ON MOTION OF THE CITY OF PHILADELPHIA FOR LEAVE TO INTERVENE.
Vinson, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark, Minton
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 State of New Jersey, in 1929, against the State of New York and the City of New York, praying for injunctive relief against a proposed diversion of Delaware River water from tributaries within the State of 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
for its use. The Commonwealth of 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. 336, and entered its decree in conformity therewith, 283 U.S. 805.
The 1931 decree enjoined the State of 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., at p. 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.
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 Commonwealth of 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 worth-while 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 ...