The opinion of the Supreme Court of Louisiana is strictly part
of the record, and is so considered on writ of error from this
Court.
The provision of the Constitution of the United States, which
declares that no state shall pass any law impairing the obligation
of contracts is aimed at the legislative power of the state, and
not at decisions of its courts, or acts of executive or
administrative boards or officers, or doings of corporations or
individuals.
This Court has no jurisdiction of a writ of error to the highest
court of a state on the ground that the obligation of a contract
has been impaired unless some legislative act of the state is
upheld by the judgment sought to be reviewed, and when the state
court gives no effect to a law of the state subsequent to the
contract, but holds, upon grounds independent of that law, that the
right claimed was not conferred by the contract, the writ of error
must be dismissed for want of jurisdiction.
The legislature of Louisiana in 1877, having granted to a
corporation the exclusive right of constructing waterworks to
supply the City of New Orleans and its inhabitants with water,
provided that nothing in this charter should prevent the city
council from granting to any person contiguous to the Mississippi
River permission to lay water pipes exclusively for its own use, an
ordinance of the city council in 1883, granting such permission to
a corporation whose property is separated from the river by a
street and a broad quay or levee owned by the city, is but a
license from the city council exercising an administrative power,
and not a law of the state, and if the highest court of the state,
in a suit between the waterworks company and the licensee, gives
judgment for the latter, upon the construction and effect of the
charter and the license, and not because of the provision of the
state constitution of 1879 abolishing monopolies, this Court has no
jurisdiction on writ of error, although the question whether the
licensee's property was contiguous to the river was in
controversy.
This was a petition, filed March 30, 1883, in the civil District
Court for the Parish of New Orleans by the New Orleans Waterworks
Company against the Louisiana Sugar Refining Company and the City
of New Orleans, to restrain the laying of water pipes from the
factory of the Louisiana Sugar Refining Company through the streets
and thoroughfares
Page 125 U. S. 19
of the city to the Mississippi River. The allegations of the
petition are in substance as follows:
That the Legislature of Louisiana, by an Act of April 1, 1833,
chartering the Commercial Bank of New Orleans, declared the chief
object of that corporation to be "the conveying of water from the
river into the City of New Orleans and its faubourgs, and into the
houses of its inhabitants," and enacted that it should
"have forever the exclusive privilege, from and after the
passing of this act, of supplying the city and inhabitants of New
Orleans and its faubourgs with water from the River Mississippi by
means of pipes or conduits,"
and the right to construct the necessary works for that purpose,
and provided that its works, rights, and privileges might be
purchased by the City of New Orleans at any time after thirty-five
years from the passage of the act. That in 1869, the City of New
Orleans purchased the same accordingly, and took charge of and used
the works for the purpose of supplying the city and its inhabitants
with water. That the act of the Legislature of Louisiana of March
31, 1877, incorporating the plaintiff, contained the following
provisions:
"SEC. 2. That immediately after the organization of the said
waterworks company as hereinafter provided, it shall be required to
issue to the City of New Orleans stock to the amount of six hundred
and six thousand six hundred dollars, as full paid, and not subject
to assessment, and in addition thereto, one similar share for
everyone hundred dollars of waterworks bonds which said city may
have taken up heretofore and extinguished by payment, exchange, or
otherwise, and that the residue of said capital stock shall be
reserved for the benefit of all holders of waterworks bonds, to the
extent of the amount now outstanding, who may elect to avail
themselves of the provisions of this act."
"SEC. 5. That the said waterworks company shall own and possess
the privileges acquired by the City of New Orleans from the
Commercial Bank; that it shall have for fifty years from the
passage of this act the exclusive privilege of supplying the City
of New Orleans and its inhabitants with water
Page 125 U. S. 20
from the Mississippi River or any other stream or river by means
of pipes and conduits, and for erecting or constructing any
necessary works or engines, or machines for that purpose,"
and have authority
"to lay and place any number of conduits or pipes or aqueducts,
and to cleanse and repair the same, through or over any of the
lands or streets of the City of New Orleans, provided the same
shall not be an obstruction to commerce or free circulation."
"SEC. 11. That the City of New Orleans shall be allowed to use
water from the pipes and plugs of said company now laid, or
hereafter to be laid, free of any charge, for the extinguishment of
fires, cleansing of the streets, and for the use of all public
buildings, public markets, and charitable institutions."
"SEC. 17. That at the expiration of fifty years from the
organization of the company, the city shall have the right to buy
the works, conduits, pipes, etc., of the company at a valuation to
be fixed by five experts, . . . but should the city neglect or
refuse to purchase said works, etc., as above provided, the charter
of the company shall be
ipso facto extended for fifty
years longer, but without any exclusive privilege or right to
supply water, according to the provisions of the charter."
"SEC. 18. That nothing in this act shall be so construed as to
prevent the city council from granting to any person or persons,
contiguous to the river, the privilege of laying pipes to the
river, exclusively for his own or their own use."
