Argument for Plaintiff's in Error.

Mr. George F. Edmunds and Mr. D. J. Jewett (with whom was Mr. Henry H. Denison on the brief) for plaintiffs in

error.

On the trial of this case, the plaintiffs in error asked the trial court to give the following instructions: "The court is requested to declare the law to be, that, under all the documentary evidence in the case, there was in 1823 no legal nor equitable title in Samuel Hammond to any part of the land in what is known as United States survey No. 2500, in the city of St. Louis, and for that reason (having no reference to any other) no title, legal or equitable, to any part of said land, was acquired by the purchasers under the levy and sale by Sheriff Walker, on execution against said Hammond, in September and October, 1823, as put in evidence by defendants in this case." This instruction was given by the trial court, but was overruled by the Supreme Court.

The defendants also asked the trial court to give, and that court gave the following instruction: "When the patent to Joseph Hunot, or his legal representatives, read in evidence by defendants, was issued, the same related at least as far back as the time of the passage of the Act of Congress of April 26, 1822, if not to June 23, 1819, which is the time the field survey was made of the land for which said patent was issued." This instruction was given by the trial court, and was sustained by the Supreme Court of Missouri, as appears by their opinion.

Thus it appears that the vital question at issue, fatal to one side or the other, is the proper construction and meaning, the force and effect, of the Act of Congress of February 17, 1815, before referred to, and known as the New Madrid Act. That is to say, whether or not there was on the 8th day of October, 1823, any title out of the United States by virtue of the provisions of said act, that would be called an equity under the laws of Missouri, and subject to sale on execution.

It also fully appeared by the opinion of the Supreme Court of Missouri, that in giving judgment against the rights claimed by the plaintiffs in error, under the said New Madrid statute,

Opinion of the Court.

they construed the force and effect of that statute, and denied to the plaintiffs in error the right they claimed under it, and, as plaintiffs allege, misconstrued said statute so as to give rights to the defendants in error under it, to which they were not entitled under the provisions of said law.

The case of Murdock v. The City of Memphis, 20 Wall. 590, is considered a leading case upon the question of jurisdiction, and in that case this court says (p. 637): Plaintiffs claim a right under an act of the United States which was decided against them by the Supreme Court of Tennessee, and this claim gives jurisdiction to this court. Of course, the right claimed must involve the construction of a statute of the United States. The plaintiffs in error here claim a right to this land under the proper construction of the before named New Madrid statute. See also Rector v. Ashley, 6 Wall. 142; Lessieur v. Price, 12 How. 59; Gibson v. Chouteau, 13 Wall. 92.

Mr. J. B. Henderson for defendant in error. Mr. James L. Lewis also filed a brief for same.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

It is well settled that where the Supreme Court of a State decides a Federal question in rendering a judgment, and also decides against the plaintiff in error upon an independent ground not involving a Federal question and broad enough to maintain the judgment, the writ of error will be dismissed without considering the Federal question. Hopkins v. McLure, 133 U. S. 380; Hale v. Akers, 132 U. S. 554; Henderson Bridge Co. v. Henderson City, 141 U. S. 679.

Tested by this rule,

The writ of error must be dismissed, and it is so ordered.

Syllabus.

NEW ORLEANS v. NEW ORLEANS WATER WORKS

COMPANY.

CONERY v. NEW ORLEANS WATER WORKS

COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

Nos. 632, 639. Argued November 2, 3, 1891.- Decided December 14, 1891.

If it appear in a case, brought here in error from a state court, that the decision of the state court was made upon rules of general jurisprudence, or that the case was disposed of there on other grounds, broad enough in themselves to sustain the judgment without considering the Federal question, and that such question was not necessarily involved, the jurisdiction of this court will not attach.

Before this court can be asked to determine whether a statute has impaired the obligation of a contract, it must be made to appear that there was a legal contract subject to impairment, and some ground to believe that it has been impaired.

In order to constitute a violation of the constitutional provision against depriving a person of his own property without due process of law, it should appear that such person has a property in the particular thing of which he is alleged to have been deprived.

