court below, have thwarted efforts at relief over the years. Nor was there anything immoral in the understanding that all who hoped to benefit should share the expense, including attorneys’ fees. The record complainants were bona fide owners or claimants of a property interest in the lands and waters involved, as were the members of the association and others who requested that they be represented in the litigation. In the absence of fraud or collusion, the motives of litigants in seeking federal jurisdiction are immaterial. Blair v. City of Chicago, 201 U.S. 400, 26 S.Ct. 427, 50 L.Ed. 801. I therefore believe that this phase of the question of jurisdiction is controlled by Wheeler v. City and County of Denver, 229 U.S. 342, 33 S.Ct. 842, 57 L.Ed. 1219, and must be resolved in favor of the plaintiffs (appellants). See also Moore, Federal Practice (2d Ed.), Vol. 3, Par. 17.03, p. 1311, et seq.; Par. 17.05, p. 1319, et seq.; Par. 17.07, p. 1330; Par. 23.13, p. 3477, et seq.

In Johnson v. River land Levee District, 8 Cir., 117 F.2d 711, 714, 134 A.L. R. 326, relied upon by the trial court, three non-residents of Missouri brought an action in the federal court seeking to enforce liens and follow assets as holders of certain bonds of the defendant levee district. Subsequently, an order was entered granting leave to amend and authorizing other bondholders to “ ‘intervene and join Plaintiffs in said amended complaint’.” A large group did join the plaintiffs in the amended complaint, styling themselves “intervener-Plaintiffs”, some of whom were residents of the same state as the defendants. On motion, the trial court held, inter alia, that it did not have jurisdiction because there was not complete diversity of citizenship. The Court of Appeals affirmed, holding that because this was not a class action and because the original plaintiffs had voluntarily joined with the “intervener-plaintiffs”, jurisdiction was defeated when diversity was lost.

Clearly that ease furnishes no authority for the holding in this instance that the association was the real party at interest, rather than the record plaintiffs. Whether or not the subsequent entry of the other landowners and lessees as prayed for by the record plaintiffs here will defeat jurisdiction depends upon whether or not this is a proper class action. Stewart v. Dunham, 155 U.S. 61, 5 S.Ct. 1163, 29 L.Ed. 329; Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. Hence I proceed to a consideration of that issue, pausing to note also that in the Johnson case the plaintiffs did not allege facts to bring their suit within the requirements of a class action.

The Class Action.

Rule 23 of Civil Procedure provides:

“Class Actions
“(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of *675them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
“(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
“(2) several, and the object of the action is the adjudication of claims which do or may effect specific property involved in the action; or
“(3) several, and there is a common question of law or fact effecting the several rights and a common relief is sought.” (Emphasis supplied.)

The word “May”, as used in this rule, I think refers to the litigant, according him the option of bringing the class action, rather than to an unqualified discretion in the court to deny it. Of course, as in all other cases, the court has the duty to determine whether the facts alleged bring it within the provisions of the rule governing class actions.

I think the complaint does allege facts which bring it within the fair intendment of Rule 23. It states that the plaintiffs and hundreds of others, enjoying rights as riparian owners and lessees superior to those of the defendants also consisting of hundreds of other persons, known as appropriators, (each class being too numerous for inclusion in the action as filed) have been arbitrarily deprived of their lawful rights by the defendants, with resultant great harm and irreparable damage to plaintiffs in the use of their properties for growing crops and raising livestock; and that this condition can be remedied only through judicial declaration and enforcement of those rights. If they can prove these allegations on behalf of the class they seek to represent, since the rights all stem from the same or similar sources, including the charge that the utility of their properties is being destroyed by the same illegal acts committed jointly by the defendant class possessing inferior rights to that portion of the flow involved, to wit, the arbitrary taking of all the water from the river before it reaches plaintiffs’ lands including that to which their class has a prior claim, then it would seem that a clearer case for the intervention of a court of justice to adjudicate and protect those rights could scarcely be imagined.