That on April 9, 1878, the city transferred the waterworks and
franchises aforesaid to the plaintiff. That
"since said transfer the petitioner has faithfully discharged
the trust imposed on it, and complied with all its obligations;
that, by virtue of the aforesaid exclusive privilege thus conferred
upon it by the aforesaid charters, statutes, and acts of transfer,
the City of New Orleans cannot grant to anyone the privilege of
laying pipes to the river to convey water within her limits without
a flagrant violation of the aforesaid contracts and a breach of
warranty, with the exception, however, of such privilege or
facility as said city may think it expedient to extend riparian
owners of property lying contiguous to said river. "
Page 125 U. S. 21
That the City of New Orleans granted permission to the Louisiana
Sugar Refining Company, a corporation domiciled in the Parish of
Orleans, to lay pipes from its factory to the Mississippi River, as
appeared by the following ordinance, adopted by the city council on
March 13, and approved by the mayor on March 15, 1883:
"An ordinance providing for the erection of all necessary
machinery, boilers, and engines, and laying of water and sewerage
pipes in connection with the Louisiana Sugar Refining Company's
works."
"Be it ordained that permission be, and is hereby, granted to
the Louisiana Sugar Refining Company to erect all necessary
machinery, boilers, and engines in their factory in course of
construction in the square bounded by Front, Clay, Bienville and
Custom-House streets, and to lay water and sewerage pipes from said
factory to the Mississippi River according to lines and grades for
same to be furnished by the city surveyor, provided that all
excavations and street crossings, paving, etc., broken up shall be
replaced, repaired, and relaid to the entire satisfaction of the
commissioner of public works; revocable at the pleasure of the
council."
That
"under said permission, the said Louisiana Sugar Refining
Company has broken the grounds along and across the streets and
thoroughfares of the said city in the direction of the said river
from its aforesaid factory, and will, unless restrained by the
equitable writ of injunction, complete said works, pipes, and
conduits and proceed to draw therewith water from the Mississippi
River, in violation of the exclusive privileges aforesaid of the
petitioner, and to its great damage and injury;"
and "that said Louisiana Sugar Refining Company has no riparian
rights in the premises, and its property is not contiguous to said
river."
The answer of the City of New Orleans denies all the allegations
of the petition.
The answer of the Louisiana Sugar Refining Company also denies
all those allegations, except that it admits that by the ordinance
aforesaid
"the City of New Orleans granted to it license and permission to
lay water and sewerage pipes from
Page 125 U. S. 22
its factory to the Mississippi River, and that it has availed
itself of the license therein granted, strictly in accordance with
the ordinance aforesaid,"
and
admits that it is the owner of certain property within the
square bounded by Front, Clay, Bienville and Custom-House streets,
in the City of New Orleans, and avers that said property is what is
known as "batture property," and that the rights, ways, and
privileges of the City of New Orleans were transferred by the title
given by the said City of New Orleans to its vendors,
and
"avers that said property fronts on a public street and the
quay, a public place, and that it is contiguous and adjacent to the
Mississippi River, and that the respondent has riparian rights to
draw water therefrom for its own use and manufacturing purposes,
and to convey and discharge its water therein, . . . denies that
the plaintiff corporation has any exclusive privilege and right to
draw water from the Mississippi River by conduits and pipes or
otherwise which could or would impair the use by this respondent
and every other person of the said water for its own and their
supply,"
avers
"that if there be any such pretended exclusive privilege and
right, it is null and void, as in derogation of common right and of
law, . . . denies that it has supplied or is now supplying or
intends hereafter to supply the City of New Orleans or any of its
inhabitants with water or to carry off and discharge any waste
except its own, and expressly avers that the pipes laid are for its
own exclusive use, and that it draws water from said river only for
its own use and manufacturing purposes connected with its said
factory,"
and further avers "that the exclusive rights and privileges
claimed by the plaintiff under its charter would constitute a
monopoly, and are therefore null and void."
Upon a trial by jury, it appeared that the material provisions
of the aforesaid statutes of Louisiana were as above set forth, and
the evidence supported all the allegations of fact in the petition,
except that the acts of the Louisiana Sugar Refining Company, and
the situation of its factory in relation to the river, were proved
to be as follows:
The company was constructing a factory on its land, bounded by
Front, Clay, Bienville and Custom-House Streets, and had begun to
lay water
Page 125 U. S. 23
and sewerage pipes exclusively for the use of its factory, and
according to lines and grades furnished by the city surveyor, from
its factory straight to the river, across Front Street and thence
across a broad quay or levee, owned by the city and open to the
public, except that some large sugar sheds occupied by lessees of
the city stood upon it, and that the tracks of the Louisville,
Nashville and Mobile Railroad were laid across it. The plaintiff
asked the court to instruct the jury:
"1st. That the word 'contiguous,' as used in § 18 of the
charter of the plaintiff company, means riparian, or on the edge of
the river."
"2d. That the City of New Orleans has no right to grant
permission to any person or corporation whose property is not
contiguous to the river to lay pipes or conduits to the Mississippi
River to draw water therefrom through said pipes or conduits for
manufacturing or other purposes."
