the Circuit Courts of the United States, and of this court, which from the original Judiciary Act of 1789 have, where the amount involved was made the test of jurisdiction, uniformly used the words "exclusive of costs," would indicate, so far as the Federal courts are concerned, that a mere judgment for costs could not ordinarily be made the basis of an appeal to this court.

For the reasons above given, the appellant did not have the requisite interest to maintain this appeal, and it is therefore Dismissed.

MR. JUSTICE HARLAN and MR. JUSTICE WHITE are of opinion that the plaintiff in error was entitled to prosecute the present writ, and that the court should determine the case upon its merits.

CITY OF JOPLIN v. SOUTHWEST MISSOURI LIGHT

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

No. 32. Argued October 20, 1903.-Decided November 16, 1903.

Restraints upon governmental agencies will not be readily implied. There are presumptions against the granting of exclusive rights and against limitations upon the powers of government.

By the statute of 1891, cities in Missouri may erect and operate their own electric light plants, or they may grant the right to persons or corporations to erect and operate such plants for not exceeding a period of twenty years. The city of Joplin by ordinance adopted subsequent to the statute, granted such right for twenty years to a corporation which erected and has ever since operated the plant. The ordinance conferred rights, exacted obligations, fixed rates and provided for its written acceptance and the corporation so accepted it. By a later ordinance the city provided for the issue of bonds to build its own plant.

In an action brought by the Light Company to restrain the erection of the plant during the continuance of the twenty year term, on the ground that the ordinance violated the Federal constitution in that it impaired the obligation of the contract existing under the ordinance granting the franchise.

Held that as such ordinance did not provide that the city would not erect

its own plant no such provision could be implied.

Held that the fact that cities could elect under the statute of 1891 either to erect their own plants or grant franchises, could not in case of their election to grant the franchise be construed as an implied contract not to erect their own plants during the period for which the franchise was granted.

BILL in equity to restrain the appellant from supplying its inhabitants with incandescent lights or other electric lighting in competition with the appellee.

The city of Joplin is a municipality of the State of Missouri; the appellee is a corporation of said State, and the jurisdiction of the Circuit Court was invoked on the ground that the action of the city impaired the obligation of the contract existing between it and the appellee, in violation of the Constitution of the United States, and hence the appeal directly to this court.

A preliminary injunction was granted. 101 Fed. Rep. 23. It was made perpetual upon final hearing, and a decree was entered enjoining the city "from supplying or furnishing to the inhabitants, residents or any other person, firm or corporation within said city, or any addition thereto or extension thereof, electric lights, either incandescent or arc, or in any other form or manner, for commercial or private lighting, for and during the full term" of the grant to the predecessors and assignors of appellee, to wit, the term of twenty years from and after October 7, 1891. 113 Fed. Rep. 817.

A statute of Missouri, Laws, 1891, April 2, p. 60, authorizes cities to erect, maintain and operate electric light works, to light the streets, and supply the inhabitants with light for their own use, and to establish rates therefor. Or they may, the statute provides, "grant the right to any person or persons or corporation to erect such works upon such terms as may be prescribed by ordinance, provided that such right shall not extend for a longer period than twenty years." Subsequently to and in pursuance of this statute the city by ordinance, October 7, 1891, granted the right to

erect and maintain an electric light plant to certain persons, naming them, their successors and assigns, for a period of twenty years. The plant was erected at considerable expense, and has ever since been maintained and operated. The appellee is the successor of the original grantees.

The ordinance conferred rights and exacted obligations, and fixed, besides, the rates to be charged. It also provided for its written acceptance within ten days after its passage and the commencement of the work within sixty days. It was accepted.

Subsequently, and on March, 1899, the city, acting in pursuance of and in the manner provided in certain ordinances, issued bonds to the amount of $30,000, "for the purpose of erecting an electrical light plant to be owned, controlled and operated by the city," and by the means obtained thereby constructed electrical works, erected poles and wires, established a schedul of rates, and entered into the business of commercial electrical lighting in competition with appellee. The bill alleged that the appellee was the owner of real and personal property within the city, which is assessed by the city for municipal taxation, and that appellee is compelled by reason of such taxation "to aid and assist in operating and maintaining defendant's (the city's) electric plant and business as a rival and competing one" with appellee's electrical plant and business.

