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pany does not operate as a taking of its property right to recover from the city any sum for without due process of law.

the water supply greater than the city 6. The tax-payers can have no greater rights

taxes for that year. in the contract than the city itself has, and hence & determination of the city's rights also disposes

(3) That the company in 1884 procured of theirs.

an act of the legislature providing that

the city should be required to pay the In error to the supreme court of the company the value of all the water it had ftate of Louisiana. Dismissed.

supplied or should supply during any year The facts of the cage fully appear in the for which taxes had been levied for mufollowing statement by Mr. Justice nicipal purposes; that unless the city BROWN:

should provide and appropriate a sum This was a motion to dismiss the writs sufficient for this purpose the company of error in these cases upon the ground sbould not becompelled to deliver water to that do federal question was involved. it; that the taxes imposed should not be The suit was originally begun by the filing exacted until the city should have provid. of a petition in the civil district court for ed for the payment of the water supply the parish of Orleans by Edward Conery, for the same year; and that the city Jr., and about 40 others, resident tax- should be empowered tu contract with payers of the city of New Orleans, against the company, and determine upon the the New Orleans Wuter-Works Company terms and conditions, and fix a price for and the city, to enjoin the city from mak. obtaining from said company such supply ing any appropriations or drawing any of clear or filtered water. warrants ju favor of the water-works (4) That, acting under this statute, the company under a certain contract set city council, in September, 1884, passed an forth in the bill.

ordinance, No. 909, authorizing the mayor The petition set forth in substance: to enter into a contract with the com

(1) That the legislature in 1877 incor- pany, and in pursuance thereof the mayor porated the New Orleans Water-Works did enter into such contract, binding the Company for the purpose of furnishing the city, during the whole of the remainder of inhabitants of the city with an adequate the charter of the company, to pay it the supply of pure water, granting it the ex- sum of $60 for every fire-plug, fire-hydrant, clusive privilege of furnishing water to the and fire-well connected with the mains or city and its inhabitants, by means of pipes pipes of the company, "of which there are and conduits, for 50 years from the pas- now 1,139, and which number shall ever bu sage of the act; that the eleventh section the least measure of the annual eum to be of the act prurided that the city should paid said company," and to pay $60 each be allowed to use all water for municipal for every additional bydrant, etc. This purposes free of charge, and in consider contract was executed October 3, 1884. ation thereof the franchises and property (5) That said ordinance No. 909 and of the company should be exempt fron said contract were not authorized by the taxation, municipal, state, or parochial; act of 1884; that the legislature did not that in 1878 the act was amended in such *contemplate that the contract relations manner as to make the company liable to between the city and the company, as set state taxes; and that the act was accepto forth in its charter and interpreted by the ed by the city, by the water-works com. supreme court, should be in any manner pany, and by all others interested, and the changed, except for the purpose of enproperty purchased by the city from the abling the company to furnish clear and Commercial Bank was transferred to the filtered water to the city; that the only corporation.

proper interpretation of said act was that (2) That, at the time the company was the city, before it demanded the taxes incorporated, it was known by every intel. from the water-works company, should ligent person in the state that the legis- provide in its budget for the payment of lature bad no power to exempt property the amount due to the company under its from taxation, except such as was used charter as interpreted by the supreme for church, school, or charitable purposes; court, for the water furnished in that year that for several years the water-works by the company, and that the value of the company supplied the city with water, water mentioned did not mean new value and the city demanded of the company no to be fixed by contract between the comtaxes; that in the year 1881 the city pany and the city, but the value as fixed brought suit against the company for the in the charter of the company, which was sum of $11,484.87, taxes assessed upon its binding upon both parties; that, if the property for that year; that the water- act did contemplate a new and different works company reconvened in that suit contract, stipulating what the value of and demanded payment for the water*it the water was, it was unconstitutional, bad furnished; that in the civil district | null, and void, in that,First, it violated court, where the case was tried, judgment that provision of the state constitution was rendered in favor of the city for the which declares that “the general assemtaxes, and also in favor of the company bly shall not pass any local or special law against the city for the value of the water creating corporations, or amending, resupply of that year, namely, $40,281.87; newing, extending, or explaining the char. that the city appealed, and in the supreme ter thereof;” second, that it violated arcourt the judgment in favor of the city ticle 57, which declares that “the general was affirmed, but the judgment in favor assembly shall have no power to release of the company was reduced to $11,484.87, or extirguish, or to authorize the releas. theexact amounto! the taxes for that year; ing or extinguishing, in whole or in part and that the supreme court decided that, the indebtedness, liability, or obligation. under the exact of 1877, the company had no of any corporation or individual to this