The court refused to give either of said instructions "on the
ground that the jury were judges both of the law and the facts of
the case," and allowed a bill of exceptions. The jury returned a
verdict for the defendants, and the court, with the verdict and the
evidence before it, gave judgment for the defendants, dismissing
the suit. The plaintiff appealed to the Supreme Court of Louisiana,
which affirmed the judgment, and in its opinion recapitulated the
substance of the provisions of the statute of Louisiana, above
quoted, the conveyances from the Commercial Bank to the City of New
Orleans in 1868, and from the city to the plaintiff in 1877, and
the ordinance, passed by the city council in 1883, granting to the
Louisiana Sugar Refining Company authority to lay pipes from its
factory to the Mississippi River, and stated the question to be
decided and the grounds of its decision as follows:
"The question which arises under such state of facts is simply
whether the City of New Orleans had the right to grant the
authority. If the city had such a right, the defendant company has
a right to exercise it."
"In order to determine that question, it is essential first to
ascertain what is the nature and extent of the privilege
originally
Page 125 U. S. 24
conferred by the state upon the Commercial Bank, and which
passed to the City of New Orleans, by whom it was afterwards
transferred to the defendant [plaintiff] company, organized, as it
was, by a charter which is explicit as to its prerogatives and
responsibilities."
"The right conferred by the legislature in 1833, and confirmed
in 1877, was not to draw water from the river, nor was it to lay
pipes and conduits on the lands and streets of the City of New
Orleans. It was the exclusive privilege of supplying the city and
its inhabitants with water drawn from the river by those means, the
object in view being, on account of benefits derived by the city,
the exclusion of all others, corporations and individuals, from
making a similar supply -- in other words, from selling and vending
water. The Commercial Bank, in common with all the inhabitants of
the city, possessed, independent of any legislative grant or
concession, the right to draw water from the river for its own
purposes and to supply the city and its inhabitants with it; but it
did not, any more than any of the inhabitants of the city, have the
right of laying the pipes and conduits necessary to convey the
water through or over any of the lands or streets of the city, and
to do so it required special authority either directly from the
state or from its functionary, the city herself. The right which it
did not possess, and which no other inhabitant possessed, was the
exclusive privilege of supplying the city and its inhabitants
forever, or a limited time, by means of pipes and conduits laid
through the public soil."
"The moment that privilege was conferred by the state on the
corporation to supply the city and its inhabitants with water from
the river through pipes and conduits which it was authorized to lay
through and over any of the lands or streets of the city, all
preexisting as well as all subsequently arising rights which could
have otherwise been exercised ceased to be available, and
competition for such supply became an absolute legal
impossibility."
"The right to that exclusive privilege, under the present
constitution, is contested by the defendant, but it is entirely out
of place to consider whether it exists or not, as under the
Page 125 U. S. 25
pleadings and the facts, the question of competition is not at
all at issue."
"The City of New Orleans does not claim to have conferred on the
defendant company, and that company does not claim to have received
from the city, the right or privilege of supplying the city and its
inhabitants with water by means of pipes, conduits, and
hydrants."
"The city and the defendant company claim only that the former
had a right to grant and the latter to enjoy the permission of
laying pipes and conduits from the river to its factory for the
sole purpose of supplying itself with water for its own purposes,
and for no other. It cannot be doubted for an instant that as the
city has, under general laws and by her charter which emanates
directly from the sovereign, the exclusive control and regulation
of her public lands, quays, streets, and avenues, she had the right
of permitting the defendant company to lay pipes and conduits
across the quay and through the streets from the river to within
its factory limits for the purpose of supplying itself with the
water needed for its objects. Rev.Civil Code, arts. 450, 453, 455,
457;
Brown v. Duplessis, 14 La.Ann. 842;
Board of
Liquidation v. New Orleans, 32 La.Ann. 915."
"It is true that section 18 of the charter of 1877 expressly
protects riparian or contiguous proprietors against a possible
effect of the exclusive privilege granted, but the provision there
found is not to be construed as one conferring a privilege or right
which otherwise would have had no existence. It is indisputable
that such riparian or contiguous owners would, independently of the
declarations in § 18, have enjoyed that right, which could
under no contingency have thus been abridged."
"They had clearly, not only the privilege, in common with all
others, to draw the running water from the river for domestic
purposes,
ad lavandum et potendum, but also on principle
that, without the need of a previous permission, of laying pipes
from the river to their premises to draw the water necessary for
their use. The state and her functionaries -- political
corporations -- however have the right, in the exercise
Page 125 U. S. 26
of the police power, of regulating the enjoyment of that right,
denying or permitting it, according as public security and good may
or may not demand."
"If section 18 was designed for any practical object, it could
only have been to secure to the contiguous owners, beyond the
possibility of a doubt, their indisputable rights, subjecting them
however to the control of the municipal authorities, as the
improvident or careless exercise of such rights across the river
bank and through the public street of a populous metropolis might
be attended with great calamitous consequences, inflicting
incalculable wrong and injury."