The fact that the 50 or more members of the association, along with many other individuals, specifically requested the two named plaintiffs to represent them is sufficient, I believe, to justify the conclusion that the procedure chosen will “fairly insure the adequate representation” of the class, in so far as numbers are concerned. Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942; Moore, Federal Practice (2d Ed.) Vol. 3, Par. 23.07 (4), p. 3432; Purcell v. Summers, D.C., 34 F.Supp. 421, reversed on other grounds, 4 Cir., 126 F.2d 390. Further, the allegations disclose (and they derive support from the affidavits which are not controverted) that the interests of all members of the class which plaintiffs seek to represent are the same, since they are all owners or lessees of property which was severed from the sovereign prior to March 19, 1889, and the relief sought is identical.

As stated by Professor Moore in his work on Federal Practice, Vol. 3, Par. 23.05, p. 3422: “Neither the multiplicity of parties, nor the expediency, nor the inconvenience of bringing parties before the court will, in themselves, justify the class suit”, but rather “the circumstances surrounding the case” which “must be disclosed by a positive showing” in the allegations, supporting affidavits or proof on the part of those who seek relief in this form; that the trial court is in the best position to judge of those conditions and its decision “is usually considered final, unless there is abuse” of discretion, citing appropriate authorities. (Emphasis supplied.)

*676What has been said earlier, I believe, is sufficient to disclose beyond question that complainants present a case by their pleadings and affidavits, entitling them to bring this class action. Although not binding on this court in a matter of procedure, the course pursued here has been approved by the Texas Court of Civil Appeals, in Hidalgo County Water Improvement District No. 2 v. Cameron County Water Control and Improvement District, 253 S.W.2d 294, error refused by the Supreme Court. See also Weeks v. Bareeo Oil Co., 7 Cir., 125 F.2d 84; Rank v. Krug, D.C.Cal., 90 F.Supp. 773; Everglades Drainage League v. Napoleon B. Broward Drainage District, D.C.Fla., 253 F. 246, appeal dismissed 251 U.S. 567, 40 S.Ct. 219, 64 L.Ed. 418; Smith v. Swormstedt, supra; Purcell v. Summers, supra; Kolon and Rosenfield, “Contemporary Function of a Class Suit”, 8 U. of Chicago Law Review 684. In Hidalgo County Water Improvement District No. 2 v. Cameron Water District, cited above, the court dealt with the exact problem presented here. After calling attention to the fact that in the same case it had denied a writ of prohibition sought therein by the defendants to set aside a temporary injunction granted by the trial court, see Tex.Civ.App., 250 S.W.2d 941, the Texas Court proceeded to review the law and jurisprudence both of Texas and the country generally, which included McKinney on Irrigation and Water Rights, Vol. 3, 2d Ed., Sec. 1532; 30 Am.Jur., “Irrigation”, Sec. 15; and citing also a host of Texas cases as supporting the issuance of a temporary injunction in that case. It also stated that the trial court had spent the better part of two weeks in hearing the application for the writ to maintain the status quo until it could be tried on its merits, building up a record of 1196 pages. That opinion also stated that in 1948 “users along the Rio Grande voluntarily formed a Water Conservation Association to cope with the limited flow of the river by a self-imposed rationing among users”; that this “system substantially met the needs of the users for a long continuous period of time, and remained in operation until April, 1952, three days before this suit was initially filed * * * ” on which date the rationing committee went out of existence when the users refused to abide by the rationing schedule. The recitals “in the decree [of the trial court in that case] revealed the long-standing status of water users and that status was continued in operation by the decree.” It quoted extensively and with approval from the decree of the trial court:

“Due to increased consumption of said water in the Counties of Cameron and Hidalgo in recent years, and diminution of the flow of the Rio Grande due to construction of dams and reservoirs on Mexican and American tributaries of the Rio Grande, the actual flow of the Rio Grande at periods of highest consumption of said waters has been insufficient each year since 1948 to supply the needs of all water users entitled thereto, without some form of procedure for lawful distribution and control of diversions from the Rio Grande for such uses.”