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state, or to apy parish or municipal cor either that such question was apparent in poration therein;" third, that it violated the record, and that a decision was made article 231, which provides against remite thereon, or that, from the facts atated, ting the furfciture of the cbarter of any such question must have arisen, and been corporation, or renewing, altering, or uecessarily involved in the case. If it apamending the same, or passiug any gen: pear either that the decision of the state eral or special law for the benefit of said court was made upon rules of general ju. corporation, "except on the condition risprudence, or that the case was disposed that said corporation shall thereafter of upon other grounds, broad enough in hold its charter subject to the provisions themselves to sustain the judgment withof this constitution;" fourth, that it also out considering the federal question, and viola tes article 45, because it embraces that such question was not necessarily more than one object.

involved, tbe jurisdiction of this court will (6) That in accordance with this unlaw. not attach. ful contract the city appropriated, for the 1. Was there a federal question involved year 1885, $68,340, to be paid to the water in this case? None such appears upon the works company for the water supply for face of the bill, the basis of which is a conthat year, of which it had already been flict between the act of 1884, and the ordi. paid $39,875; that the petitioners present nance and contract thereunder, and the ed a petition to the council, protesting constitution of the state. Four clauses of against this *contract, calling attention the constitution are cited, all of which to its unconstitutionality and illegality, this act in alleged to violate; but in none and asking the council to repudiate it; of them is there a suggestion of a conflict that the council neglected to take any ac with the federal constitution or laws. On tion; and that they believe it did not in May 27, 1887, the city of New Orleans filed tend to do so, but would continue to rec. a brief answer to the bill, denying, all and ognize the contract from year to year, singular, the allegations therein contained, and make appropriations to pay it.

etc., and praying judgment against the Wherefore, they prayed an injunction plaintiffs' demand. Ou November 3, 1888, against the city from making any appro without withdrawing its first answer, it priation under the contract, and that filed an amended or supplemental answer, the contract of October 3, 1884, and in which it assumed an entirely different ordinance No. 909, and the act of the position, a verring that by the terms of legislature of 1881, be declared uncon the act of 1877 the city was entitled to its stitutional, null, and void, and both supply of water free of charge, “and that parties be enjoined from setting up the the guaranty of this law to the city, securcontract as valid and binding. Exceptions ing to it the benefits of free water, has not were filed to this petition, which were sus been and cannot be diminished without tained, and the petition dismissed. An ap- | impairing the obligation of contracts, and peal was thereupon taken to the supreme thereby violating article 1, § 10, of the concourt of the state. It does not appear stitution of the United States," and that clearly what became of this appeal, though the ordinance No. 909 was an attempt to the decree of the court below seems to frustrate and set at naught the terins of have been reversed, as an answer