35 La.Ann. 1111.
A writ of error from this Court was allowed by the Chief Justice
of the Supreme Court of Louisiana upon the plaintiff's petition
representing
"That said plaintiff set up its charter as a contract between it
and said City of New Orleans and the State of Louisiana, and that
the ordinance of said city in favor of said defendant, the
Louisiana Sugar Refining Company, was a violation of said contract,
which was protected by the Constitution of the United States, and
said supreme court in its decree maintained the legality of said
ordinance and decreed it to be no violation of said contract."
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The plaintiff, in its original petition, relied on a charter
from the Legislature of Louisiana which granted to it the exclusive
privilege of supplying the City of New Orleans and its inhabitants
with water from the Mississippi River, but provided that the city
council should not be thereby prevented from granting to any person
"contiguous to the river" the privilege of laying pipes to the
river for his own use. The only matter complained of by the
plaintiff as impairing the obligation of the contract contained in
its charter was an ordinance of the city council granting to the
Louisiana Sugar Refining Company
Page 125 U. S. 27
permission to lay pipes from the river to its factory, which,
the plaintiff contended, was not contiguous to the river.
The Louisiana Sugar Refining Company, in its answer, alleged
that its factory was contiguous to the river; that it had the right
as a riparian proprietor to draw water from the river for its own
use; that its pipes were being laid for its own use only; that the
plaintiff had no exclusive privilege that would impair such use of
the water by the defendant company, and that the rights and
privileges claimed by the plaintiff would constitute a monopoly,
and be therefore null and void.
The evidence showed that the pipes of the defendant company were
being laid exclusively for the use of its factory, and that no
private ownership intervened between it and the river, but only a
public street and a broad quay or levee, owned by the city and open
to the public, except that some large sugar sheds occupied by
lessees of the city stood upon it, and that the tracks of a
railroad were laid across it.
The grounds upon which the Supreme Court of Louisiana gave
judgment for the defendants appear by its opinion, which, under the
practice of that state, is strictly part of the record and has
always been so considered by this Court on writs of error, as well
under the Judiciary Act of 1789, which provided that "no other
error shall be assigned or regarded as a ground of reversal than
such as appears on the face of the record," as under the later
acts, in which that provision is omitted. Acts of September 24,
1789, c. 20, § 25, 1 Stat. 86; February 5, 1867, c. 28, §
2, 14 Stat. 386; Rev.Stat. § 709;
Almonester
v. Kenton, 9 How. 1,
50 U. S. 9;
Grand Gulf Railroad v.
Marshall, 12 How. 165;
Cousin v.
Blanc, 19 How. 202;
Delmas v.
Insurance Co., 14 Wall. 661,
81 U. S. 663,
81 U. S. 667;
Crossley v. New Orleans, 108 U. S. 105;
Crescent City Co. v. Butchers' Union Co., 120 U.
S. 141,
120 U. S.
146.
That opinion, as printed in 35 La.Ann. 1111 and in the record
before us, shows that the grounds of the judgment were that the
right conferred by the legislature of the state upon the Commercial
Bank by its charter in 1833, and confirmed to the plaintiff by its
charter in 1877, was the exclusive privilege
Page 125 U. S. 28
of supplying the city and its inhabitants with water by means of
pipes and conduits through the streets and lands of the city; that
by the general law of Louisiana, independently of anything in those
statutes, riparian or contiguous proprietors had the right of
laying pipes to the river to draw the water necessary for their own
use, subject to the authority of the state and the city, in the
exercise of the police power, to regulate this right as the public
security and the public good might require; that section 18 of the
plaintiff's charter had no other object than to secure beyond the
possibility of doubt this right of the contiguous owners and the
control of the municipal authorities, and that the city was
authorized to permit the defendant company to lay pipes across the
quay and through the streets from the river to its factory for the
purpose of supplying it with water for its own use.
The Constitution of Louisiana of 1879 does provide, in article
258, that
"The monopoly features in the charter of any corporation now
existing in the state, save such as may be contained in the
charters of railroad companies, are hereby abolished."
But the opinion of the supreme court of the state shows that it
thought it unnecessary and "entirely out of place" to consider the
effect of that provision upon the exclusive privilege of the
plaintiff, and it was not suggested either in the petition for the
writ of error or in the assignment of errors or in any of the
briefs filed in this Court that any effect was given by the
judgment of the state court to that provision of the constitution
of the state.
The only grounds on which the plaintiff in error attacks the
judgment of the state court are that the court erred in its
construction of the contract between the state and the plaintiff
contained in the plaintiff's charter and in not adjudging that the
ordinance of the city counsel granting to the defendant company
permission to lay pipes from its factory to the river was void
because it impaired the obligation of that contract.
The arguments at the bar were principally directed to the
question whether, upon the facts proved, the factory of the
defendant company was contiguous to the river. But that is
Page 125 U. S. 29
not a question which this Court upon this record is authorized
to consider.
This being a writ of error to the highest court of a state, a
federal question must have been decided by that court against the
plaintiff in error, else this Court has no jurisdiction to review
the judgment. As was said by Mr. Justice Story fifty years ago,
upon a full review of the earlier decisions,
"It is sufficient if it appears by clear and necessary
intendment that the question must have been raised, and must have
been decided in order to have induced the judgment,"
and
"it is not sufficient to show that a question might have arisen
or been applicable to the case unless it is further shown on the
record that it did arise and was applied by the state court to the
case."