Mr. C. H. Montgomery, with whom Mr. Samuel W. Moore was on the brief, for appellant:

The franchise granted in the ordinance was not exclusive nor does it contain any obligation on the part of the municipality not to compete with the owner of the franchise in commercial lighting or otherwise; nor is the use of the streets granted by the franchise an exclusive one. The ordinance amounts to a license to use the streets and that is all. One claiming the grant of an exclusive franchise from a municipality must be able to point out the express terms by which the exclusive grant is created. The rights of the city and its citizens

do not pass by uncertain or ambiguous language or by implication. Where a municipality is vested with certain powers, the law jealously guards their exercise and construes contracts of the nature now under consideration most favorably to the municipality. Bienville Water Co. v. City of Mobile, 95 Fed. Rep. 539; 175 U. S. 1; 186 U. S. 212; Skaneatales Water Works Co. v. Skaneatales, 184 U. S. 354; Pearsall v. Railway Co., 161 U. S. 664; Charles River Bridge v. Warren Bridge, 11 Peters, 420; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142; Stein v. Water Co., 141 U. S. 67; New Orleans Water Works Co. v. Rivers, 115 U. S. 674; St. Tamany Water Works Co. v. New Orleans Water Works, 120 U. S. 64; Hamilton Gas Light Co. v. Hamilton, 146 U. S. 258; Thompson Electric Co. v. City of Newton, 42 Fed. Rep. 723; Lewis v. City, 75 Fed. Rep. 884; City of Brooklyn, 143 N. Y. 596; City of Austin v. Bartholamew, 107 Fed. Rep. 349; Newburyport Water Co. v. Newburyport, 103 Fed. Rep. 587.

The power of the city of Joplin to erect and operate its own electric light plant and the power to grant to some person or corporation a franchise therefor are concurrent powers. The lower court erred in holding that the city in granting a franchise for the erection of an electric light plant thereby disabled itself from erecting and maintaining one of its own. Skaneatales W. W. Co. v. Skaneatales, supra; The Walla Walla Case, 172 U. S. 1; Los Angeles v. Water Co., 177 U. S. 588, and other cases on brief of defendant in error, distinguished.

If the city of Joplin in granting complainant's franchise thereby disabled itself from erecting an electric light plant of its own, then the lower court was without jurisdiction and should have dismissed the bill. Hamilton Gas Light Co. v. Hamilton, 146 U. S. 258; State v. Hamilton, 47 Ohio St. 52.

Mr. J. McD. Trimble and Mr. John A. Eaton for defendant in error and appellee:

The statute must be read into the ordinance or contract. Walker v. Whitehead, 16 Wall. 314.

As to the implied provisions, that the city should not engage in competitive private lighting itself, the only rule for finding the true and entire contract is that the express provisions of the statute and contract shall be first considered, and then what is necessarily implied from such express provisions. Detroit Citizens St. R. R. Co. v. Detroit R. Co., 171 U. S. 48; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558.

While all implications, doubts and ambiguities are resolved against the grant or privilege claimed, this rule correctly applies to the grant of the power. When the grant is once conceded, the rule announced in the cases above cited is the settled one. Dillon on Municipal Corporations, 4th ed. §§ 451–459. The law implies duties and obligations in a contract from those which are expressed, and the implied duties and obligations are as much a part of the contract as those expressed. The Union Depot Co. v. The Chicago, K. & N. Ry. Co., 113 Missouri, 213, 1. c. 225; Bishop on Contracts, par. 241; 2 Parsons on Contracts, 6th ed. 514. And see The Walla Walla Case, 177 U. S. 588; Cort v. Lassard, 17 Oregon, 221; S. C., 17 Am. St. Rep. 720; 22 Pac. Rep. 1054; United States v. Babbit, 1 Black. 55; Winecup v. Hughes, L. R. 6 C. P. 78, 84; Donahue v. Kittrell, 1 Cliff. 144; Massachusetts v. Rhode Island, 12 Peters, 723.

In the exercise of its business or proprietary powers, the city of Joplin adopted the ordinance and entered into the contract contained therein. In fixing the maximum charge to be made for the lights, it contracted for the private advantage of the inhabitants of the city. The purpose of such a contract is not to govern the inhabitants of the city, but to obtain a private benefit for the city itself and its denizens. Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. Rep. 271, and cases cited p. 282; Zabriskie v. R. R. Co., 23 Howard, 381.

The city does not propose to be an ordinary competitor but to be an unusual competitor for the avowed purpose of receiving enough from its commercial lighting to pay for its public lights.