In the absence of parties interested, and without their having
an opportunity to be heard, a court is without jurisdiction to make
an adjudication affecting them.
A court of equity cannot properly interfere with, or in advance
restrain the discretion of, a municipal body while it is in the
exercise of powers that are legislative in their character.
Legislatures may delegate to municipal assemblies the power of
enacting ordinances relating to local matters, and such ordinances,
when legally enacted, have the force of legislative acts.
Page 164 U. S. 472
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This suit was determined in the court below upon demurrer to the
bill. The question presented is whether the bill set forth a cause
of action entitling the appellant, who was the plaintiff below, to
the relief asked.
The case made by the bill is substantially as follows: by the
fifth section of the Act of the General Assembly of Louisiana
commonly known as "Act No. 33, Extra Session of 1877," it was
provided that the New Orleans Waterworks Company, in its corporate
capacity, should own and possess the privileges acquired by the
City of New Orleans from the Commercial Bank; that it should have,
for fifty years from the passage of the act, the exclusive
privilege of supplying the City of New Orleans and its inhabitants
with water 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; that
it might contract for, purchase, or lease any land or lots of
ground, or the right to pass over and enter the same from time to
time, as occasion required, through which it might be necessary to
convey the water into said city or to distribute the same to the
inhabitants of said city, and construct, dig, or cause to be opened
any canals or trenches whatsoever for the conducting of the water
of the rivers from any place or places it deemed fit, and raise and
construct such dykes, mounds, reservoirs as might be required for
securing and carrying a fully supply of pure water to the city and
its inhabitants; enter upon and survey such lands as it might think
proper, in order to ascertain
Page 164 U. S. 473
the best mode of furnishing a supply of water, and lay and place
any number of conduits or pipes or aqueducts, and cleanse and
repair the same, through or over any of the lands or streets of the
city, provided the same should not be an obstruction to commerce or
free circulation.
The eighteenth section of the same act provided:
"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."
While the New Orleans Waterworks Company was proceeding under
the above legislative enactment constituting its charter, the
Louisiana Constitution of 1879 was adopted. By article 258 of that
Constitution, it was provided:
"All rights, actions, prosecutions, claims and contracts, as
well of individuals as of bodies corporate, and all laws in force
at the time of the adoption of this constitution and not
inconsistent therewith shall continue as if the said constitution
had not been adopted. But 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
repealed."
After this constitutional provision took effect, the City
Council of New Orleans passed, November 15, 1882, an ordinance
allowing Robert E. Rivers, the lessee of the St. Charles Hotel in
New Orleans,
"the right of way and privilege to lay a water pipe from the
Mississippi River at any point opposite the head of Common or
Gravier Streets, through either of these streets to said hotel, its
front and side streets, with all needed attachments and
appurtenances, and to distribute said water through said hotel as
said Rivers, or lessee, may desire from said pipes,"
etc.
Rivers being about to take the benefit of this ordinance, the
waterworks company commenced suit against him in the Circuit Court
of the United States for the Eastern District of Louisiana in which
it sought a decree perpetually restraining him from laying pipes,
conduits, or mains in the public streets of New Orleans for the
purpose of conveying water from the Mississippi River to his hotel.
The company proceeded in
Page 164 U. S. 474
that suit upon the ground that it had a valid contract with the
state and city for an exclusive right for the full term of fifty
years from March 31, 1877, of supplying the City of New Orleans and
its inhabitants, other than those contiguous to the Mississippi
River, with water from that stream by means of pipes and conduits
placed in the streets of that city, and that the obligation of that
contract was protected by the Constitution of the United States
against impairment by any act of the state. Rivers claimed the
right to proceed with the construction of pipes, mains, and
conduits under the authority of the ordinance above referred to,
which rested for its validity, as he claimed, upon the Constitution
and laws of Louisiana.
The bill filed by the waterworks company against Rivers was
dismissed in the circuit court, and upon appeal to this Court, the
judgment of dismissal was reversed with the direction to enter a
decree perpetually restraining Rivers, as prayed for in the bill
filed by the waterworks company. The opinion in
New Orleans
Waterworks Co. v. Rivers, 115 U. S. 674,
states fully the grounds upon which this Court proceeded.