Crowell v.
Randell, 10 Pet. 368,
35 U. S. 398.
The rule so laid down has been often affirmed and constantly acted
on.
Grand Gulf Railroad v.
Marshall, 12 How. 165,
53 U. S. 167;
Bridge Proprietors v. Hoboken
Co., 1 Wall. 116,
42 U. S. 143;
Steines v. Franklin
County, 14 Wall. 15,
81 U. S. 21. In
Klinger v.
Missouri, 13 Wall. 257,
80 U. S. 263,
MR. JUSTICE BRADLEY declared the rule to be well settled that
"Where it appears by the record that the judgment of the state
court might have been based either upon a law which would raise a
question of repugnancy to the Constitution, laws, or treaties of
the United States or upon some other independent ground, and it
appears that the court did, in fact base its judgment on such
independent ground, and not on the law raising the federal
question, this Court will not take jurisdiction of the case even
though it might think the position of the state court an unsound
one."
And in many recent cases under § 709 of the Revised
Statutes, this Court, speaking by THE CHIEF JUSTICE, has reasserted
the rule that to give it jurisdiction of a writ of error to a state
court, it must appear affirmatively not only that a federal
question was presented for decision to the highest court of the
state having jurisdiction, but that
"its decision was necessary to the determination of the cause,
and that is was actually decided, or that the judgment as rendered
could not have been given without deciding it."
Brown v. Atwell, 92 U. S. 327;
Citizens' Bank v. Board of Liquidation, 98 U. S.
140;
Chouteau v.
Gibson,
Page 125 U. S. 30
111 U. S. 200;
Adams County v. Burlington & Missouri Railroad,
112 U. S. 123;
Detroit Railway v. Guthard, 114 U.
S. 133. In order to come within the provision of the
Constitution of the United States which declares that no state
shall pass any law impairing the obligation of contracts, not only
must the obligation of a contract have been impaired, but it must
have been impaired by a law of the state. The prohibition is aimed
at the legislative power of the state, and not at the decisions of
its courts, or the acts of administrative or executive boards or
officers, or the doings of corporations or individuals. This Court
therefore has no jurisdiction to review a judgment of the highest
court of a state, on the ground that the obligation of a contract
has been impaired, unless some legislative act of the state has
been upheld by the judgment sought to be reviewed. The general rule
as applied to this class of cases has been clearly stated in two
opinions of this Court delivered by MR. JUSTICE MILLER:
"It must be the constitution or some law of the state which
impairs the obligation of the contract or which is otherwise in
conflict with the Constitution of the United States, and the
decision of the state court must sustain the law or constitution of
the state in the matter in which the conflict is supposed to exist,
or the case for this Court does not arise."
Railroad Co. v.
Rock, 4 Wall. 177,
71 U. S.
181.
"We are not authorized by the Judiciary Act to review the
judgments of the state courts because their judgments refuse to
give effect to valid contracts, or because those judgments in their
effect impair the obligation of contracts. If we did, every case
decided in a state court could be brought here where the party
setting up a contract alleged that the court had taken a different
view of its obligation to that which he held."
Knox v. Exchange
Bank, 12 Wall. 379,
79 U. S.
383.
As later decisions have shown, it is not strictly and literally
true that a law of a state, in order to come within the
constitutional prohibition, must be either in the form of a statute
enacted by the legislature in the ordinary course of legislation or
in the form of a constitution established by the people of the
state as their fundamental law.
Page 125 U. S. 31
In
Williams v. Bruffy, 96 U. S.
176,
96 U. S. 183,
it was said by MR. JUSTICE FIELD, delivering judgment:
"Any enactment, from whatever source originating, to which a
state gives the force of law is a statute of the state within the
meaning of the clause cited relating to the jurisdiction of this
Court,"
Rev.Stat. § 709, and it was therefore held that a statute
of the so-called Confederate states, if enforced by one of the
states as its law, was within the prohibition of the
Constitution.
So a by-law or ordinance of a municipal corporation may be such
an exercise of legislative power delegated by the legislature to
the corporation as a political subdivision of the state, having all
the force of law within the limits of the municipality, that it may
properly be considered as a law within the meaning of this article
of the Constitution of the United States.
For instance, the power of determining what persons and property
shall be taxed belongs exclusively to the legislative branch of the
government, and, whether exercised by the legislature itself or
delegated by it to a municipal corporation, is strictly a
legislative power.
United States v. New Orleans,
98 U. S. 381,
98 U. S. 392;
Meriwether v. Garrett, 102 U. S. 472.
Accordingly, where the City Council of Charleston, upon which the
Legislature of South Carolina, by the city charter, had conferred
the power of taxing persons and property within the city, passed
ordinances assessing a tax upon bonds of the city, and thus
diminishing the amount of interest which it had agreed to pay, this
Court held such ordinances to be laws impairing the obligation of
contracts for the reason that the city charter gave limited
legislative power to the city council, and, when the ordinances
were passed under the supposed authority of the legislative act,
their provisions became the law of the state.