the act of 1877. Hubsequently filed in the court of original The second answer further proceeded to jurisdiction, admitting most of the alle. *allege the illegality of the contract of Oc.. gations of fact in the bill, but denying the tober 3, 1884, also of the ordinance No.909, construction put upon the contract, and which was charged to be in direct viola. denying that the price contracted to be tion of the act of 1884, and that the decispaid by the city was unfair or exorbitant. ion of the supreme court gave a judicial Judgment was subsequently entered to the construction to section 11 of the act of effect that the contract, the ordinance No. 1877, and deterinined the effect of the legis. 909 of September 23, 1884, and the act of the lative contract between the city and the legislature of 1884, were unconstitutional, water-works company by virtue of the act null, and void, and an injunction was is vf 1877, and declared that the latter, under Bued according to the prayer of the bill. said contract, bad no power to demand An appeal was taken to the supreme court or require from the city of New Orleans of the state, upon the hearing of which in any year any sum for the water supply, the judgment of the lower court was re which it was bound under its charter to versed, and the bill dismissed and the in- furnish to the city, greater than the junction dissolved. 41 La. Ann. 910, 7 amount of the city taxes for that year. South. Rep. 8. Thereupon writs of error The answer, in its further a verments, is were sued out from this court, both by a substantial iteration of the charges the city of New Orleans and by (onery made in the bill, and sets forth that in and the other tax-payers. The record be case the courts should decide that the act ing filed, this motion was made to dismiss. of 1884 did authorize the city and the com

Carleton Hunt, for city of New Orleans. pany to enter into a new contract, stipuJ. R. Beck with, Gus A, Breaux, and F. P. lating the value of the water to be supPoche, for New Orleans Water-Works Co. | plied, the act itself was unconstitutional, et al.

in that it violated no less than six articles

of the state constitution. Mr. Justice Brown, after stating the The district court, in giving its reasons facts as above, delivered the opinion of the for judgment, held that, notwithstanding court.

the act of 1884, the obligation of the com. In order to sustain the jurisdiction of pany to furnish the water supply still this court upon the ground that a federal subsisted, subject only to the qualific:question is presented, it should appear tion that compensation equal in amount

was

to the taxes exacted might be claimed, in no case would it ever claim from the and that in requiring the city to pay for city for water supply any amount in exall the water it received, (in the event of cess of that which the city would have its demanding the tax,) and in providing the rigbt to demand for taxes due her; specially that, unless it set apart a suffi. that, while the city of New Orleans was a cient sun to make such payment, the com. functionary created by the sovereign, it pany should not be compelled to deliver did not follow that the sovereign could water as provided in its charter, the leg- divest it of its property, appropriate it to islature was releasing or extinguishing its own use, or give it away, or impair an obligation which had been ascertained the obligation of contracts in its favor; and defined by the supreme court of the and that it was incompetent for the legstate, from the water company to the city islature to deprive the city of its right of of New Orleans, within the meaning of ownership to the judgment in its favor, thestate constitutional provision, (article whereby it was to be relieved from all 57,) which provided that “the general as- amount exceeding the taxes due il by the sembly shall have no power to release or water-works company. This is the only extinguish, or to authorize the releasing opinion which contains any suggestion or extinguishing, in whole or in part, the of a federal question. There was another indebtedness, liability, or obligation of dissenting opinion, but the dissent was any corporation or individual to this based solely upon the ground of a con. state, or to any parish or municipal cor- flict between the act of 1884 and the state poration therein.” The court therefore constitution, and upon the theory that sustained the prayer of the bill, and the prior judgment operated by way of granted an injunction. There was no ref- estoppel against any subsequent agitaerence in this opinion to any federal ques- tion of the questions therein decided. tion.