In 1882, the St. Tammany Waterworks Company was organized under
the general laws of Louisiana for the purpose of furnishing and
supplying the inhabitants of the City of New Orleans and other
localities contiguous to the line of its works with an ample supply
of clear and wholesome water from such rivers, streams, and other
fountain sources as might be found most available for such purpose
by means of pipes and conduits. The company being about to take
steps to obtain authority for bringing into New Orleans the waters
of the Bogue Falaya River, in the Parish of St. Tammany, and
distributing the same by means of pipes, mains, and conduits placed
in the streets of the city parallel with those constructed by the
New Orleans Waterworks Company, the latter corporation instituted,
in the Circuit Court of the United States for the Eastern District
of Louisiana, a suit for an injunction to restrain the other
company from carrying out its scheme. On appeal from the decree of
the circuit court granting the
Page 164 U. S. 475
injunction, this Court reaffirmed the principles announced in
the
Rivers case, saying:
"As the exclusive right of the appellee to supply the City of
New Orleans and its inhabitants with water was not restricted to
water drawn from the Mississippi River, but embraced water from any
other stream, it is impossible to distinguish this case in
principle from that of
Waterworks Co. v. Rivers. Upon the
authority of the latter case, it must be held that the carrying out
by the appellant of its scheme for a system of waterworks in New
Orleans would be in violation of the rights of the appellee, and
that the state constitution of 1879, so far as it assumes to
withdraw the exclusive privileges granted to the appellee, is
inconsistent with the clause of the national Constitution
forbidding a state from passing any law impairing the obligation of
contracts."
St. Tammany Waterworks Co. v. New Orleans Waterworks,
120 U. S. 64,
120 U. S.
67.
The present suit was brought February 8, 1894, by the New
Orleans Waterworks Company against the City of New Orleans. The
bill sets out the foregoing facts and gives the history of the two
cases to which reference has been made.
It further alleged that after the above adjudications, the
defendant continued to make and promulgate ordinances conferring
upon individuals and corporations the right to lay pipes and mains
through the streets and public ways of New Orleans to premises not
contiguous to the rivers and waters with which said pipes and mains
connected, from which the water supply is drawn and consumed within
the City of New Orleans, such premises not being included in the
proviso in the plaintiff's charter relating to the owners of
property contiguous to said waters; that the defendant has
continued to pass and promulgate such ordinances, and threatens to
continue to do so in the future; that the ordinances set forth by
copy, and contained in Exhibit C2, filed with and made a part of
the bill, had been adopted and promulgated by the defendant in open
defiance and disregard of the plaintiff's rights; that the
plaintiff is advised and believes that the said ordinances set
forth in said Exhibit C constitute but a portion of those of like
character adopted and promulgated by the defendant;
Page 164 U. S. 476
that in nearly all instances where said ordinances have been
adopted and promulgated, the parties named as the beneficiaries or
grantees therein have availed themselves of the said act of the
city to lay pipes and mains through the streets and public ways of
the city, and established pumping machinery to draw water through
said mains for a water supply; that in the instances where they
have not already availed themselves of this supposed warrant to
establish waterworks of their own, they are intending to so
establish pipes and mains, and will do so unless restrained
therefrom by the courts, and that none of the premises referred to
in said ordinances is contiguous to the Mississippi River or within
the proviso contained in the plaintiff's charter and contract with
the state relating to or affecting the owners of property
contiguous to the river.
The bill also alleged that most of the persons and corporations
named as grantees in said ordinances are large consumers of water,
and, but for said wrongful act of the city, would be customers of
and consumers of the water provided as public water supply by the
plaintiff; that the plaintiff has pipes and mains so located that
it could supply all of said premises with water and should receive
recompense and profit thereby; that its franchises, and the income
that should accrue to it from public water supply, have been
lessened and its revenues diminished by a sum exceeding $30,000 in
the past, and that such loss of income and revenue is continuing,
and, if continued during the lifetime or corporate existence of the
plaintiff, would amount to many thousand dollars more; that many of
the said ordinances of the City of New Orleans complained of
contain on the face thereof a condition that said license or grant
of the right to lay pipes and mains and pump water from the river
shall continue only during the will of the defendant; than in the
cases where that provision is not contained in the text of the
ordinances, the city has full and complete power to revoke and
recall such fraudulent and wrongful grants and permissions at its
will, and thereby cease to countenance said wrongdoers or furnish
them with any colorable right to continue and maintain said pipes
and mains
Page 164 U. S. 477
so wrongfully established, and in good conscience should recall,
revoke, and expunge all of said pretended ordinances and
regulations of its own motion, without compulsion; that, by reason
of the said wrongful acts of the defendant and the large number of
grants and privileges made by the city, it is practically
impossible for the plaintiff to obtain full and adequate relief
through proceedings instituted against the said several persons and
corporations receiving said supposed grants and authority to
establish pipes and pumping machinery for the purpose of drawing
water from the Mississippi River by reason of the great delays and
the enormous expense of litigating with so many several defendants,
and the multiplicity of suits and actions necessary to restrain
said wrongful acts by proceeding against the several supposed
grantees.
