Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901)

The village of Rogers Park was from November 12, 1888, and until April 4, 1893, a municipal corporation organized p. 625under the laws of Illinois. At the latter date it was annexed to the city of Chicago.

It was provided that in consideration of the public benefit to be derived therefrom the village of Rogers Park, Illinois, granted the exclusive right and privilege for a period of thirty years from the time the ordinance should take effect “unto H. E. Keeler, his successor and assigns, of erecting, maintaining and operating a system of waterworks in accordance with the terms and provisions ” of the ordinance. There was a grant of the use of the streets and alleys for mains and conduits, and power given to extend the system to new territory, if any should be acquired by the village. There were provisions prescribing the character of the system to be constructed, and that the village should pay “ an annual rental for fire protection, for vol . clxx x —40 p. 626less than five miles of mains within the corporate limits of said village, for the aforesaid period of thirty years, at the rental rate of five hundred and seventy-five ($575) dollars for each mile of main, to be payable semi-annually.” There were also provisions for payment of taxes by the company, the flushing of sewers, and the maintenance of fountains, for the supply of water to the inhabitants, the quality of water and the manner of the supply before prescribed, and for the acceptance in writing by the company of the terms of the ordinance. Provision was also made for the purchase of the system by the village.

The plaintiff in error claimed in its answer that said ordinance of the village of Rogers Park constituted a contract with plaintiff in error by which it had the right to charge the rates contained in section 12, and that the ordinance of the city of Chicago reducing their rates impaired such contract and violated not only the constitution of the State of Illinois, but also p. 627violated section 10, article 1 of the Constitution of the United States, as well as the Fourteenth Amendment.

At the time of the passage of the ordinance in November, 1888, by the village of Rogers Park, counsel for plaintiff in error says “ two general acts were in force in Illinois, which related to the power of municipalities to pass ordinances for waterworks to be built and operated by private enterprise.” The first is as follows: ‘ An act entitled ‘ An act to enable cities, incorporated towns and villages to contract for a supply of water for public use, and to levy and collect a tax to pay for the water so supplied.’ Approved April 9,1872.” In force July 1,1872. Laws, 1871-2, p. 271. This title is as amended by act approved June 26, 1885, in force July 1, 1885, p. 64. “ Sec . 1. Be it enacted by the People of the State of Illinois, p. 628represented in the General Assembly, That in all cities, incorporated towns and villages where waterworks have been or may hereafter be constructed by any person or incorporated company, the city, town or village authorities in such cities, incorporated towns and villages may contract with such person or incorporated company for a supply of water for public use for a period not exceeding thirty years.” As amended by act approved June 26, 1885. In force July 1,1885, Laws, 1885, p. 64.

No. 298. Pacif ic Coast Steams hip Comp an y v . Pande . Error p. 636to the District Court of the United States for the District of Alaska. Motions to dismiss or affirm submitted March 5, 1901. Decided March 11, 1901. Per Curiam. Dismissed for the want of jurisdiction on the authority of Thorp n . Bonnifield, 177 U. S. 15; Shute v. Keyser, 149 U. S. 649. J/r. J. J. Darlington for the motions to dismiss or affirm. No brief filed in opposition.

No. 539. Schwar tz v . Duss . Third Circuit. Granted February 11,1901. Mr. George Shiras, 3d, and Mr. S. Schoyer for p. 638petitioners. J/r. D. T. Watson and J/?. Johns McCleave opposing. (Mr. Justice Shiras took no part in the consideration and disposition of this application.)

The growth of the Nation during the passing of a hundred years has been celebrated quite as much perhaps in felicitation over results as in critical analysis of underlying causes, but this day is dedicated to the commemoration of the immortal p. 646contributtons to the possibilities of that progress, rendered by the consummate intellectual ability of a single individual exerted in the conscientious discharge of the duties of merely judicial station.