The court then proceeded:

“Those findings by the trial court show that at all times prior to 1948 the river furnished ample water for everyone. Commencing about that time, a water famine was avoided by a valley-wide voluntary self-control of the supply. By such a means, there continued to be a water supply for all users. Not until shortly before the commencement of this suit did that situation change. The upper diverters abandoned the voluntary water apportionment and 'used, much more than their respective reasonable share of the available American flow of the Rio Grande to the detriment of all others riparian owners having lower points of diversion from the stream’. From a status where everyone received some water, there arose a different status where some received all the water and others received none.”

*677The Texas appellate court concluded that this made it imperative that the trial court there should intervene to prevent abuses of the rights of some by others, since no other enforceable remedy existed. It took note of the fact that the trial court had appointed a master, as is requested here, to determine the names and properties of all of those interested on either side and provided a means for bringing all of them before it if their interests would be affected by an ultimate decision upon the merits.

In a well considered opinion on the question of what conditions entitle complainants to bring a class action, the Court of Appeals for the Seventh Circuit, in Weeks v. Bareco Oil Co., supra [125 F.2d 91], although involving an anti-trust suit, reviewed the law and took occasion to say what was necessary under Rule 23 in a proceeding of this kind:

“Whether plaintiffs meet the requirements of Rule 23 is the precise question we must answer. This rule calls for ‘one or more’ plaintiffs. In further defining the phrase ‘one or more,’ the Supreme Court, by this rule, said: ‘as will fairly insure the adequate representation of all.’ This qualifying phrase deals not alone with the number of plaintiffs. It calls for plaintiffs who can insure the adequate representation of all the others. [Emphasis by the authority quoted.] The application of the rule to each case necessitates a study of the factual situation which is at the bottom of the asserted liability of defendants.
“In the instant case we have two plaintiffs suing for and on behalf of nine hundred. This, on its face, seems small, but nevertheless a suit may be welcomed and supported, in fact, by a large percentage of said nine hundred, although many would not care to start separate, individual suits. Others, because of fear of costs and any other good reason, may not favor the class suit. May it be said that the two, therefore, did insure an adequate representation of the others?” (Emphasis supplied.)

The author of that opinion then proceeded to cite and analyze many authorities on the subject. However, it found that the defendants had alleged, and supported by affidavits or other evidence, circumstances which made it impracticable to use the class action procedure, yet it announced: “Our conclusion is that dismissal would not be justified on the ground that plaintiffs are too few in number compared to the total number in the class.” It pointed out that the defendants had submitted various forms of proof in support of the motion to dismiss which required it to be sustained; citing numerous authorities; but added: “Were there factual disputes, the court could have heard evidence and determined the conflict. As it now stands, the attack on plaintiffs’ ability to insure adequate representation stands undisputed.” The dismissal by the lower court was sustained, as I gather, mainly because of the failure of plaintiffs to offer any evidence to support the claim that they fairly represented all others in the same class.

Declaratory Relief.

Having concluded that the trial court had jurisdiction and that this is a proper class action as brought, I turn now to a consideration of whether the court below was correct in declining to entertain the suit as one for declaratory relief.

The Declaratory Judgments Act, 28 U.S.G. §§ 2201-2202, provides:

“In a case of actual controversy within its jurisdiction, * * * any court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *
“Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose *678rights have been determined by such judgment." (Emphasis supplied.)

Rule 57 of Civil Procedure, implementing the quoted statute, states:

“The procedure for obtaining a declaratory judgment. * * * shall be in accordance with these rules * * *. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. * * * ” (Emphasis supplied.)

