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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 pre-existing, 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 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 section 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 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."
J. R. Beckwith, for plaintiff in error. S. T. Wallis, for defendant in
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 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 Sept. 24, 1789, c. 20, § 25, (1 St. 86;) Feb. 5, 1867, c. 28, § 2, (14 St. 386;) Rev. St. § 709; Almonester v. Kenton, 9 How. 1, 9; Railroad Co. v. Marshall, 12 How. 165; Cousin v. Blanc, 19 How. 202; Delmas v. Insurance Co., 14 Wall. 661, 663, 667; Crossley v. New Orleans, 108 U. S. 105, 2 Sup. Ct. Rep. 300; Crescent City Co. v. Union Co. 120, U. S. 141, 146, 7 Sup. Ct. Rep. 472. 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 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 sup
plying 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 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, 50 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, 398. The rule so laid down has been often affirmed, and constantly acted on. Railroad Co. v. Marshall, 12 How. 165, 167; Bridge Propr's v. Hoboken Co., 1 Wall. 116, 143; Steines v. Franklin Co., 14 Wall. 15, 21. In Klinger v. Missouri, 13 Wall. 257, 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 section 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 it was actually decided, or that the judgment as rendered could not have been given without deciding it." Brown v. Atwell, 92 U. S. 327; Bank v. Board, 98 U. S. 140; Chouteau v. Gibson, 111 U. S. 200, 4 Sup. Ct. Rep. 340; Adams Co. v. Railroad Co., 112 U. S. 123, 5 Sup. Ct. Rep. 77; Railway v. Guthard, 114 U. S. 133, 5 Sup. Ct. Rep. 811. 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, 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. Bank, 12 Wall. 379, 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. In Williams v. Bruffy, 96 U. S. 176, 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. St. § 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 legistive branch of the government, and, whether exercised by the legislature itself, or delegated by it to a municipal corporation, is strictly a legislative power. U. S. v. New Orleans, 98 U. S. 381, 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, 440. See, also, Insurance Co. v. City Council, 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 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, 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 by-law 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 Water-Works v. Rivers, 115 U. S. 674, 6 Sup. Ct. Rep. 273, and Water-Works v. Water-Works, 120 U. S. 64, 7 Sup. Ct. Rep. 405, 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 Water-Works Company had been incorporated since the New Orleans Water-Works 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 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. Bank v. Bank, 16 Wall. 483, 497; Confederate Note Case, 19 Wall. 548; Railroad Co. 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, 13 Wall. 432, 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 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 was thus explained by Mr. Justice MILLER: "As it was apparent from the record that the judgment of the court of original jurisdiction