And the place where we are assembled is of all places the most fitting for these ceremonies; for it was here, in the capital of the country he loved so devotedly and served so faithfully, that he was attended by those patient and achieving years during which his labors enrolled his name among the few immortal benefactors of mankind. It is also eminently fitting p. 650that such an occasion should be honored by the presence of the Chief Magistrate and the members of the Cabinet, whose subjection to the law was determined by him; by the presence of members of that illustrious tribunal the vast extent of whose rightful jurisdiction was determined by him; by the presence of distinguished Senators and Representatives, representing in Congress the States whose proper and abiding place in our governmental system was determined by him ; and by the presence of citizens of the country which under his forming hand, instead of becoming a dissoluble confederacy of discordant States, became a great and indissoluble nation, endowed with all the powers necessary to enable it not only to protect itself against enemies at home or abroad, but also to accept and discharge the splendid and ennobling mission which had been confided to it in the divine purpose for the education of the world, and which he recognized when first of all men he spoke of the Empire of America—that of securing to the whole American continent, “ government of the people, by the people, and for the people.”

witnessed what is probably the most far-reaching and certainly the most romantic drama of history—the colonization of America. The landing at Jamestown had followed the dawn of the seventeenth century by only seven years, and the Pilgrims having landed in Massachusetts in 1620 and William Penn having landed in Pennsylvania in 1683, it is reasonably accurate to consider that the essential and formative labors of the first p. 651settlers extended over and were comprised within the hundred and fifty years preceding John Marshall’s birth, and that a like period of a hundred and fifty years extends from his birth to the day on which we are assembled to do honor to his memory.

And as these different nationalities were commingled and were rapidly being fused into one people, the professors of all the different religious creeds gathered here were united in their devotion to the land which gave to each of them the right to freedom of religious worship; and when John Marshall was born the American colonists, thinly scattered along the Atlantic coast from Massachusetts Bay to Georgia, were as one people slowly marching inland to take possession of the continent, p. 654and to establish a great nation resting upon the sublime truth—true yesterday, true today, and true forever—that “ all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among these are life, liberty and the pursuit of happiness.”

That was indeed a time which “ tried men’s souls ” and tried, almost to the point of breaking, the great heart of him who bore alone the responsibility, which he could not share with any other, for the success of the war, and the maintaining of that independence which had been so bravely proclaimed. We now know something of the fortitude Washington displayed in that long and trying winter, and while we never can enter into the p. 657bitterness of soul he must have experienced from the cabals he discovered, the ingratitude he ignored, the calumny he withstood, the sufferings he could not prevent, we are sure he often rose to the true appreciation of the great work he was doing for us and for all men ; and pacing his lonely chamber when all the camp around him was wrapped in silence and in slumber “ save where on some rampart a ragged sentinel, crunching the crisp snow with bleeding feet, kept watch for liberty,” he must have known it was ordained that “ the gates of hell should not prevail ” against him, for that was the Continental army and those were the hills of Valley Forge.

From Valley Forge John Marshall followed the varying fortunes of Washington’s command through the year 1778 and on June sixteenth, 1779, he was with General Wayne in the assault and capture of Stony Point, an achievement which vol . clxx x —12 p. 658Charles Lee declared was “the most brilliant in the whole course of the war.”

However improbable such an occurrence may now appear, it is undoubtedly true that Mr. Marshall changed the current of opinion upon a grave constitutional question by a speech in Congress, although it is true that his argument in the Bobbins case so far from being an ordinary speech in debate has all the merit and nearly all the weight of a judicial decision. It separates the executive from the judicial power by a line so distinct and a discrimination so wise that all men can understand and approve it. He demonstrated that, under the circumstances, the p. 661surrender of Robbins to the British authorities was an act of political power, which belonged to the executive department alone; and before the session closed he was privileged to teach his associates as well as his successors in Congress, by a striking example, how, when the convictions of the individual conscience conflict with the behests of party, a true patriot will follow the former, in utter disregard of party discipline, and of possible calamitous consequences to his future political advancement. Although a strong supporter of President Adams’ administration, Mr. Marshall voted without hesitation, contrary to the earnest desire of the president and in direct opposition to all those with whom he was in general political accord. Believing that the second section of “ The Alien and Sedition Laws ” ought to be repealed, he voted accordingly, and it has long since been universally acknowledged that he was right. Among other lessons he had learned from Washington was this: “ The spirit of party unfortunately is inseparable from our nature, having its root in the strongest passions of the human spirit, but in governments of the popular form it is seen in its greatest rankness and is truly their worst enemy.”