While there is in the amended and supOn appeal to the supreme court the plemental answer of the city a formal judgment of the district court was re- averment that the ordinance No. 909 imversed, the majority of the court holding paired the obligation of a contract arising that the decision of the court in the prior out of the act of 1877, which entitled the case annulling the exemption from taxa. city to a supply of water free of charge, tion contained in section 11 of the act of the bare averment of a federal question is 1877 did not regulate the contract between not in all cases sufficient. It must not the parties for the future as to the price be wholly without foundation. There of the water to be furnished by the com. must be at least color of ground for such pany, since that would be making a con. u verment, otherwise a federal question tract for the parties which they never in- might be set up in almost any case, and tended, and which was not warranted the jurisdiction of this court in voked by any promises in the water-works simply for the purpose of delay. Thus in ebarter; that there was no other section Millingar v. Hartupee, 6 Wall. 258, it was of the act imposing any obligation upon held “that to bring a case within that the company to furnish free water to the provision of the judiciary act, which decity for any franchise or privilege granted clares that the final judginent of a state by the state, and that the city could not court may be re-examined, where is drawn impose any obligation upon it, contrary in question the validity of an authority to the original grant, without its consent. exercised under the United States, there The court further held that there was must be something more than a bare as. no proof in the record of any fraud or un- sertion of the exercise of such authority." due advantage obtained by the water. In delivering the opinion of the court the works company over the city, and that, in- cbief justice observed: "The authority dependent of any statutory provision intended by the act is one having a real subsequently enacted, authorizing the city existence, derived from competent governto contract for its water supply (alluding mental power. If a different construction to the act of 1884,) it had full and plenary had been intended, congress would doubtpower to do so under the provisions of less have used fitting words. The act its charter. The court also held that the would have given jurisdiction in cases act of 1884, and the ordinance, and the of decisions against claims of authority contract made in pursuance of it, violated under the United States. In respect to no provision of the state constitution, and the question we are now considering, were valid. No allusion was inade in this authority'*stands upon the same foot.* opinion to any federal question.

ing with treaty' or 'statute.' If a right The chief justice, dissenting, was of the were claimed under a treaty or statue, opinion that the judgment in the prior and, on looking into the record, it should suit settled forever the question of the appear that no such treaty or statute respective liability of both corporations, existed, or was in force, it would hardly the oue for the water supplied, the oth- be insisted that this court could review er for the taxes demandable; that its ef- the decision of a state court, that the right fect was to close the door for all time to claimed did not exist." This language thuse litigants on the subject of such re- was used in connection with the first clause ciprocal liability, the one to the other; of section 709 of the Revised Statutes, that, the moment it was rendered, it be- "where is drawn in question the validity came the property of eacb party, who of a treaty or statute of, or an authority thed acquired the right of using it as an exercised under, the United States, and the effectual shield for protection against any decision is against their validity,” but it is further demand; that it was designed to equally applicable to the next clause, establish firmly for the future, during the which covers the case under consideraterm of the existence of the company, that tion, “where is drawn in question the

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validity of a statute of, or an authority In the case of East Hartford v. Bridge exercised under, any state, on the ground Co., 10 How. 511, 533, 534, the constitution. of their being repugnant to the constitu- ality of an act of the legislature discontintion, treaties, or laws of the United uing a ferry, the franchise of which for States, and the decision is in favor of their more than 100 years had belonged to the validity.”

town of Hartford, and subsequentiy to Applying the principle of this decision to that of East Hartford, was drawn in questhe present case, we think that, before we tion. It was claimed by the towu that the can be asked to determine whether a stat state had impaired tbe obligation of its ute has impaired the obligation of a con contract; but it was held that “the par. tract, it should appear that there was a ties to this grant did not, by their charter, legal contract subject to impairment, and stand in the attitude towards each other 60me ground to believe that it has been of making a contract by it such as con. impaired; and that, to constitute a viola. | templated in the constitution, and as tion of the provision against depriving could not be modified by subsequent legis. any person of his property without due lation. The legislature was acting here on process of law, it should appear that such the one part, and public municipal and person has a property in the particular political corporations on the other. • thing of which he is alleged to have been the grantees likewise, the towns being deprived.

