1. The power conferred upon Congress by the commerce clause of
the Constitution is exclusive, so far as it relates to matters
within its purview which are national in their character and admit
or require uniformity of regulation affecting all the states. That
clause was adopted in order to secure such uniformity against
discriminating state legislation.
2. Commerce with foreign countries and among the states,
strictly considered, consists in intercourse and traffic, including
in these terms navigation and the transportation and transit of
persons and property, as well as the purchase, sale, and exchange
of commodities. To regulate it as thus defined, there must be only
one system of rules applicable alike to the whole country, which
Congress alone can prescribe.
3. state legislation is not forbidden touching matters either
local in their nature or operation or intended to be mere aids to
commerce, for which special regulations can more effectually
provide, such as harbor pilotage, beacons, buoys, and the
improvement of harbors, bays, and navigable rivers within a state,
if their free navigation under the laws of the United States be not
thereby impaired. Congress, by its nonaction in such matters,
virtually declares that, for the time being and until it deems fit
to act, they may be controlled by state authority. The act of the
State of Alabama, entitled "An Act to provide for the improvement
of the river, bay, and harbor of Mobile," approved Feb. 16, 1867,
is therefore not in conflict with the Constitution.
4. The provision for issuing bonds by the President and
Commissioners of Revenue of Mobile County is not a taking of
private property for public use within the meaning of the
Constitution of Alabama, nor can it be declared invalid although it
may impose upon one county the expense of an improvement in which
the whole state is interested.
5. The harbor board was authorized by that act to provide for
the contemplated improvement by entering into a contract therefor
binding upon the county. If specific performance cannot for any
reason be enforced in favor of the party who is thereunto entitled,
on his completion of the work under the contract, a court of equity
will adjudge that compensation in damages be made to him by the
county.
6. A decree dismissing his bill without prejudice is not a bar
to a subsequent suit for the same cause of action.
Page 102 U. S. 692
By an Act of the General Assembly of Alabama entitled "An Act
for the improvement of the bay and harbor of Mobile," approved Feb.
21, 1860, the collector of customs for the port of Mobile, the
Mayor of the City of Mobile, and the President of the Board of
Revenue for the County of Mobile, and their successors in office,
were appointed
ex officio a board to be styled the Board
of Harbor Commissioners for the purpose of causing the bay and
harbor of Mobile to be deepened and improved. To aid the board in
the performance of its powers and duties, the president and
commissioners of revenue of the county were authorized and required
from time to time, and as the same might be called for by the
board, to issue the coupon bonds of the county and to hand them
over to the board to be sold. The proceeds were to be applied to
the work as its necessities might require and as authorized by the
act. The whole amount of bonds was limited to $800,000. No steps
were taken under the act. Another act was passed Feb. 16, 1867,
entitled "An Act to provide for the improvement of the river, bay,
and harbor of Mobile." The President of the Court of County
Commissioners of Revenue of Mobile County, the Mayor of Mobile, the
president of the Bank of Mobile, the president of the Mobile
Chamber of Commerce, and one citizen of the County of Mobile, to be
appointed by the governor of the state, and their successors in
office, were thereby constituted a board for the improvement of the
river, harbor, and bay of Mobile. The President and Commissioners
of Revenue of Mobile County were, by the second section, required
to issue bonds for $1,000,000, payable as they might deem proper,
to be delivered to the board whenever the latter might require
them, and the court was required to levy and cause to be collected
such tax as might be deemed proper to pay them.
The third and fourth sections are as follows:
"SEC. 3. The said board for the improvement of the river,
harbor, and bay of Mobile are hereby authorized to receive such
bonds and apply them or the proceeds of them to the improvement,
cleaning out, deepening, and widening of the river, harbor, and bay
of Mobile, or any part thereof or the making an artificial
harbor,
Page 102 U. S. 693
and such improvement, cleaning out, deepening and widening or
any part thereof or all of it, or the making an artificial harbor
shall be made in such manner as the said board may direct, and for
that purpose they may make any rules and regulations and asses the
dues or tolls to be collected on vessels or watercrafts and do any
act they may deem proper to effect the objects of this act."
