Bienville Water Supply Co. v. Mobile, 175 U.S. 109 (1899)

Counsel for Parties.

BIENVILLE WATER SUPPLY COMPANY v. MOBILE.

APPEAL from the circuit court of the united states for the

SOUTHERN DISTRICT OF ALABAMA.

No. 868. Submitted October 10, 1899. — Decided November 6,1899.

The Bienville Water Supply Company was a corporation organized under the laws of Alabama, and was authorized thereby to build water works in Mobile and to use the streets of that city for water purposes. The city and that company were authorized to contract together for the pur - pose of supplying the city with water. In the contract made between them under this authority there was no express provision for furnishing the inhabitants of the city with water, and no stipulation by the com - pany that it would do so, though it was clear that the parties contem - plated that the company would contract with the inhabitants to supply them with water for domestic purposes. The city was also authorized by the legislature to build or otherwise acquire water works of its own to supply water to itself and its inhabitants for the extinguishment of fires, and for sanitary and domestic purposes, and in its contract with the Bienville Company the city did not agree not to do so. It did agree to pay the company monthly for a certain number of hydrants supplied by it, but there was no averment on the part of the company that the city had repudiated said obligation or refused to make such stipulated payments, or intended to do so. The company filed a bill in equity against the city to enjoin it from making or carrying out any other contract for supplying water to its inhabitants, or for constructing a system of water works for that purpose during the continuance of said contracts and from building or acquiring a system of water works to bring water into the city during such continuance. To this bill the city demurred. The bill was dismissed. Appeal being taken to this court, a motion was made to dismiss it, joined with a motion to affirm. Held, that as there were no facts averred showing that the city had violated, was violating, or intended to violate its contracts with the Bienville Company, and as there was no legislation to that end, the bill was properly dismissed in the court below; and as there was color for the motion in this court to dismiss, the motion to affirm would be sustained.

Motion to dismiss or affirm.

The case is stated in the opinion.

B. B. Boone and Mr. E. L. Bussell for the motion.

D. P. Bestor and Mr. B. H. Clarite opposing.

Mk. Chief Justice Fuller delivered the opinion of the court.

This was a bill in equity filed in the Circuit Court of the United States for the Southern District of Alabama by the Bienville Water Supply Company against the city of Mobile and its mayor to enjoin defendants from making or carrying out any contract for supplying water to the inhabitants of the city or for constructing a system of water works for that purpose during the continuance of certain contracts between complainant and the city, made parts of the bill, and from building or acquiring a system of water works to bring water into the city during such continuance.

The parties were all citizens of Alabama, but complainant invoked the jurisdiction of the Circuit Court on the ground that the case was one arising under the Constitution of the United States, in that the contracts between it and the city were violated and impaired in the premises.

Defendants demurred, assigning special causes, among which were the following:

“ (1) Because said bill, taken in connection with Exhibits ‘A ’ and ‘ B, ’ made a part thereof, shows that no contract was made between the city of Mobile and the Bienville Water Supply Company as to the rates to be charged the inhabitants of said city for water, but that said contract merely fixed a maximum rate that said water company was to charge the inhabitants of said city of Mobile.

“ (2) Because said bill of complaint shows that said city of Mobile was specially authorized and empowered by its charter and by the act of the general assembly of Alabama approved November 30, 1898, (and of which said act this court will take judicial notice,) to buy or to build, erect and maintain, and to operate water works for the supply of its inhabitants with water, and for the extinguishment of fires, and for sanitary, domestic and other purposes.

“ (3) Because there is nothing shown or alleged in said bill of complaint and in said Exhibits ‘A ’ and 1 B, ’ made a part thereof, which precludes or estops the city of Mobile from

BIENVILLE WATER SUPPLY CO. v. MOBILE. Ill

buying, building, erecting, maintaining and operating a system of water works.

“ (4) Because said Exhibits ‘A ’ and ‘ B, ’ made a part of said bill of complaint, show that the only obligation resting upon and binding upon said city of Mobile is that it shall pay to said Bienville Water Supply Company the sum of fifty dollars ($50.00) each per annum, payments to be made monthly, for two hundred and sixty fire hydrants placed on the streets of said city by said water supply company until the expiration of said contract on July 1, a .d. 1900, and it is not alleged or charged in said bill of complaint that the city of Mobile has or intends to repudiate its obligation to pay for said two hun - dred and sixty fire hydrants at the rate of fifty dollars each per annum, payments to be made monthly. ”

“ (8) Because said bill of complaint fails to allege any facts which show that the city of Mobile has or intends to do or commit any act which will impair the said contract between the city of Mobile and the Bienville Water Supply Company, and which said contract is made a part of the bill of complaint.