mere organizations for public purposes, 2. The contract relied upon in this case were liable to have their public powers, is that contained in section 11 of the act rights, and duties modified or abolished of 1877, which provided that the city at any moment by the legislature. should be allowed the free use of water | Hence, generally, the doings between them for municipal purposes, in consideration and the legislature are in the nature of leg. whereof the franchise and property of the islation rather than compact, and subject water company should be exempted from to all the legislative conditions just taxation. There are several reasons, how. named, and therefore to be considered as ever, why the city cannot claim that this not violated by subsequent legislative contract was impaired by subsequent leg. changes.' islation: First, because the contract it. So in Laramie Co. v. Albany Co., 92 U. self, which was in reality between the S. 307, 311, it was held that the legislature state and the water-works company, was had power to diminish or enlarge the area ultra vires and roid, and was so declared of a county whenever the public convenby the supreme court of Louisiana in the ience or necessity required. “Institutious case between the city and tbe water-works of the kind," said Mr. Justice Cu.FFORD, company, (36 La. Ann. 432;) second, be. " whether called counties or towns, are cause the city repudiated its contract by the auxiliaries of the state in the imporbringing suit against the company for its tant business of municipal rule, and cannot taxes, and it does not now lie in the mouth have the least pretension to sustain their of its counsel to claim that the obligation privileges or their existence upon anytbing of such contract was impaired by subse- like a contract between them and the legquent legislation, when such legislation islature of the state, because there is not, was rendered necessary by, or at least was and cannot be, any reciprocity of stipula. the natural outgrowth of, its own repu. tion, and their objects and duties are ut. diation of the contract; third, the city, terly incompatible with everything of being a municipal corporation and the the nature of compact. So in the recent creature of the state legislature, does not case of Williamson v. New Jersey, 130 U. stand in a position to claim the benefit of S. 189, 199, 9 Sup. Ct. Rep. 453, it was held the constitutional provision in question, that the power of taxation on the part since its charter can be amended, changed, of a municipal corporation is not private or even abolished at the will of the legis- property or a vestel right of property in lature. In the Dartmouth College Case, 4 | its hands, but the conferring of such pow. Wheat. 518, 660, 661, in which the inviola. er is an exercise by the legislature of a bility of private charters was first assert- / public and governmental power which ed by this court, a distinction is taken, in cannot be imparted in perpetuity, and is the opinion of Mr. Justice WASHINGTON, always subject to revocation, modificabetween corporations for public govern- tion, and control, and is not the subject ment and those for private charity; and of contract. Said Mr. Justice Blatchit is said that the first, being for public FORD: “We are clearly of opinion that advantage, are to be governed according such a grant of the power of taxation by to the law of the land, and that such a the legislature of a state does not form corporation may be controlled, and its such a contract between the state and the constitution altered and amended, by the township as is within the protection of goverment, in such manner as the public the provision of the constitution of the interest may require. “Such legislative in. United States which forbids the passage terferences cannot be said to impair the by a state of a law impairing the obligacontract by which the corporation was tion of contracts." formed, because there is in reality but one At the last term of this court, in the party to it; the trustees or governors of case of Board v. Skinkle, 119 U. S. 334, 11 the corporation being merely the trustees Sup. Ct. Rep. 790, it was held, the chief jusfor the public, the cestui que trust of the tice speaking for the court, that an execufoundation.” Mr. Justice STORY was also tive agency created by a state for the purof opinion, (page 694,) that, “corpora pose of improving public highways, and tions for mere public government, such as empowered to assess the cost of its im. towns, cities, and counties, may in many provements upon adjoining lands, and to respects be subject to legislative control. purchase such lands as were delinquent in

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the payment of the assessment, did not | erty without due process of law? It cerby such purchase acquire a contract right tainly has not been deprived of its propin the land so bought, which the state erty in the judgment of the supreme court could not niodify without violating the in its favor for the taxes, since the judgprovisions of the constitution of the Unit ment was paid and satisfied. The only ed States. But further citations of au property it is assumed to have, then, thorities upon this point are unnecessary. arises from the interpretation put by the They are full and conclusive to the point supreme court upon the act of 1877, which, that the municipality, being a mere agent it is argued, created an indefeasible riglit of the state, stands in its governmental on the part of the city to set off its taxes or public character in no contract rela- | against the claim of the water-works comtion with its sovereign, at whose pleasure pany for water, of which it could not be its charter may be amended, changed, or deprived. But such interpretation deterrevoked, without the impairment of any mined only the respective rights of the parconstitutional obligation, while with re ties as they then existed, and, for the reaspect to its private or proprietary rights sons already stated, such rights, at least and interests it may be entitled to the so far as the city is concerned, were subconstitutional protection. In this caseject to change at the will of the legislature. the city has no more right to claim an Indeed, under the act of 1884 and ordi. immunity for its contract with the wa nance No. 909, the right of the city to its ter-works company, than it would have taxes remains unimpaired. The only had if such contract had been made di. | change made is in the creation of a new rectly with the state. The state, having basis of liability of the city in respect to authorized such contract, might revoke its water supply for municipal purposes. or modify it at its pleasure

