Rem. & Bal. Code of Wash. Section 8005 authorizes the acquiring of a public utility. Section 8006 provides the method of procedure when it is deemed advisable to purchase any public utility mentioned in 8005, and if in the acquisition a general indebtedness is to be incurred: "Such proposition shall be adopted and assented to by threefifths of the qualified voters of the said city or town voting at said election." Such proceedings were had by the city under its charter provisions and the sections of the statute, supra, that ordinances were enacted for the purchase of the street railway lines of the plaintiff company in which in Ordinance 39025 is the following provision: "Said bonds shall be an obligation only against the special fund created and established in section 5 of this ordinance."

Section 5 creates a special "Municipal Street Railway Bond Fund, 1919," and provides for the payment into this fund of the gross revenues of the street railway system, and in the form of the proposed bonds set out in the ordinance appears "payable solely out of the special fund of the city of Seattle known as the Municipal Street Railway Bond Fund, 1919."

By section 6, Ordinance 39025, it is provided that the city "does hereby irrevocably obligate and bind itself to pay into such fund out of the gross revenues of the municipal street railway system the necessary amounts to meet interest and principal payments upon the bonds as they mature, and such fixed amounts out of such gross revenues are hereby pledged to such semiannual payments of interest and such annual payments of principal, and shall constitute a charge upon such gross revenues superior to all other charges whatsoever, including charges for maintenance and operation."

The Supreme Court in Twichell v. Seattle, 106 Wash. 32, at page 49, 179 P. 127, 130, speaking of the "due regard" clause of the statute, says:

"Whether or not the ordinance and bonds provide for a preference in favor of the bonds and interest out of the gross revenues of the system is unimportant to the integ

rity of the obligations, as demands upon the special fund, because the latter part of section 8008 of the Code covers the matter by providing as follows:

'When any such special fund shall have been heretofore or shall be hereafter created and any such obligation shall have been heretofore or shall hereafter be issued against the same, a fixed amount without regard to any fixed proportion, of revenue shall be set aside and paid into said special fund as provided in the ordinance creating such fund, and in case any city or town shall fail to thus set aside and pay said fixed proportion or amount as aforesaid, the holder of any bond or warrant against such special fund may bring suit or action against the city or town and compel such setting aside and payment.'"

Having in mind the limitations of section 8008 supra, which among other things provides, "The corporate authorities shall have power to create a special fund or funds for the sole purpose of defraying the cost of such public utility or addition, betterment or extension thereto, into which special fund or funds the corporate authorities of such city or town may obligate and bind the city to set aside and pay a fixed proportion of the gross revenues of such public utility, it seems clear that the obligation of the ordinance, supra, is limited to the special fund.

[1] An examination of the issue in the state court cause and the cause pending in this court show that the issues are several, separate, and distinct. The provisions of the statute under which the utility was acquired did not obligate the general fund of the city to the payment of any portion, and the obligation of the city is distinctly limited to the special fund. Clearly the recourse of the plaintiff is to maintain the integrity of the special fund. It is stated that the design and purpose of the plaintiffs in the state court, defendants here, is to preserve the general fund from invasion for the purpose of repleting the special fund for any purpose. The prayer of the complaint in the state court, it is stated, is out of harmony with the contentions of plaintiff at bar. The prayer in the complaint usually controls as to the relief demanded within jurisdictional facts well pleaded. An examination of the complaint, I think, discloses that the only facts well pleaded within the jurisdiction of that court are facts going to the integrity of the general fund and cannot be said to be an attack upon the integrity of the special fund devoted to the purposes which have been

6 F. 443; Railroad Co. v. Kuteman, 4 C. C. A. 503, 54 F. 551; Abeel v. Culberson (C. C.) 56 F. 333; President v. Merritt (C. C.) 59 F. 7."

The Court of Appeals of this circuit, in Mills v. Provident L. & T. Co., 100 F. 344 347, 40 C. C. A. 394, indorsed the sentiment that section 720, Rev. St., was passed to prevent unseemly conflict of courts of different sovereigns exercising concurrent jurisdiction over the same territory, and that the purpose of the statute is so important that a liberal construction should be given to accomplish

it.