It was further alleged that the defendant and other persons
proposing to assail the plaintiff's rights contend that there is
ambiguity and uncertainty in the eighteenth section of plaintiff's
charter; that at the time of the acceptance of its charter and
grant, the plaintiff was advised, and, it believes, correctly, that
said section 18 could only lawfully be construed as conferring upon
the city the right to grant to privilege of laying pipes to such
person or persons or corporations as may at the time of such grant,
be the owner of or in the lawful possession of real estate or
property extending down to the riverfront and touching the said
river and having riparian rights on the banks of said river,
subject only to such public servitude or right of way as may be
impressed upon said property by the operation of the general
statutes of Louisiana bearing upon servitudes attaching to public
waters, relating to the right of the public to moor and unload
vessels at such banks, and a right of way for travel or public
roads on or along the banks of such waters, and the servitude or
right the public may have to occupy the banks of rivers, and to
establish levees or embankments to prevent overflow, where such
public waters are subject or liable to overflow from any cause;
that the defendant and others allege and insist that such
construction does not express the intent of the legislature of the
state in granting said franchises, and insist upon a construction
and range
Page 164 U. S. 478
for section 18 which, if correct, would destroy the plaintiff's
rights and privileges conferred under and by its charter insofar as
the same relate to the territory and limit within which the
plaintiff has the exclusive right to furnish public water supply
through pipes and mains; that this alleged ambiguity has given rise
to serious contention, has already caused, and if continued will in
the future cause, the plaintiff much contention, litigation,
expense, loss, and damage; that it is important that the true,
actual, and proper construction of said section 18, and the proviso
therein contained, should be judicially ascertained and decreed;
that the court should adjudge, decree, and declare, as between the
plaintiff and the defendant, the true and actual meaning and
construction of said section and proviso in order that all future
disputes and contentions in relation thereto may be at an end and
the plaintiff have knowledge of its actual rights in the premises;
that the plaintiff is remediless in a court of law, and therefore
applies and appeals to the court sitting in equity, having peculiar
and full power and jurisdiction in the premises by virtue of the
Constitution and laws of the United States, and that all of said
actings and doings of the defendant are contrary to equity and good
conscience, and tend to the manifest wrong, injury, and oppression
of the plaintiff.
The relief sought by the bill is a decree determining to what
class the property, ownership, or possession of the property
specified contained in that section 18 applies and establishing and
defining the limit beyond which the defendant has no power under
said state legislation to authorize any person or corporation to
invade the plaintiff's exclusive rights by laying pipes and drawing
water from the Mississippi River or other public waters; that it be
also adjudged and decreed that the rights conferred upon the
plaintiff are those declared in
New Orleans Waterworks Company
v. Robert E. Rivers and in the case of
New Orleans
Waterworks Company v. St. Tammany Waterworks Company, that the
plaintiff is lawfully entitled to have for and during the period
named in said act of incorporation all of the exclusive rights and
privileges named and set forth therein; that all the said acts,
resolutions,
Page 164 U. S. 479
and grants sought to be made by the defendant to persons or
corporations, not being possessors or owners of property not
touching the banks of the Mississippi River within the Parish of
Orleans, are null, void, and of no effect; that defendant be
ordered, adjudged, and decreed, within a time certain to be named
in the decree, to recall, expunge, repeal, and cancel each and all
of said alleged ordinances, resolutions, grants, or licenses so
made by it since the date the plaintiff became invested with said
exclusive rights, save only such grants, permits, ordinances, or
resolutions as relate to or are confined to property and premises
contiguous to the Mississippi River, and that in the event
defendant shall neglect or refuse in some public way to declare the
same recalled, cancelled, annulled, and avoided within a time
specified in such decree, the court will declare, adjudge, and
decree the same, and each and all of them, to be absolutely null
and void, and of no effect, and as conferring no rights or
authority whatsoever, nor lawful reason for the invasion of the
plaintiff's said exclusive rights.
The plaintiff asked that a writ of injunction be issued
inhibiting and forbidding the City of New Orleans, its council,
officers, agents, or departments from granting or allowing to any
person, persons, or corporation any further or other like grants,
licenses, privileges, or warrants in any form on the face thereof
assuming to grant unto any person, persons, or corporation any
right or privilege to lay or maintain any pipes, mains, or conduits
from the Mississippi River across, along, or through any public
place or territory within the limits of New Orleans where said
premises are not contiguous to the Mississippi River; also, that it
be adjudged and decreed that insofar as the matters were in issue
and litigated in said cause of the said New Orleans Waterworks
company against the St. Tammany Waterworks Company, the judgment
and decree therein determined the rights of the plaintiff as
between it and the City of New Orleans beyond further contention
and dispute, and that the defendant "be compelled to abide by,
observe, and enforce the same," and that such decree be carried
into full force and effect by such proper order, judgment,
Page 164 U. S. 480
or decree therein as might be necessary to accomplish that end,
and compel obedience to its provisions.
The circuit court sustained a demurrer to the bill, and
dismissed the suit, with costs to the city.
