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Argument for Defendants in Error.

porations whose roads are already built, as well as to those thereafter constructed. I. C. Ry. Co. v. Wollenberg, 117 Illinois, 203; C. & N. W. Ry. Co. v. Chicago, 140 Illinois, 309; People v. C. & A. R. R. Co., 67 Illinois, 118.

Railroad corporations being the recipients of special privileges from the State, to be exercised in the interest of the public, and assuming the obligation to transport all persons and merchandise upon like conditions and at reasonable rates, their business is deemed affected with a public use, and to the extent of that use is subject to legislative regulations.

Requiring that the burden of a service deemed essential to the public, in consequence of the existence of the railroad corporations, and the exercise of privileges obtained at their request, should be borne by the corporations in relation to whom the service is rendered, and to whom it is useful, is neither denying to them the equal protection of the laws nor making any unjust discrimination against them, all railroad corporations in the State being treated alike in this respect. Charlotte, Columbia & Augusta R. R. Co. v. Gibbes, 142 U. S. 386. Railroads are public highways, and in their relations as such to the public are subject to legislative supervision and the police power of the State. C. & N. W. R. R. Co. v. Chicago, supra.

The inhibition of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process or of the equal protection of the laws by the States, are not violated by the legitimate exercise of legislative power in securing the public safety, health and morals.

There is no unjust discrimination and no denial of the equal protection of the laws in regulations applicable to all railroad corporations alike; nor is there necessarily such denial, nor an infringement of the obligations of contracts in the imposition upon them in particular instances of the entire expense of the performance of acts required in the public interest.

The adjudication of the highest court of a State that a law VOL. CC-37

Argument for Defendants in Error.

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enacted in the exercise of the police power of the State, to protect the public from danger is valid, will not be reversed by this court, on the ground of an infraction of the Constitution of the United States. N. Y. & N. E. R. R. Co. v. Town of Bristol, 151 U. S 556.

It may be assumed that it is a power coextensive with selfprotection, and is not inaptly termed "the law of overruling necessity." C. & N. W. R. R. Co. v. City of Chicago, supra; Lake View v. Rose Hill Cemetery Co., 70 Illinois, 191.

It is well settled that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation, destined to secure the common welfare. C. & A. R. R. Co. v. J. L. & R. R. Co., 105 Illinois, 388.

In granting a charter to a private corporation the State does not part with its powers to enact proper police regulations operating upon such corporations, the same as upon natural persons; and these bodies accept their charters upon the implied condition that they are to exercise their rights subject to the power of the State to regulate their action as it may individuals. Ohio & Miss. R. R. Co. v. McClellan, 25 Illinois, 140.

It is in the power of the State to require local improvements to be made which are essential to the health and prosperity of any community within its borders. To this end it may provide for the construction of canals for draining marshy and malarious districts and of levees to prevent inundations. Hagar v. Reclamation District, 111 U. S. 701.

Since the amendment to the Illinois constitution adopted in 1878, the Illinois court has held that corporations formed for drainage purposes are public corporations. Heffner v. Cass & Morgan Counties, 193 Illinois, 439.

The right of drainage through a natural watercourse is the natural easement appurtenant to the land of every individual through whose lands such natural watercourse runs, and every owner of land along such watercourse is obliged to take notice

of the natural easement possessed by other owners along the same watercourse. C., B. & Q. Ry. Co. v. The People ex rel. &c., 212 Illinois, 103.

A natural watercourse is not required to be used only in its natural state, but may be improved either by being deepened or widened by artificial means or by the construction along its course of a channel or drain for the purpose of more effectually carrying off the surface water from the land. The construction of such improvement does not create a substantively new watercourse, nor amount to an abandonment of the natural watercourse. Lambert v. Allcorn, 144 Illinois, 313.

The right to drain upon and over lower or servient lands without making compensation for such privilege is the same whether the dominant land is the farm of an individual owner or is a public highway.

The public represented by defendants in error, have the right to have the surface water, falling or coming naturally upon the district in question, to pass off the same through the natural channel, and over the right of way of plaintiff in error, and have the right to construct ditches or drains for the purpose of carrying such surface water into the natural channel, even though the water thus carried across the right of way is thereby increased. Graham v. Keene, 143 Illinois, 425; K. & S. R. R. Co. v. Horan, 131 Illinois, 288. This is one of the inevitable results experienced in the drainage and improvement of land, which the development of the country cannot always permit to remain in a state of nature. Ribordy v. Murray, 177 Illinois, 134.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

1. The first question is one of the authority of this court to review the judgment below. As we have seen, the railway company insisted in the court of original jurisdiction that the statute under which the Drainage Commissioners proceeded

could not be applied in this case without taking its property for public use without compensation, and therefore depriving it of property without due process of law, or without denying to it the equal protection of the laws guaranteed by the Comstitution of the United States. The judgment of the trial court was adverse to that view. In the Supreme Court of the State the railway company, by its assignments of error, preserved its objection based on constitutional grounds. That court did not, in words, refer to the Constitution of the United States, and its opinion concluded: "Entertaining the views above expressed, and founding our conclusion upon the rights and duties of the parties as found in the common law, we deem it unnecessary, to pass upon the constitutionality of section 401 of the Farm Drainage Act."

The contention is that as the state court based its judgment on the common law duty of the railway company, and not expressly on any Federal ground, it cannot be said that there was any denial of the Federal right claimed by the company; consequently, it is argued, this court is without jurisdiction to reexamine the final judgment. Rev. Stat. § 709.

Undoubtedly, the general rule is that where the judgment of the state court rests upon an independent, separate ground of local or general law, broad enough or sufficient in itself to cover the essential issues and control the rights of the parties, however the Federal question raised on the record might be determined, this court will affirm or dismiss, as the one course or the other may be appropriate, without considering that question. But it is equally well settled that the failure of the state court to pass on the Federal right or immunity specially set up, of record, is not conclusive, but this court will decide the Federal question if the necessary effect of the judgment is to deny a Federal right or immunity specially set up or claimed, and which, if recognized and enforced, would require a judgment different from one resting upon some ground of local or general law. And such plainly was the effect of the judgment in this case. If, as the railway company contended, the pro

posed action of the Drainage Commissioners would deprive it of property without due process of law and also deny to it the equal protection of the laws, then a judgment should have been rendered for the company. And that result could not be avoided merely by silence on the Federal question and by plac-. ing the judgment on some principle of the common law. The constitutional grounds relied on must, if sustained, displace or supersede any principle of general or local law which, but for such grounds, might be sufficient for the complete determination of the rights of the parties. The claim of a Federal right or immunity specially set up from the outset went to the very root of the case and dominated every part of it. If that claim be valid, then the law is for the railway company; for, the supreme law of the land must always control. Therefore a failure to recognize such Federal right or immunity, and the decision of the case on some ground of general or local law, necessarily has the same effect as if the claim of Federal right or immunity had been expressly denied. That claim having, then, been distinctly set up by the company, and being broad enough to cover the entire case, it may not be ignored, and this court cannot refuse to determine whether the alleged Federal right exists and is protected by the Constitution of the United States. If the case had been decided in favor of the railway company on some ground of local or general law, then the claim of a Federal right would have become immaterial, and we could not have reëxamined the judgment. But the decision was otherwise and was, in law, a denial of the claim of a Federal right.

For these reasons we are of opinion that this court has jurisdiction to reëxamine the final judgment of the state court so far as it involved the Federal right or immunity specially set up by the railway company.

2. The concrete case arising upon the petition and the demurrer is this: A public corporation, charged by law with the duty of causing a large body of lands, principally swamp and slough lands, to be drained and made capable of cultivation,