The language of the statute clearly implies, and the cases so hold, that ordinarily the granting or denial of declaratory relief is discretionary with the trial judge;1 2but that discretion is reviewable on appeal, and the finding reversible if unsound.2

Of course, the statute itself requires that there be jurisdiction and an actual controversy between the litigants, and the court must find these to exist before its discretion can be exercised. When the statutory requirements are met, it is universally held that the Act, being remedial in nature, should be liberally construed; 3 however, there are several circumstances to be taken into consideration in the proper exercise of discretion. Two of these are present in every case: (1) Whether a declaratory judgment will clarify and settle the legal relations at issue, and (2) whether the declaration will terminate and afford relief from the uncertainty and controversy which gave rise to the proceeding.4 In addition, since the procedure is equitable, it is necessary to examine the factual situation to determine if there is a more effective and appropriate remedy available, or if the declaration will unduly disturb the balance between the federal and state systems.5 **If inquiry convinces the court that the suit meets all of these tests, it should entertain the action.

I have found, and I believe correctly, that the court below had jurisdiction of both issues; and while there is some language in the memorandum opinion of the trial judge, as well as argument by appellees, to the contrary, I think it clear that there is an actual controversy between the parties to this litigation. Plaintiffs and their class contend that their rights to the waters of the Rio Grande are riparian, superior by Texas law to the rights of the defendants and their class. Defendants deny this contention, particularly the Maverick Water District, which claims to derive its authority directly from and that it is an instrumentality of the State. The declaration sought is the settlement of this *679controversy. True, plaintiffs seek other relief, coercive in nature, when they ask the court to take the waters of the river into custody and to set up machinery for their ultimate apportionment in times of shortage. That portion of the prayer is in reality a request that the court establish procedure for executing the declaratory judgment which it is asked to render. The real controversy is over the legal rights to the water, and those rights can be determined in a declaratory judgment; and as was said earlier, a more serious condition can hardly be imagined.

It is at this point that the majority finds justification for the trial court’s dismissal of the suit. My brothers analyze the effect of a decree upon persons who are not parties to the present litigation; and finding that such persons would not be bound, they conclude that the declaration sought would not terminate the controversy. Although the effect of the decree is not entirely free from doubt, I am inclined to agree that persons not parties to the litigation would not be bound thereby. I agree also that as an abstract proposition of law the pure doctrine of stare decisis, would not apply to subsequent litigation between other persons on the same subject matter.

However, a declaration of the substantive rights involved here will certainly furnish persuasive judicial authority upon which future controversies can be based; and in the same court, the declaration of rights will certainly be binding in subsequent proceedings which are ancillary to the present litigation. See Moore, Federal Practice, Vol. 3 (2d Ed.), Par. 23.11(3), p. 3465 et seq.; Cyc. of Fed.Law and Procedure, 2d Ed., See. 2.16, p. 524, and authorities cited there; Id., 3d Ed., Sec. 2.429, p. 124 et seq., and authorities cited. Bence, as to the parties to this suit and ancillary proceedings, the adjudication sought will settle the issues and terminate the controversy to the same extent that any declaratory judgment does in any dispute. To be sure, the ultimate solution to the problem presented lies in one unified public plan of priority and distribution applicable to all persons claiming rights in the waters of the Rio Grande throughout its whole length; but there are private disputes lesser than, even though a part of, the over-all problem. This case presents such a private dispute, and a declaration of rights and priorities by the trial court will remove all doubt and settle the dispute at least as to all present and subsequent parties. I do not think it can be said that because no court is in a position to pass upon the rights of all persons using water from the river over its entire course, one having the power to do so in a lesser and urgent area should decline. Indeed, the absence of such a tribunal strengthens the argument for entertaining this action, for in relegating the litigants to the state courts, this Court complicates the problem by requiring, in effect, more suits than are necessary.

I also disagree with the conclusion of the majority that maintenance of this suit will necessarily create a situation incompatible with a proper federal-state relationship. This case does not seek an advisory interpretation of a public statute enacting state policy;6 nor does it involve the validity of a state revenue measure;7 nor, with deference to the majority, does it present the type of federal-state conflict illustrated in Public Service Commission of Utah v. Wyeoff Co., supra, note 1. The latter case was, in effect, an attempt to have the federal court define and limit the jurisdiction of the state commission and enjoin any attempt by the state agency to regulate an operator licensed by the Interstate Commerce Commission.