It is hardly possible for us at the beginning of the century just opening to appreciate the difficulties and the dangers which confronted the nation at the beginning of the century which has just closed. We are now secure of citizenship in a great, powerful and free nation, whose authority upon all questions affecting the national welfare is subject only to such constitutional limitations as the sovereign people have imposed. We are, in very sober truth, rich in resources beyond the dreams of any visionary, with all the material blessings the heart of man p. 664can desire, clad in full panoply for peace or war, and enjoying a moral leadership of all the nations of this vast and undeveloped continent, which is destined soon to be the home of hundreds of millions of people of all creeds and of all races, blended and fused into a peaceful confederacy of American republics. How different was the outlook a hundred years ago ! A small and scattered population was then slowly making its way from the Atlantic coast into the wilderness of the valley of the Ohio, and thereby separating itself by the almost impassable barrier of the Alleghanies from the settlements on the seaboard. The Constitution, as well as the Government created by it, was only twelve years old, and in that brief period eleven amendments of its provisions had been found to be necessary. A general distrust existed of its wisdom, and in many States there was an active and bitter hostility to it, magnifying its few imperfections and denying its manifold and transcendent merits. Party spirit, then as ever since our greatest peril, exulted in the prospect that it would soon be apparent that the Constitution was incapable of solving the almost insoluble problem, of reconciling the rights of thirteen self-governing and independent communities, each differing in many respects from every other, with such sovereignty in the General Government as was indispensable to the perpetuity of the free institutions confided by the fathers to its sheltering care, in those noble and memorable words graven by them, as with a pen of iron, over the entrance to the sources of the fundamental law, and which cannot be too often repeated, in which they declared that the Constitution was “ ordained to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

To those memorable words are to be added these others equally memorable : “That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true ; ” and these declarations guided him, as with tea-con lights, through his entire judicial career. Of these propositions no criticism could really be offered, nor from them was p. 666any appeal to either passion or prejudice possible. They enabled the Chief Justice to rear upon them that enduring structure of the true meaning of the Constitution which is among the most priceless possessions of our inheritance, and which will enable coming generations to enjoy our privilege of living under a government of liberty regulated by law.

By a course of reasoning equally irresistible he subjected the lawfulness of the ministerial acts of members of the Cabinet to p. 668the decision of the courts: “ The Government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to secure this high appellation if the laws furnish no remedy for the violation of a vested legal right. The very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is accountable to his country in his political character and to his own conscience. To aid him in the performance of those duties he is authorized to appoint certain Cabinet officers, and so long as the subjects of their action are political, there exists no power to control their discretion, which is the discretion of the President. But wThen Congress imposes upon a Cabinet officer other duties and directs him to perform certain acts, when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law; is amenable to the law for his conduct; and cannot at his discretion sport away the vested rights of others.”

Mr. Justice Story tells us that these epoch-making judgments were “ the results of his own unassisted meditations.” They established upon a basis which can never be successfully assailed that both the legislative and executive departments were subject to the law, which is the only enduring basis of government in the democratic ages. If the law could lay no restraining hand upon Congress, Congress would be a despotism. If the law could lay no restraining hand upon the President and the members of his cabinet, they would be despots. It is because neither the President nor Congress, nor the highest nor the humblest citizen of the land, is either above the restraints, or beneath the protection, of the law that ours is destined to be the final form of government, as notwithstanding all its defects, it is by far the best form of government under which men have ever been permitted to live. For of law in its widest sense, including the processes of evolution, not only in the material universe, but in the moral and spiritual universe as well, the familiar words o Hooker are always true: “ There can be no less acknowledge p. 669than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempt from her power.”

Having settled the undoubted right of Congress to determine, in its unfettered discretion, what means were necessary to give effect to the powers the Constitution conferred upon it, he next addressed himself to securing for the means thus employed absolute freedom from interference by the authority of any State. He said that while there was no express provision on the subject the proposition rested “ on a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rending it into shreds. If the States may tax one instrument employed by the General Government they may tax all the means employed by it, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their Government dependent on the States. The question is indeed a question of supremacy. The court has bestowed on the p. 670subject its most deliberate consideration. The result is a conviction that the States have no power by taxation or otherwise to retard, impede, burden, or in any manner control the operation of the constitutional laws, enacted by Congress, to carry into execution the powers vested in the General Government. This is, we think, the inevitable consequence of that supremacy which the Constitution has declared.”

During Mr. Webster’s argument on behalf of Dartmouth College he faltered and said: “ It is, as I have said, a small college—and yet there are those who love it; ” and here the feelings which he had thus far succeeded in keeping down broke forth. Every one saw it was wholly unpremeditated a pressure on his heart which sought relief in tears. “ The court-room p. 673during those two or three minutes presented an extraordinary spectacle. Chief Justice Marshall, with his tall and gaunt figure, bent over as if to catch the slightest whisper. Mr. Justice Washington also leaned forward with an eager, troubled look, and the remainder of the court pressed as it were towards a single point.”