The prohibition extends to parties engaged in proceedings in state courts. Cœur d' Alene Ry. & Nav. Co. v. Spalding, 93 F. 280, 35 C. C. A. 295, writ denied, 174 U. S. 801, 19 S. Ct. 884, 43 L. Ed. 1187; Peck v. Jenness, 7 How. 612, 12 L. Ed. 841. Also, orders entered by the federal court which necessarily have that effect. W. U. T. Co. v. L. & N. R. Co., 201 F. 919, 120 C. C. A. 257; Haines v. Carpenter, 91 U. S. 254, 23 L. Ed. 345.

The language employed by the Court of Appeals of the Third Circuit in Essanay Film Mfg. Co. v. Kane, 264 F. 959, at page 960, has application to this case:

"The sole purpose of the bill is to obtain an injunction to prevent the defendant proceeding in the state court. The practical effect of such injunction would be to enjoin the state court from proceeding in the action. Such an injunction, except under the Bankruptcy Act (Comp. St. § 9585 et seq.), no court of the United States can

With this exception it is expressly forbidden by statute. Judicial Code, § 265; Diggs v. Wolcott, 4 Cranch, 179, 2 L. Ed. 587; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644. The ban of the statute is not evaded by directing the injunction to the litigating party. Peck v. Jenness, 7 How. 612, 12 L. Ed. 841; Coeur d'Alene Ry. & Nav. Co. v. Spalding, 93 F. 280, 35 C. C. A. 295. This rule is not modified by Simon v. Southern Railway Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492. The crux of that decision, as we understand it, is embodied in the following sentence appearing on page 124 of 236 U. S., on page 258 of 35 Sup. Ct. (59 L. Ed. 492): 'But when the litigation has ended and a final judgment has been obtained-and when the plaintiff endeavors to use such judgmenta new state of facts, not within the statute, may arise.'"

This action clearly is ancillary to or in aid of the suit for "specific performance."

No right to relief other than by way of an injunction is sought. "Such an injunction, as stated, except under the Bankruptcy Act, no court of the United States can grant." Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Hull v. Burr, 234 U. S. 712, 34 S. Ct. 892, 58 L. Ed. 1557.

Rodgers v. Pitt (C. C.) 96 F. 668, affirmed Pitt v. Rodgers, 104 F. 387, 43 C. C. A. 600, was an equitable action, adjudicating rights between the parties upon the same subject-matter, pending in the state and federal courts, of which the federal court had first obtained jurisdiction of the parties by provisions of a Nevada statute, and the subject-matter and the order of injunction issued out of the action in which the subject-matter was litigated.

In St. Louis M. & M. Co. v. Montana M. Co. (C. C.) 148 F. 450, the court held that a party may not appear in court and wage a contest through the nisi prius and appellate courts to judgment against him and render such judgment ineffectual by instituting a new suit in a state court with a view of relitigating the question of such judgment.

In Miller & Lux v. Rickey, 152 F. 11, 81 C. C. A. 207, the federal court in Nevada acquired jurisdiction by suit to quiet title to an appropriation of water to a stream in that state, as against defendant a resident of California. The court maintained such jurisdiction as against subsequent. similar action brought by the defendant against the same parties in the state court of California. The court having jurisdiction of the parties, the res-the land-protected its jurisdiction against the encroachment, and held that it was immaterial whether the encroachment was from within or without the state. The right asserted was in the action seeking equitable rights and not in an ancillary proceeding.

In Kansas City Gas Co. v. Kansas City (D. C.) 198 F. 500, the court held that the enforcement of a municipal ordinance purporting to be an exercise of the police power will be enjoined where it is unequal, unjust, or altogether unreasonable, where obedience would require an expenditure which would render its operation confiscatory or it impairs the obligation of a contract under the mere guise or pretext of contributing to the public safety, health, and welfare which it is not adapted or intended to secure, and the courts will go behind its letter for the purpose of determining its real substance and effect.