Murray v.
Charleston, 96 U. S. 432,
96 U. S. 440.
See also Ins. Co. v. City Council of Augusta, 93 U. S.
116.
But the ordinance now in question involved no exercise of
legislative power. The legislature, in the charter granted to the
plaintiff, provided that nothing therein should
"be so construed as to prevent the city council from granting to
any person or persons contiguous to the river the privilege of
laying
Page 125 U. S. 32
pipes to the river exclusively for his or their own use."
The legislature itself thus defined the class of persons to
whom, and the object for which, the permission might be granted.
All that was left to the city council was the duty of determining
what persons came within the definition and how and where they
might be permitted to lay pipes for the purpose of securing their
several rights to draw water from the river without unreasonably
interfering with the convenient use by the public of the lands and
highways of the city. The rule was established by the legislature,
and its execution only committed to the municipal authorities. The
power conferred upon the city council was not legislative, but
administrative, and might equally well have been vested by law in
the mayor alone, or in any other officer of the city.
Railroad
Co. v. Ellerman, 105 U. S. 166,
105 U. S. 172;
Day v. Green, 4 Cush. 433, 438. The permission granted by
the city council to the defendant company, though put in the form
of an ordinance, was in effect but a license, and not a bylaw of
the city -- still less a law of the state. If that license was
within the authority vested in the city council by the law of
Louisiana, it was valid; if it transcended that authority, it was
illegal and void. But the question whether it was lawful or
unlawful depended wholly on the law of the state, and not at all on
any provision of the Constitution or laws of the United States.
The cases of
New Orleans Waterworks v. Rivers,
115 U. S. 674, and
St. Tammany Waterworks v. New Orleans Waterworks,
120 U. S. 64, on
which the plaintiff relied in support of its bill, were essentially
different from the case at bar. In each of those cases, the
validity of the article of the Constitution of 1879 abolishing
monopolies was drawn in question by the bill and relied on by the
defendants. Rivers did not contend that his property was contiguous
to the river. The St. Tammany Waterworks Company had been
incorporated since the New Orleans Waterworks Company, under a
general statute of the state, for the purpose of supplying the
whole city and its inhabitants with water. And both those cases
were appeals from the circuit court of the United States, upon
which this Court was not restricted to the consideration
Page 125 U. S. 33
of federal questions decided below, but had jurisdiction to
determine the whole case.
The difference in the extent of the jurisdiction of this Court
on writ of error to the highest court of a state and on appeal from
a circuit court of the United States, as affected by the ground of
the decision of the court below, is illustrated by the cases of
contracts payable in Confederate currency, or made in consideration
of loans of Confederate currency, during the war of the rebellion,
and by the cases of promissory notes given before that war for the
price of persons sold as slaves.
In
Thorington v.
Smith, 8 Wall. 1, this Court, reversing a judgment
of the Circuit Court of the United States in Alabama, held that a
contract for the payment of money in Confederate currency was not
unlawful. Like decisions have often been made in later cases
brought here from the circuit courts of the United States.
Planter's Bank v. Union
Bank, 16 Wall. 483,
83 U. S. 497;
Confederate Note
Case, 19 Wall. 548;
Wilmington & Weldon
Railroad v. King, 91 U. S. 3;
Cook
v. Lillo, 103 U. S. 792. Yet
in
Bethell v.
Demaret, 10 Wall. 537, where a suit on a mortgage
to secure the payment of promissory notes given for a loan of
Confederate currency had been dismissed by the Supreme Court of
Louisiana on the ground that the notes and mortgage were nullities
because the Confederate currency, which constituted the
consideration, was illegal by the general law of the state, this
Court dismissed the writ of error because no statute of the state
was drawn in question. And in
Bank of West Tennessee v.
Citizens' Bank of Louisiana, 13 Wall. 432,
81 U. S. 14 Wall. 9,
where the Supreme Court of Louisiana, affirming a judgment rendered
by an inferior court of the state before the adoption of article
127 of the state constitution of 1868, by which "all agreements,
the consideration of which was Confederate money, notes, or bonds,
are null and void, and shall not be enforced by the courts of this
state," dismissed a suit to recover money payable in Confederate
notes, basing its judgment both upon that article of the
Constitution and upon adjudications in that state before its
adoption, this Court, speaking by Mr. Justice Swayne, dismissed
Page 125 U. S. 34
a writ of error and said:
"The result in this case would have been necessarily the same if
the Constitution had not contained the provision in question. This
brings the case within the authority of
Bethell v.
Demaret,"
above cited. In another case at the same term, the disposition
by this Court of the case of
Bank of West Tennessee v.
Citizens' Bank of Louisiana was thus explained by MR. JUSTICE
MILLER:
"As it was apparent from the record that the judgment of the
court of original jurisdiction was rendered before that article was
adopted, we could not entertain jurisdiction when the decision in
that particular point was placed on a ground which existed as a
fact and was beyond our control, and was sufficient to support the
judgment, because another reason was given which, if it had been
the only one, we could review and might reverse."