The contract between the city of New Orleans and the Water Works Company, which forms the basis of these proceedings, was void as being ultra vires; and, having been repudiated by the city, cannot now be set up by it as impaired by subsequent state legislation. A municipal corporation, being a mere agent of the State, stands in its governmental or public character, in no contract relation with its sovereign, at whose pleasure its charter may be amended, changed or revoked without the impairment of any constitutional obligation; but such a corporation, in respect of its private or proprietary rights and interests, may be entitled to constitutional protection.

There was no contract between the city and the Water Works Company, which was protected against state legislation by the Constitution of the United States.

The repeal of a statute providing that a municipal government may set off the taxes of a water company against the company's rates for water, and the substitution of a different scheme of payment in its place, does not deprive the municipality of its property without due process of law, in the sense in which the word "property" is used in the Constitution of the United States.

Statement of the Case.

THE court stated the case as follows:

This was a motion to dismiss the writs of error in these cases upon the ground that no Federal question was involved. The suit was originally begun by the filing of a petition in the Civil District Court for the parish of Orleans by Edward Conery, Jr., and about forty others, resident tax-payers of the city of New Orleans, against the New Orleans Water Works Company and the city, to enjoin the city from making any appropriations or drawing any warrants in favor of the Water Works Company under a certain contract set forth in the bill. The petition set forth in substance

1. That the legislature in 1877 incorporated the New Orleans Water Works Company for the purpose of furnishing the inhabitants of the city with an adequate supply of pure water, granting it the exclusive privilege of furnishing water to the city and its inhabitants, by means of pipes and conduits, for fifty years from the passage of the act; that the eleventh section of the act provided that the city should be allowed to use all water for municipal purposes free of charge, and in consideration thereof the franchises and property of the company should be exempt from taxation, municipal, state or parochial; that in 1878 the act was amended in such manner as to make the company liable to state taxes; and that the act was accepted by the city, by the Water Works Company and by all others interested, and the property purchased by the city from the Commercial Bank was transferred to the corporation.

2. That at the time the company was incorporated it was known by every intelligent person in the State that the legislature had no power to exempt property from taxation, except such as was used for church, school or charitable purposes; that for several years the Water Works Company supplied the city with water, and the city demanded of the company no taxes; that in the year 1881 the city brought suit against the company for the sum of $11,484.87, taxes assessed upon its property for that year; that the Water Works Company reconvened in that suit and demanded payment for the water

Statement of the Case.

it had furnished; that in the Civil District Court, where the case was tried, judgment was rendered in favor of the city for the taxes, and also in favor of the company against the city for the value of the water supply for that year, namely, $40,281.87; that the city appealed, and in the Supreme Court the judgment in favor of the city was affirmed, but the judg ment in favor of the company was reduced to $11,484.87, the exact amount of the taxes for that year; and that the Supreme Court decided that, under the act of 1877, the company had no right to recover from the city any sum for the water supply greater than the city taxes for that year.

3. That the company, in 1884, procured an act of the legislature, providing that the city should be required to pay the company the value of all the water it had supplied or should supply during any year for which taxes had been levied for municipal purposes; that unless the city should provide and appropriate a sum sufficient for this purpose the company should not be compelled to deliver water to it; that the taxes imposed should not be exacted until the city should have provided for the payment of the water supply for the same year; and that the city should be empowered to contract with the company, and determine upon the terms and conditions, and fix a price for obtaining from said company such supply of clear or filtered water.

4. That, acting under this statute, the city council, in September, 1884, passed an ordinance, No. 909, authorizing the mayor to enter into a contract with the company, and in pursuance thereof the mayor did enter into such contract, binding the city, during the whole of the remainder of the charter of the company, to pay it the sum of $60 for every fire-plug, fire-hydrant and fire-well connected with the mains or pipes of the company, "of which there are now 1139, and which number shall ever be the least measure of the annual sum to be paid said company," and to pay $60 each for every additional hydrant, etc. This contract was executed October 3, 1884.

5. That said ordinance, No. 909, and said contract were not authorized by the act of 1884; that the legislature did not

VOL. CXLII-6