He had indeed completed the circle of a good man’s duty as husband and father, as citizen and soldier, as statesman and jurist; and he has left to all the coming generations of his countrymen an inspiring example of a happy union of wisdom and virtue and patriotism. Two generations of American citizens have come and gone since the nation stood by his open grave, and if we had not profited as we ought to have done by the lessons of his life, we have not wholly failed to realize p. 675the lofty ideals he cherished for us. We are in a far greater degree than he foresaw a powerful, prosperous and united people, loyally accepting his construction of the fundamental law as the source of the national life and still venerating the Constitution in his own measured words, as “ a sacred instrument; ” and we have lived to see diffused through all sections of our country and among all classes of our countrymen such generous measures of political equality, of social freedom, and of physical comfort and well-being as were never dreamed of on the earth before.

But while our hearts are full of gratitude for these unexampled material blessings, let us, on this day of all days, when the memories of the fathers cluster so closely about us, acknowledge, as they always acknowledged, that nations cannot live by bread alone. It was because of such conviction that they cherished, and we have heretofore cherished, the Christian ideal of true national greatness; and our fidelity to that ideal, however imperfect it has been, entitled us in some measure to the divine blessing, for having offered an example to the world for more than an entire generation of how a nation could marvellously increase in wealth and strength and all material prosperity while living in peace with all mankind. And although many good and thoughtful people are just now greatly troubled at what seems to them an evil promise of the future, we must never for a moment, in dark days or in bright, despair of the republic. Differences of opinion may well exist as to the best methods of discharging the grave and serious duties unexpectedly devolved upon us by a war begun with the noble object of helping a struggling people to secure their independence; but let us trust that however we may differ as to methods we all believe that the true glory of America and her true mission in the new century, as in the old, is what a great prelate of the Catholic Church has recently declared it to be: to stand fast by Christ and his gospel; to cultivate not the Moslem virtues of war, of slaughter, of rapine, and of conquest, but the Christian virtues of self-denial and kindness and brotherly love, and that it is our mission, not to harm but to help to a better life every fellow-creature of whatever color and however weak or lowly; and then we may some day hear the benediction : “ p. 676Inasmuch as ye did it to one of the least of these my brethren ye did it unto me.”

Before the adoption of the Constitution, one of the chief defects in the government of the United States was the want of a national judiciary, of which there was no trace other than in the tribunals constituted by the Continental Congress, under powers specifically conferred by the Articles of Confederation, p. 679for the decision of prize causes, or of controversies between two or more States.

On the 24th of September, 1789, the first Congress under the Constitution passed the Judiciary Act, which had been framed by Oliver Ellsworth, then a Senator from Connecticut. That act has always been regarded as a contemporaneous construction of the Constitution ; and, with some modifications, remains to this day the foundation of the jurisdiction and practice of the courts of the United States. It provided that the Supreme Court should consist of a Chief Justice, and of five Associate Justices who should have precedence according to the date of their commissions ; established the Circuit and District Courts ; defined the jurisdiction, original and appellate, of all the Federal courts ; and empowered the Supreme Court to reexamine and reverse or affirm, on writ of error, any final judgment or decree, rendered by the highest court of a State in which a p. 680decision in the case could be had, against a right claimed under the Constitution, laws or treaties of the United States.

My earliest knowledge of the existence of such an autobiography was obtained from a thin pamphlet, published at Columbus, Ohio, in 1848 ; found in an old bookstore in Boston; and containing (besides Marshall’s famous speech in Congress on the case of Jonathan Robbins) only this letter, entitling it “Autobiography of John Marshall.” The internal evidence of its genuineness is very strong; and its authenticity is put almost beyond doubt by a facsimile (recently shown me in your State p. 683Library) of a folio sheet in Marshall’s handwriting, which, although it contains neither the whole of the letter, nor its address, bears the same date, and does contain the principal paragraph of the letter, word for word, with the corrections of the original manuscript, and immediately followed by his signature.