Delmas v. Insurance
Co., 14 Wall. 661,
81 U. S. 666.
In
Delmas v. Insurance Co., just cited, where the judgment
of the Louisiana court was put wholly upon that article of the
Constitution, this Court therefore took jurisdiction, and reversed
the judgment, but said that where a decision of the highest court
of a state,
"whether holding such contract valid or void, is made upon the
general principles by which courts determine whether a
consideration is good or bad on principles of public policy, the
decision is one we are not authorized to review."
And in
Tarver v.
Keach, 15 Wall. 67, as well as in
Dugger v.
Bocock, 104 U. S. 596,
104 U. S. 601,
the proposition thus stated was affirmed and was acted on by
dismissing a writ of error to a state court. So in
Stevenson
v. Williams, 19 Wall. 572, where a judgment of the
Supreme Court of Louisiana annulling a judgment of a lower court on
the ground that the promissory notes on which it was rendered had
been given for a loan of Confederate money was brought here by writ
of error, this Court, speaking by MR. JUSTICE FIELD, after
disposing of a distinct federal question and observing that the
aforesaid ground would not be deemed in a federal court sufficient
to set aside the judgment, said:
"But the ruling of the state court in these particulars, however
erroneous, is not subject to review by us. It presents no federal
question for our examination. It conflicts with no part of the
Constitution, laws, or treaties of the United States.
Page 125 U. S. 35
Had the state court refused to uphold the judgment because of
the provision in the constitution of the state, subsequently
adopted, prohibiting the enforcement of contracts founded upon
Confederate money, a federal question would have been presented.
That provision, however, does not appear to have caused the
ruling."
19 Wall.
86 U. S.
576-577. Those cases clearly establish that on a writ of
error to a state court, this Court had jurisdiction to review and
reverse the judgment if that judgment was based wholly upon the
state constitution; but that if it was based on the previous law of
the state, this Court had no jurisdiction to review it although the
view taken by the state court was adverse to the view taken by this
Court in earlier and later cases coming up from a circuit court of
the United States.
In actions brought upon promissory notes given for the purchase
of slaves before the war, the same distinction has been maintained.
The constitutions adopted in 1868 by the States of Arkansas,
Georgia, and Louisiana, respectively, provided that the courts of
the state should not enforce any contract for the purchase or sale
of slaves. In
Osborn v.
Nicholson, 13 Wall. 654, a judgment rendered for
the defendant by the Circuit Court of the United States for the
District of Arkansas, in an action on a promissory note for the
purchase of a slave, was reversed because this Court was of opinion
that the contract was valid at the time when it was made, and
therefore its obligation was impaired by the subsequent
Constitution. For like reasons, this Court, in
White v.
Hart, 13 Wall. 646, reversed a similar judgment
rendered by the Supreme Court of the State of Georgia, and based
upon the provision of its Constitution. But in
Palmer v.
Marston, 14 Wall. 10, where the Supreme Court of
Louisiana in a similar action had placed its judgment for the
defendant upon the law of the state, as established and acted upon
before the adoption of the Constitution of 1868 and since adhered
to, and had declined to pass upon the question whether the
provision of that Constitution was valid or invalid as an act of
legislation and in relation to the article of the Constitution of
the United States against impairing the obligation of
contracts,
Page 125 U. S. 36
because it was unnecessary and could have no practical influence
upon the result, this Court dismissed a writ of error, for want of
jurisdiction, saying:
"It thus appears that the provision of the state constitution
upon the subject of slave contracts was in nowise drawn in
question. The decision was governed by the settled principles of
the jurisprudence of the state. In such cases, this Court has no
power of review. . . . Substantially the same question arose in
Bank of West Tennessee v. Citizens' Bank of Louisiana,
heretofore decided. The writ of error was dismissed for want of
jurisdiction. The same disposition must be made in this case."
These cases are quite in harmony with the line of cases,
beginning before these were decided, in which, on a writ of error
upon a judgment of the highest court of a state giving effect to a
statute of the state, drawn in question as affecting the obligation
of a previous contract, this Court, exercising its paramount
authority of determining whether the statute upheld by the state
court did impair the obligation of the previous contract, is not
concluded by the opinion of the state court as to the validity or
the construction of that contract, even if contained in a statute
of the state, but determines for itself what that contract was.
Leading cases of that class are
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116, in which
the state court affirmed the validity of a statute authorizing a
railway viaduct to be built across a river, which was drawn in
question as impairing the obligation of a contract, previously made
by the state with the proprietors of a bridge that no other bridge
should be built across the river, and cases in which the state
court affirmed the validity of a statute imposing taxes upon a
corporation, and drawn in question as impairing the obligation of a
contract in a previous statute exempting it from such taxation.
State Bank v.
Knoop, 16 How. 369;
Ohio Life
Ins. & Trust Co. v. Debolt, 16 How. 416;
Bank v.