However, in so far as this record shows, there is no state agency having control over the correlative rights of riparians and appropriators, nor are there any statutes which purport to distribute river waters among them in ac*680cordance with expressed state policy. In fact, according to the memorandum opinion of the trial judge and the arguments, state authorities have repeatedly failed in efforts to devise and establish any such control. As was said in Montezuma Canal Co. v. Smithville Canal Co., 218 U.S. 371, at page 385, 31 S.Ct. 67, at page 73, 54 L.Ed. 1074:

“But because it was within the legislative power to provide administrative machinery to supervise the common use of water in a flowing stream by those having a lawful right to appropriate the water of that stream for beneficial use, it does not result that the decree entered by the court below was in excess of its authority. On the contrary in view of the absence of legislative action on the subject, and of the necessity which manifestly existed for supervising the use of the stream by those having the right to take the water in accordance with the decree which, undoubtedly to that extent, the court was authorized to render, we think the action taken by the court did not transcend the bounds of judicial authority, and therefore is not justly amenable to the attack made upon it.” (Emphasis supplied.)

The prayer for declaratory relief simply seeks to have the court adjudicate the validity and priority of the conflicting water rights under state law, and I can see nothing in such a prayer to differentiate this case from any other where jurisdiction is based upon diversity of citizenship and the court is required to follow state law.

I believe the difficulty arose from the trial court’s failure to distinguish between the relief sought through adjudication of the substantive right of a superior claim to the water and the procedural means suggested for its enforcement. If the court should determine and declare that plaintiffs and their class do in fact have legal rights to the waters superior to those of defendants and their class, and it became necessary to seek enforcement, the court could then determine how this shall be done. However, once this main issue is settled, it seems not at all improbable that the affected members of the two classes could work out an amicable adjustment of the matter, as they had done before the litigation commenced in Hidalgo County Water Improvement District No. 2 v. Cameron County Water District, supra.

In the event, however, that no such agreement resulted, it may be noted that there is sound judicial authority for the appointment by a court of equity of a water master or commissioner, with duties and powers very similar to those outlined in plaintiffs’ suggested procedure. See Montezuma Canal Co. v. Smith-ville Canal Co., supra. Moreover, in Hid-algo County Water Improvement District No. 2 v. Cameron County Water District, cited above, the Texas Court of Civil Appeals seems to have pointed the way by approving the precise procedure which plaintiffs suggest here. Further, it may be added that if plaintiffs should be found not entitled to the exact relief requested, the court could accord such as may be deemed appropriate. Rule 54(c); Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 53 S.Ct. 454, 77 L.Ed. 1011; Hutches v. Renfroe, 5 Cir., 200 F.2d 337; Cohen v. Randall, 2 Cir., 137 F.2d 441. The nature and extent of the relief to be granted could be determined after trial on the merits.

I do not agree that the fact that the Rio Grande is an international boundary and the subject of treaties between the United States and Mexico requires a federal court to decline this suit. The Treaty of November 14, 1944, providing for the construction of dams and the control of water usage thereby, has been in effect for nearly ten years, and the plight of abutting landowners and lessees in this part of Texas has grown more acute. Little, if anything, has been done to ease their difficulties; and this court should not force them to await the construction of dams which are still in the planning stage. It is not improper to observe that if courts having the power to adjudicate some of the problems involved exercise *681that power toward finding a solution, perhaps the legislative and executive authorities (who alone can provide a total solution) will make concerted efforts to translate plans into action.

Neither do I think that the crowded condition of the docket is a sufficient reason for refusal to entertain the suit. We may take notice of the fact, as disclosed by the reports of the Administrative Office of the Federal Courts that in much of the nation there is congestion which causes undue delay. However, this is a problem for the legislative branch of the government and can be effectually remedied only by creating a sufficient number of judgeships to handle the business of the courts.

Venue.