Allington & Curtis Mfg. Co. v. Booth, 78

And prays that the defendants be enjoined "from instituting suit against the plaintiff or taking any steps whatever against the plaintiff to prevent or interfere with the right of the plaintiff to collect the interest payable on the bonds herein before mentioned, 99 and upon determination they be permanently enjoined. No act is charged indicating malicious conduct or fraudulent acts, the resultant effect of which would mitigate against any rights of the plaintiff. The phrase "conspired and confederated" are impotent in a civil action, and to give potency facts must be set out which show malicious conduct. Simple conspiracy is not actionable. Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Herron v. Hughes, 25 Cal. 556. Malice or unlawful or fraudulent act is the gist of the action, conspiracy being only matter of aggravation or inducement. Van Horn v. Van Horn, 52 N. J. Law, 284, 20 A. 485, 10 L. R. A. 184, and an allegation of conspiracy is not sufficient to sustain an action where no direct fraud is charged. McHenry v. Hazard, 45 Barb. (N. Y.) 657. The right of recovery is predicated upon wrong threatened or accomplished, and while the conspiracy may be charged and proved as a matter of aggravation, the recovery is upon the tort. Van Horn v. Van Horn, supra. To sustain a tort action, the outgrowth of conspiracy, to impair a contract, acts must be averred which show concurrence of fraud and damage (Herron v. Hughes, supra), and which if done by one party would constitute a cause of action (Sleeper v. Baker, 22 N. D. 386, 134 N. W. 716, Ann. Cas. 1914B, 1189). An action begun by one on the same allegations confessedly would not state a cause of action. Malice being the gravamen of the offense, it is not enough to say that the act of the defendants is malicious, but the matter of the grievance must be specially set forth to challenge the attention of the chancellor. Savile v. Roberts, supra. The charge must be specific, and acts upon which fraud is predicated must be set out with certainty and particularity. And where one maliciously interferes in a contract between two parties, and induces one to break that contract to the injury of the other, the party injured may maintain an action against the wrongdoer. Angle v. C., St. P., etc., Ry.,

151 U. S. 1, 14 S. Ct. 240, 38 L. Ed. 55. In this case upon which the plaintiff relies, malice, tortious acts, and injury are all present. The court at page 11 (14 S. Ct. 244) says:

"It bribes the trusted officers of the Portage Company to transfer the entire outstanding stock into its hands, or at least place it under its control." Again:

"To prevent any action by the faithful officers of the Portage Company, it wrongfully obtains an injunction tying their hands."

Page 12 (14 S. Ct. 244):

"By false representations to the Legislature as to the facts of the case, it persuaded that body to revoke the grant to the Portage Company and bestow the lands upon itself."

Again:

"Without notice, without hearing, and by false allegations, it secured an injunction to stay the hands of the honest officers of the Portage Company. Such wrongful use of the powers and processes of the court cannot be recognized as among the legiti mate means of contest and competition. It burdens the whole conduct of the Omaha Company with the curse of wrongdoing, and makes its interference with the affairs of the Portage Company a wrongful interference."

Page 15 (14 S. Ct. 244):

"As such sole stockholder, it used its powers to transfer the property of the Portage Company to itself, and its conduct all the way through was marked by wrongdoing."

[2] The only act charged against defendant is the bringing of an action in the state court, a court of competent jurisdiction. This was lawful. Fancying they had a grievance and claiming a right in themselves, they had a right to sue (Savile v. Roberts, 1 Ray. 374), and having a right to sue the law does not inquire into the motives (Clark v. Clapp, 14 R. I. 248; Robertson v. Montgomery B. B. Ass'n, 141 Ala. 348, 37 So. 388, 109 Am. St. Rep. 30, 3 Ann. Cas. 965).

A court will not presume that a court of competent jurisdiction will permit itself to be made the instrumentality through which an unlawful purpose may be accomplished. Robertson v. Montgomery B. B. Ass'n, supra; Dayton v. Relf, 34 Wis. 86; Schell v. Erie Ry. Co., 51 Barb. (N. Y.) 368; Wolfe v. Burke, 56 N. Y. 115.

As stated in the opinion filed the 12th of