The only property of which it was de. Equally untenable is the claim that the prived was the right it had possessed unsupreme court of the state gave a con der the act of 1877 of paying for its water struction to this act of 1877 which consti- supply in taxes; but, if this were propertutes a contract between the water-works ty at all, even within the liberal detinition company and the city, wbich_subsequent of that word given by Mr. Justice Bradlegislation could not impair. In constru LEY in Campbell v. Holt, 115 U. S. 620, ing section 11, the supreme court held that 630, 6 Sup. Ct. Rep. 209, it was not such a the exemption from taxation was invalid, vested right as was beyond the control and that the reconventional demand of of the legislature. An adjudicatiou of the the water-works company for the water -rights of two private parties to a consupplied was sustainable only to the exact tract, with respect to the terms of such amount of taxes for the same year. This, contract, does not prevent their agreeing however, was not the making of a new upon other and different terms for the fut. contract between the water-works com ure. The fact that such parties are a pri. pany and the city, but the nullification of vate and a public corporation is immatean old one, and a determination of the re rial, so long as the right to contract exists. spective rights of the city and the com. 4. Little need be said with regard to the pany under that section of the act. Courts appeal of Conery and the other tax-payhave no power to make new contracts or ers. They sue in the right of the city, the to impose new terms upon parties to con rights of the city are their rights, and tracts without their consent. Their pow. they have no other or greater rights upon ers are exhausted in fixing the rights of par. this appeal than has the city. Indeed, ties to contracts already existing. But, the city has, in its amended and supple. conceding that the decision of the su. mental answer, joined with them in the preme court amounted simply to an inter assertion of its rights, and they are pretation of an existing contract, by which bound by the disposition of the case the company agreed to furoish the city against it. As there is no federal question with waterin consideration of the amount properly presented in this case, the moof its taxes, yet the contract was, for the tion to dismiss is granted. reasons already*stated, so far as the city was concerned, subject to the will of the Mr. Justice HARLax is of opinion that legislature. As was justly remarked in this court has jurisdiction, and that the the concurring opinion of Mr. Justice judgment below should be affirmed. POCHÉ in this case: “It surely cannot be seriously urged that the legislature is

(142 U. S. 93) stripped of its power to authorize a con FRANRLIN COUNTY V. GERMAN SAV. BANK. tract to have effect in the future by judi.

(December 14, 1891.) cial interpretation of a contract, and which at the time had reference to the

RES JUDICATA SUIT TO Cancel RAILROAD AID

BONDS. present and to the past only. A very large proportion of the legislation in all

A county sued to enjoin the collection of

taxes to pay certain railroad aid bonds, and to the states is prompted by the decisions

procure the cancellation of the bonds themselves, of courts, and is intended to reinedy

alleging that they were void by reason of the some mischief pointed out by, or resulting road's non-compliance with certain conditions from the utterances of, the courts of the precedent, and that the acts authorizing their country.”

issuance were unconstitutional. The bill recited Our conclusion upon this branch of the

these acts, and set out in full all the proceedings case, therefore, is that there was no con

prior to the issuance of the bonds. A bondtract between the city and the water

holder intervened, putting in issue all the aver

ments of the bill, and after a full trial thereof a works company wbich was protected by decree was rendered, declaring certain of the the constitutional provision in question. bonds valid, and dismissing the bill as to them.

3. Has the city boen deprived of its prop Held that, though the affirmation of the validity of

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