The trial court conceded without deciding that the plaintiffs could bring this action in the Southern District of Texas. However, in its efforts to sustain the dismissal of the action, Maverick Water District re-urges here its position that the Southern District was not the proper venue. It argues that the real purpose of this suit was to stop its diversion of water from the Rio Grande, and that this is therefore a personal action against it. Thus, it says, the suit should have been brought in the Western District, its statutory domicile.

This contention, I believe, is unsound. In the first place, at least one of the defendants (McQuatters) was alleged to be a resident of the Southern District, and the Judicial Code provides that an action not of a local nature against defendants residing in different districts of the same state may be brought in any of said districts. 28 U.S.C.A. § 1392(a). Further, plaintiffs allege and defendants admit that this is a local action; and the authorities support this view. Texas Courts have declared that riparian rights to water are incorporeal heriditaments, appurtenances to the realty. See Magnolia Petroleum Co. v. Dodd, 125 Tex. 125, 81 S.W.2d 653; Zavala County Water Imp. District No. 3 v. Rogers, Tex.Civ.App., 145 S.W.2d 919; Motl v. Boyd, 116 Tex. 82, 286 S.W. 458. And a suit to adjudicate such rights is a local action. Albion-Idaho Land Co. v. Naf Irr. Co., 10 Cir., 97 F.2d 439; Hunter v. United States Dept. of Agriculture, D.C., 69 F.Supp. 377. It has also been held to be a suit to quiet title or to remove a cloud on the title to real estate. Rickey Land & Cattle Co. v. Miller & Lux, 9 Cir., 152 F. 11; Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 285 S.W. 593. A local action involving property in more than one district may be brought in any of said districts, 28 U.S.C.A. § 1392(b). I therefore conclude that this suit was properly brought in the Southern District of Texas.

Conclusion.

With respect to that portion of the complaint and its prayer for the appointment of a master or commissioner to ascertain the names of owners or lessees and the description and location of their properties to be affected by this suit, it would seem that, to that extent, the relief should be granted, if counsel for the respective sides, in an effort to save costs, cannot perform this service. If the latter course is pursued, the court below could order the Clerk to mimeograph and send out by registered mail copies of the complaint and of an order advising all of their rights to intervene and be heard, and fixing the time limit in which it must be done.

For the above reasons I must respectfully dissent from the refusal to entertain this action.

. Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407; Alabama State Fed. of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784; Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L. Ed. 291; Samuel Goldwyn, Inc. v. United Artists, 3 Cir., 113 F.2d 703.

. Aetna Cas. & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321; Samuel Goldwyn, Inc. v. United Artists, supra; Moore, Federal Practice, Yol. 6, p. 3030, Par. 57.08(2), and authorities there cited.

. Aetna Cas. & Surety Co. v. Quarles, supra, footnote 2; Ohio Cas. Ins. Co. v. Marr, 10 Cir., 98 F.2d 973; Mutual Life Ins. of New York v. Moyle, 4 Cir., 116 F.2d 434; Mississippi Power & Light Co. v. City of Jackson, 5 Cir., 116 F.2d 924; Dewey & Almy Chemical Co. v. American Anode, 3 Cir., 137 F.2d 68; Oil Workers Int. Union Local No. 463 v. Texoma Nat. Gas Co., 5 Cir., 146 F.2d 62.

. See Borckard, Declaratory Judgments, (2d Ed., 1941), p. 299; Aetna Cas. & Surety Co. v. Quarles, supra; Goldwyn, Inc. v. United Artists, supra, footnote 1; American Cas. Co. of Beading, Pa. v. Howard, 4 Cir., 173 F.2d 924.

. Employers’ Liability Assurance Corp. v. Mitchell, 5 Cir., 211 F.2d 441; Maryland Cas. Co. v. Boyle Construction Co., Inc., 4 Cir., 123 F.2d 558; Chicago Metallic Mfg. Co. v. Edward Katzinger Co., 7 Cir., 123 F.2d 518. See also City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Alabama State Fed. of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Public Service Comm, of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct 236, 97 LEd. 291.

. Alabama State Fed. of Labor v. McAdory, supra, note 1.

. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407.