“ (9) Because it is shown upon the face of said bill of com - plaint that the city of Mobile did not grant the complainant the franchise to lay its said water mains and pipes in the city of Mobile, but that it was done by the general assembly of Alabama, and from which it appears that said city of Mobile had no lawful authority to grant or to enter into a contract with complainant, conferring thereby the exclusive right or privilege of supplying water to the inhabitants of said city of Mobile. ”

The court sustained the demurrer on the foregoing grounds and gave complainant fifteen days in which to amend, and, no amendment having been made, dismissed the bill. From that decree an appeal to this court was allowed and perfected, and motions to dismiss or affirm submitted.

The charter provided that the city might contract for, build, purchase or otherwise acquire public works subject to the ap - proval of a majority vote of the citizens of Mobile at a special election called therefor, and in July, 1897, such an election was held, and a majority of the votes cast were in favor of the city contracting for or otherwise acquiring water works to be owned and operated by the city and the issuing of bonds to pay for the same. The act of November 30, 1898, authorized the issuing of bonds for that purpose. It was further averred that acting under and by virtue of the power granted by the charter and the act of November 30, the city had entered into a contract to have a system of water works built, and that the building of the same was now going on, and that it had made a contract with certain persons to take said bonds, who had already taken and paid for a part of them. Complainant con - tended that the city had no legal right to impair the value of its plant and to destroy or diminish its income therefrom, which would be the effect of the city’s action in building water works and furnishing water to its inhabitants, and it was averred that defendant was insolvent, and that the only way com - plainant could protect itself was through the interposition of a court of equity. It was not asserted by complainant that it had been granted an exclusive franchise to furnish water to the city and its inhabitants, but that under the contracts the city had no right to furnish water to other persons or to build or acquire a system of water works to supply water to itself and its inhabitants, and that to do this was a violation thereof.

The Circuit Court observed that the city of Mobile granted complainant no rights or privileges whatever, but that the legislature of the State granted it the right to build water works and to use the streets of the city for water purposes, and authorized complainant and the city to contract together for the purpose of supplying the city with water. The con - tract was made, but there was no express provision in it for furnishing the inhabitants with water and no stipulation by complainant that it would do so, though it was clear that the

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parties contemplated that complainant would contract with the inhabitants to supply them with water for domestic pur - poses, since it was stipulated that complainant should not charge for water so supplied higher rates than those specified therein. On the other hand, the city was authorized and em - powered by its charter and the act of the legislature of No - vember 30, 1898, to build or otherwise acquire water works of its own to supply water to itself and its inhabitants for the ex - tinguishment of fires and for sanitary and domestic purposes, and the city in its contracts with complainant did not agree not to do so. It did agree to pay complainant for a certain number of hydrants erected and supplied by it, and to make the payments monthly, but there was no averment that the city had by act or word repudiated its obligation or failed or refused to make the payments stipulated for, or that it intended to do so.

In short, there were no facts averred showing that the city had violated, was violating, or intended to violate, its contracts with complainant, and there was no legislation to that end. Such being the state of the case, the Circuit Court did not err in dismissing the bill, and as there was color for the motion to dismiss, the motion to affirm will be sustained.

Decree affirmed.

In re BLAKE AND OTHERS, Ex parte.

No number, origi nal.

Application for leave presented October 30,1899. — Denied November 13,1899.

In the opinion, among other things, it was said: “ We ad - judge that when the general property and assets of a private corporation, lawfully doing business in a State, are in course of administration by the courts of such State, creditors who are citizens of other States are entitled, under the Constitution of the United States, to stand upon the same plane with cred - itors of like class who are citizens of such State, and cannot be denied equality of right simply because they do not reside in that State, but are citizens residing in other States of the Union. ”

The judgment was in these terms: “ The final judgment of the Supreme Court of Tennessee must be affirmed as to the Hull Coal and Coke Company, because it did not deny to that corporation any right, privilege or immunity secured to it by the Constitution of the United States. As to the other plain - tiffs in error, citizens of Ohio, the judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion ; and it is so ordered. ”

To this decree Blake and Rogers, Brown and Company duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance.

Mr. Heber J. May and Mr. Tully R. Cornicle filed a brief for petitioners.

Mr. S. C. Williams and Mr. John W. Green were allowed to file a brief in opposition.

Me. Chief Justice Fullee, after making the above statement of the case, delivered the opinion of the court.

The writ of mandamus cannot be issued to compel a judicial tribunal to decide a matter within its discretion in a particu - lar way, or to review its judicial action had in the exercise of legitimate jurisdiction, nor be used to perform the office of an appeal or writ of error. And it only lies, as a general rule, where there is no other adequate remedy. As respects the Federal courts, it is well settled that where the mandate leaves nothing to the judgment or discretion of the court below, and that court mistakes or misconstrues the decree or judgment of this court and does not give full effect-to the mandate, its action may be controlled, either upon a new appeal or writ of error if involving a sufficient amount, or by writ of mandamus to execute the mandate of this court. City Bank of Fort orth n. Hunter, 152 U. S. 512; In re Sanford Fork and Tool

Company, 160 U. S. 247; In re Potts, 166 U. S. 263.