It appears from the bill of complaint -- the facts therein set
forth being admitted by demurrer -- that the City of New Orleans
has by ordinances granted to a large number of corporations,
associations, and individuals the privilege of laying pipes in its
streets for the purpose of conveying water to their respective
premises from the Mississippi. These ordinances, the plaintiff
contends, are in derogation of its rights and privileges as
heretofore declared and adjudged by this Court in the
Rivers and
St. Tammany cases. None of the parties
for whose benefit the ordinances above referred to were passed was
brought before the court or given an opportunity to be heard.
Nevertheless the plaintiff seeks a decree not only declaring those
ordinances to be null and void, but requiring the city, within a
named time, to recall, expunge, repeal, and cancel each ordinance
that does not relate to premises contiguous to the Mississippi
River, and if the city does not, within such time, and in some
public way, cancel and annul those ordinances, then that the court
in this suit shall adjudge and decree them to be null and void, as
illegally interfering with the rights of the plaintiff.
We do not suppose that any precedent can be found that would
justify a court of equity in giving such relief. A decree declaring
the ordinances in question void would have no effect in law upon
the rights of the beneficiaries named in the ordinances, for, in
the absence of the parties interested and without their having an
opportunity to be heard, the court would be without jurisdiction to
make an adjudication affecting them. Such a decree would appear,
upon the very face of the record, not to be due process of law, and
could be treated everywhere as a nullity.
Windsor v.
McVeigh, 93 U. S. 274,
93 U. S. 277;
Pennoyer v. Neff, 95 U. S. 714,
95 U. S. 733;
Scott v. McNeal, 154 U. S. 34,
154 U. S.
46.
Ought the court to have proceeded to a decree, or held the bill
to be sufficient for relief, as between the plaintiff and the
Page 164 U. S. 481
city? In effect, a decree is asked against the city reasserting,
for its guidance in the future, the principles announced in the
Rivers and
St. Tammany cases and informing it
that, in passing the ordinances complained of, it had done violence
to those principles. But of what avail would such a decree be if
the city council, the members of which are not before the court,
were left free to enact ordinances granting to other parties, in
violation of the plaintiff's rights, the privilege of placing pipes
in the streets of the city through which to convey water from the
Mississippi River to their respective premises? If it be said that
a final decree against the city, enjoining it from making such
grants in the future will control the future action of the City
Council of New Orleans, and will therefore tend to protect the
plaintiff in its rights, our answer is that a court of equity
cannot properly interfere with, or in advance restrain, the
discretion of a municipal body while it is in the exercise of
powers that are legislative in their character. It ought not to
attempt to do indirectly what it could not do directly. In view of
the adjudged cases, it cannot be doubted that the legislature may
delegate to municipal assemblies the power of enacting ordinances
that relate to local matters, and that such ordinances, if legally
enacted, have the force of laws passed by the legislature of the
state, and are to be respected by all. But the courts will pass the
line that separates judicial from legislative authority if by any
order or in any mode they assume to control the discretion with
which municipal assemblies are invested when deliberating upon the
adoption or rejection of ordinances proposed for their adoption.
The passage of ordinances by such bodies are legislative acts which
a court of equity will not enjoin.
Chicago v. Evans, 24
Ill. 52, 57;
Des Moines Gas Co. v. Des Moines, 44 Ia. 504;
1 Dillon on Mun.Corp. § 308, and notes; 2 High on Injunctions
§ 1246. If an ordinance be passed and is invalid, the
jurisdiction of the courts may then be invoked for the protection
of private rights that may be violated by its enforcement.
Page's Case, 34 Md. 558, 564;
Baltimore v.
Radecke, 49 Md. 217, 231.
As no decree can be properly rendered that will affect the
Page 164 U. S. 482
rights of the beneficiaries named in the ordinances enacted
before this suit was commenced, such beneficiaries not being before
the court, a court of equity ought not, by any form of proceeding,
to interfere with the course of proceedings in the City Council of
New Orleans and enjoin that branch of its municipal government from
hereafter passing ordinances similar to those heretofore enacted
and which are alleged to be obnoxious to the plaintiff's rights.
The mischievous consequences that may result from the attempt of
courts of equity to control the proceedings of municipal bodies
when engaged in the consideration of matters entirely legislative
in their character are too apparent to permit such judicial action
as this suit contemplates. We repeat that when the city council
shall pass an ordinance that infringes the rights of the plaintiff
and is unconstitutional and void as impairing the obligation of its
contract with the state, it will be time enough for equity to
interfere and by injunction prevent the execution of such
ordinance. If the ordinances already passed are in derogation of
the plaintiff's contract rights, their enforcement can be prevented
by appropriate proceedings instituted directly against the parties
who seek to have the benefit of them. This may involve the
plaintiff in a multiplicity of actions. But that circumstance
cannot justify any such decree as it asks.
Upon the grounds we have indicated, and without considering the
merits of the case, the decree below must be
Affirmed.