Debolt, 18 How. 380;
Jefferson
Branch Bank v. Skelly, 1 Black 436;
New Jersey
v. Yard, 95 U. S. 104;
Railroad v. Gaines, 97 U. S. 697,
97 U. S. 709;
University v. People, 99 U. S. 309;
Railroad v.
Palmes,
Page 125 U. S. 37
109 U. S. 244;
Memphis Gas Co. v. Shelby County, 109 U.
S. 398;
Vicksburg &c. Railroad v. Dennis,
116 U. S. 665. In
each of those cases, the state court upheld a right claimed under
the later statute, and could not have made the decision that it did
without upholding that right, and thus gave effect to the law of
the state drawn in question as impairing the obligation of a
contract.
The distinction between the two classes of cases -- those in
which the state court has, and those in which it has not, given
effect to the statute drawn in question as impairing the obligation
of a contract -- as affecting the consideration by this Court on
writ of error of the true construction and effect of the previous
contract, is clearly brought out in
Kennebec
Railroad v. Portland Railroad, 14 Wall. 23. That
was a writ of error to the Supreme Judicial Court of Maine in which
a foreclosure, under a statute of 1857, of a railroad mortgage made
in 1852 was contested upon the ground that it impaired the
obligation of the contract, and the parties agreed that the opinion
of that court should be considered as part of the record. MR.
JUSTICE MILLER, in delivering judgment, after stating that it did
appear that the question whether the statute of 1857 impaired the
obligation of the mortgage contract "was discussed in the opinion
of the court, and that the court was of the opinion that the
statute did not impair the obligation of the contract," said:
"If this were all of the case, we should undoubtedly be bound in
this Court to inquire whether the act of 1857 did, as construed by
that court, impair the obligation of the contract.
Bridge Proprietors v.
Hoboken Co., 1 Wall. 116. But a full examination of
the opinion of the Court shows that its judgment was based upon the
ground that the foreclosure was valid, without reference to the
statute of 1857, because the method pursued was in strict
conformity to the mode of foreclosure authorized, when the contract
was made by the laws then in existence. Now if the state court was
right in their view of the law as it stood when the contract was
made, it is obvious that the mere fact that a new law was made does
not impair the obligation of the contract. And it is also clear
that we cannot inquire whether the Supreme Court of Maine
Page 125 U. S. 38
was right in that opinion. Here is therefore a clear case of a
sufficient ground on which the validity of the decree of the state
court could rest, even if it had been in error as to the effect of
the act of 1857 in impairing the obligation of the contract. And
when there is such distinct and sufficient ground for the support
of the judgment of the state court, we cannot take jurisdiction,
because we could not reverse the case, though the federal question
was decided erroneously in the court below against the plaintiff in
error.
Rector v. Ashley, 6 Wall.
142;
Klinger v. Missouri, 13
Wall. 257;
Steines v. Franklin County,
14 Wall. 15. The writ of error must therefore be dismissed for want
of jurisdiction."
14 Wall.
81 U. S.
25-26.
The result of the authorities, applying to cases of contracts
the settled rules that in order to give this Court jurisdiction of
a writ of error to a state court, a federal question must have
been, expressly or in effect, decided by that court, and therefore
that when the record shows that a federal question and another
question were presented to that court and its decision turned on
the other question only, this Court has no jurisdiction, may be
summed up as follows: when the state court decides against a right
claimed under a contract, and there was no law subsequent to the
contract, this Court clearly has no jurisdiction. When the
existence and the construction of a contract are undisputed, and
the state court upholds a subsequent law on the ground that it did
not impair the obligation of the admitted contract, it is equally
clear that this Court has jurisdiction. When the state court holds
that there was a contract conferring certain rights and that a
subsequent law did not impair those rights, this Court has
jurisdiction to consider the true construction of the supposed
contract, and if it is of opinion that it did not confer the rights
affirmed by the state court, and therefore its obligation was not
impaired by the subsequent law, may on that ground affirm the
judgment. So when the state court upholds the subsequent law on the
ground that the contract did not confer the right claimed, this
Court may inquire whether the supposed contract did give the right,
because if it did, the subsequent law cannot be upheld. But when
the state court gives no
Page 125 U. S. 39
effect to the subsequent law, but decides on grounds independent
of that law that the right claimed was not conferred by the
contract, the case stands just as if the subsequent law had not
been passed, and this Court has no jurisdiction.
In the present case, the Supreme Court of Louisiana did not, and
the plaintiff in error does not pretend that it did, give any
effect to the provision of the Constitution of 1879 abolishing
monopolies. Its judgment was based wholly upon the general law of
the state and upon the construction and effect of the charter from
the legislature to the plaintiff company, and of the license from
the city council to the defendant company, and in no degree upon
the Constitution or any law of the state subsequent to the
plaintiff's charter. The case cannot be distinguished in principle
from the cases above cited in which writs of error to state courts
have been dismissed for want of jurisdiction. As was said in
Bank of West Tennessee v. Citizens' Bank of Louisiana,
above cited, "the result in this case would have been necessarily
the same if the Constitution had not contained the provision in
question."
Writ of error dismissed for want of jurisdiction.