Marshall passed his boyhood and early youth in the country, in a healthful climate and beautiful scenery, fond of field sports and athletic exercises, living in a house containing a good English library, the eldest of a large family of children, under the guidance and in the companionship of a father of strong natural abilities, and to whom, as he used to say, he owed the solid foundation of all his own success in life. As Mr. Binney says. “It is the praise and the evidence of the native powers of his mind, that by domestic instruction, and two years of grammatical and classical tuition obtained from other sources, Mr. p. 685Marshall wrought out in after life a comprehensive mass of learning both useful and elegant, which accomplished him for every station that he filled, and he filled the highest of more than one description.”

President Washington offered Marshall the District-Attor-neyship for the District of Virginia in 1789, and the Attorney-Generalship, and the mission to France, in 1796. President Adams offered him the office of Associate Justice of the p. 686Supreme Court in 1798, upon the death of Mr. Justice Wilson and before appointing Bushrod Washington.

The most important one was the case of Chisholm against the State of Georgia, in which it was held in 1793, by Chief p. 688Justice Jay and his associates, Mr. Justice Iredell dissenting, that the Supreme Court had original jurisdiction of an action brought against a State by a citizen of another State. That decision proceeded upon the ground that such was the effect of the Constitution, established by the people in their sovereign capacity. But it was inconsistent with the view which had been maintained by Marshall in the Virginia convention of 1788; and it was presently, as the Supreme Court has since said, reversed and overruled by the people themselves, in the Eleventh Amendment of the Constitution, which declared that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”

VOL. CLXXX—44 p. 690practice which tends to bring into prominence the subordinate points of view in which they differ, and to obscure the principal point on which they agree; and, while it sometimes makes the report of the case more interesting, tends to impair its weight as a precedent for the determination of future controversies. Under Marshall, all subordinate differences seem to have been settled in conference, or at any rate less often displayed to the public ; and the opinion of the court was usually delivered by one justice, and in the majority of important, and especially of constitutional cases, by Marshall himself. During his time there were few dissenting opinions.

He had not the elegant scholarship of Stowell. But it is not too much to say that his judgments in prize causes exhibit a broader and more truly international view of the law of prize. Upon the question of the exemption of ships of war and some other ships, it was observed by Lord Justice Brett in the p. 692English Court of Appeal in 1880, “ the first case to be carefully considered is, and always will be, The Exchange” decided by Chief Justice Marshall in 1812.

But he gave due weight to the decisions of the courts of the several States, saying, in Elmendorf against Taylor: “This court has uniformly professed its disposition, in cases depending on the laws of a particular State, to adopt the construction which the courts of the State have given to those laws. This course is founded on the principle, supposed to be universally p. 696recognized, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which professed to be governed by principle, would, we presume, undertake to say that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute. On this principle, the construction given by this court to the Constitution and laws of the United States is received by all as the true construction ; and on the same principle, the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Constitution, laws or treaties of the United States.”

In the case of The Thomas Jefferson in 1825, it was decided by a unanimous opinion of the court, delivered by Mr. Justice Story, that the jurisdiction of the courts of admiralty of the United States was limited by the ebb and flow of the tide. But an article published in the New York Review for October, 1838, by one who was evidently intimate with Chief Justice Marshall, tells us: “ He said, (and he spoke of it as one of the most deliberate opinions of his life,) at a comparatively late period, that he had always been of opinion that we in America had misapplied the principle upon which the admiralty jurisdiction depended—that in England the common expression was, that the admiralty jurisdiction extended only on tide waters, and as far as the tide ebbed and flowed ; and this was a natural and reasonable exposition of the jurisdiction in England, where the rivers were very short, and none of them navigable from the sea beyond the ebb and flow of the tide—that such a narrow interpretation was wholly inapplicable to the great rivers of America ; that the true principle, upon which the admiralty jurisdiction in America depended, was to ascertain how far the river was navigable from the sea; and that consequently, in America, the admiralty jurisdiction extended upon our great rivers not only as far as the tide ebbed and flowed in them, but as far as they were navigable from the sea; as, for example, on the Mississippi and its branches, up to the falls of the Ohio. He also thought that our great lakes at the west were not to be considered as mere inland lakes, but were to be deemed inland navigable seas, and as such were subject, or ought to be subject, to the same jurisdiction.” He thus foreshadowed the decision p. 699made in 1851 in the case of The Genesee Chief, by which the decision in The Thomas Jefferson was explicitly overruled.

“ This is a portrait to which,” adds Mr. Binney, “ in everything but the symbols of the youthful soldier, and one or two of those lineaments which the hand of time, however gentle, p. 711changes and perhaps improves, he never lost his resemblance. All who knew him well will recognize its truth to nature.”