Nevertheless, without inquiring whether the conclusions of the Supreme Court of Tennessee were or were not in harmony with the views expressed by this court, we are of opinion that the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error and not by mandamus. The remedy on error is not only entirely adequate and open to be sought unrestrained by the amount involved, but in respect of dealing with state tribunals is manifestly the proper remedy.

That it is adequate under § 709 of the Revised Statutes is clear. Stanley n. Schwalby, 162 U. S. 255, a case on a second writ of error to the state court, in which the statutes and decisions bearing on the subject are fully considered. And that it should be resorted to when the action of the state courts is complained of is equally plain. Assuming that the question of the form of the proceeding which this court might adopt to enforce the execution of its own mandates in the courts of the United States is one of practice merely, and either mode might be pursued, as ruled by Mr. Chief Justice Taney in Perkins v. Fourniquet, 14 How. 328, 330, we think the summary character of the proceeding by mandamus renders it inappropriate in respect of the courts of another jurisdiction.

By the thirteenth section of the judiciary act of September 24,1789, c. 20,1 Stat. 81, this court was clothed with the power to issue “ writs of mandamus in cases warranted by the prin - ciples and usages of law, to any courts appointed, or persons holding office, under the authority of the United States; ” and this was carried forward into § 688 of the Revised Statutes. And it was ruled in Graham n. Norton, 15 Wall. 427, that “ this express authority to issue writs of mandamus to Na - tional courts and officers has always been held to exclude authority to issue these writs to state courts and officers; ” ex - cepting “ where they have been issued as process to enforce judgments.” In Gordon v. Longest, 16 Pet. 97, which was a writ of error to review the action of a state court wrongfully refusing to remove a case into the Circuit Court, Mr. Justice McLean intimated that mandamus might lie to compel action by the state court, but the remark was purely obiter and can - not be regarded as authoritative.

By the fourteenth section of the judiciary act, Circuit Courts were vested with power “ to issue writs of scirefacias, . . . and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions, and agreeable to the principles and usages of law; ” which was reenacted as section 716 of the Revised Statutes. In Bath County v. Amy, 13 Wall. 244, it was held that the Circuit Courts had no power to issue writs of mandamus to state courts, by way of original proceeding, and where the writ was neither necessary nor ancillary to any jurisdiction which the court then had.

But our attention has been called to no case in which this court has exercised jurisdiction by mandamus under circum - stances similar to those supposed to exist here; while there are cases in the Circuit Courts which illustrate the propriety of declining to do so.

In Ladd v. Tudor, 3 Wood. & Min. 325, 332, which was an application for a mandamus to compel a state court to remove a cause to the Circuit Court, Mr. Justice Woodbury said : “ Some doubt might exist, whether a mandamus to a state court from this tribunal organized under another government, was a proper remedy. It has been settled that a state court cannot issue a mandamus to an officer of the United States. McClung v. Silliman, 6 Wheat. 598. In 16 Pet. 97 the remedy was by a writ of error to reverse the first judgment in the state court. And where another remedy lies, a mandamus is held to be improper. 10 Johns. 484. But Cooke, 160, seems to countenance the present cause. Brown v. Crippin, 4 Hen. & M. 173, quoted in some of the digests for it, seems, on ex - amination, to be a case of a mandamus by the highest state court to the common pleas in the same State, to remove such a case, and not one from a court of the United States. . . In McIntire v. Wood, 7 Cranch, 504, it was held that a man - damus did not lie from the Circuit Court to an officer of the United States; and though that speaks generally of the power of this court to issue it in order to sustain its jurisdiction, and the decision in Cooke rests on that power of superior courts to enforce their jurisdiction over inferior ones by man-

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damus, yet it is very questionable whether a case like the present ought to be considered within that principle. It is a correct principle between inferior and superior courts of the same government, but difficult to be upheld between courts established by separate governments. If necessary to decide on this, it might require more grave consideration before sustaining it in cases like this, because being a mode of redress very likely to lead to jealousies and collisions between the States and General Government of a character anything but desirable. ” The Justices n. Murray, 9 Wall. 274, was a writ of error to the Circuit Court for the Southern District of New York from a judgment for a peremptory mandamus rendered against the justices of the Supreme Court of New York for the Third District to remove a cause, but Mr. Justice Nelson stated in a note on page 276, that: “ The alternative and per - emptory mandamus against the Supreme Court of New York was allowed by consent of the counsel for the defendants, with a view to present the question raised and decided in the case. The Circuit Court had refused to issue it against the court, and issued it only against the clerk. This is stated to prevent the case from being cited as an authority for the power, and with - out intending to express any opinion on this subject. ” And see Hough v. Western Transportation Company, 1 Bissell, 425, Drummond, J. ; Fish v. Union Pacific Railroad Company, 6 Blatchford, 362, Blatchford, J. ; High on Extr. Remedies, Third Edition, § 227 et seg., and cases cited.

Leave to file petition denied.