"SEC. 4. That in addition to the foregoing powers, the said
commissioners are vested with the authority to purchase and condemn
lands according to the provision of sec. 13 of an act for the
improvement of the bay and harbor of Mobile, approved Feb. 21,
1860, and to take and receive all moneys, papers, books, records,
and surveys, and all property pertaining to said commissioners, in
said act, and the City of Mobile shall be vested with the title of
all lands made by the deposits of all excavations in the progress
of this work as provided for in said act, and the commissioners
designated in this act, and all officers, clerks, and employees,
shall be subjected to and be held liable to the duties, penalties,
and punishments provided for in the fifteenth section of the said
act."
The harbor board was organized under the provisions of this act,
and on the 24th of June, 1872, it entered into a contract with
Kimball and Slaughter for dredging a channel through Dog River Bar
in the bay of Mobile. The work was to be commenced by the first day
of August, 1872, and completed on or before June 1, 1873. The
harbor board agreed to pay the contractors 49 1/2 cents per cubic
yard of material excavated and removed, and payments were to be
made in bonds of the County of Mobile issued under this act at the
rate of 82 1/2 cents on the dollar.
The work under the contract was completed March 15, 1873, and on
the following day it was accepted by the engineer in charge, whose
action was approved by the board.
Prior to June 1, 1873, the court of county commissioners had
issued to the harbor board two hundred bonds of $1,000 each. The
president of the harbor board admitted, June 5, 1873, that Kimball
and Slaughter were then entitled to seventeen bonds of $1,000 each,
and he delivered a written statement to that effect. The board
delivered eleven bonds to them, July 29, 1873, leaving due to them
six bonds.
Page 102 U. S. 694
Kimball and Slaughter, in their bill filed against the County of
Mobile, claim and aver that after the delivery to them of the
eleven bonds, the board had neither bonds, money, nor other means
to pay them, and that all the two hundred bonds delivered to it had
been applied to the purposes for which they had been issued.
An Act of the legislature of April 19, 1873, limited to the sum
of $200,000 the issue of county bonds to the board and required the
latter to file a statement of its receipts and expenditures with
the Judge of Probate of Mobile County.
On the 25th of November, 1873, the complainants presented to the
court of county commissioners their claim for six bonds of $1,000
each, or their value in money at 82 1/2 cents on the dollar. The
claim was rejected.
The bill avers that on the 8th of December, 1873, the
complainants filed their bill in the Chancery Court at Mobile
against the County of Mobile to compel it to deliver, through the
commissioner of revenue, six bonds to them, or to require it to pay
the moneyed value of the bonds and the interest due thereon; that a
decree was rendered for the complainants, which, on appeal to the
Supreme Court of Alabama, was reversed, mainly upon the ground that
it did not sufficiently appear that the harbor board had not fully
accounted for the two hundred bonds, of $1,000 each, delivered to
it by the Court of Commissioners of Revenue of Mobile County. The
supreme court adjudged that the bill be dismissed without
prejudice.
The following act of the Legislature of Alabama was passed:
"
An Act to close the Accounts and settle the Contracts made
by the Board for the Improvement of the River, Harbor, and Bay of
Mobile."
"SEC. 1. Be it enacted by the General Assembly of Alabama that
it shall be and is hereby made the duty of the President and
Commissioners of Revenue of Mobile County to inquire into the
validity and propriety of all claims which may be presented to them
for work and labor done and materials furnished or services
rendered on any contract or agreement with the said board made or
executed between the fifteenth day of June and the first day of
July, in the year eighteen hundred and seventy-two, for the
improvement
Page 102 U. S. 695
of the river, harbor, and bay of Mobile, under the Act approved
February sixteenth, eighteen hundred and sixty-seven, entitled 'An
Act to provide for the improvement of the river, bay, and harbor of
Mobile,'
provided such claim be presented to said
president and commissioners within six months after the passage of
this act, and upon the same being satisfactorily proved and shown
to be still due and unpaid, it shall be the duty of said president
and commissioners to provide for the payment thereof as of other
claims against the county."
"Approved Feb. 23, 1876."
Under this act, the complainants, April 3, 1876, presented to
the court of county commissioners their claim for six bonds, or
their value at 82 1/2 cents on the dollar. The claim was
rejected.
The complainants pray in their bill that the county be required
to deliver to them six bonds of the county of $1,000 each or pay
their value at 82 1/2 cents on the dollar, with interest from the
completion and acceptance of the work.
The cause came on to be heard upon the pleadings and proofs, and
a decree was rendered in favor of the complainants. The county then
appealed here.
The remaining facts and the assignment of errors are set forth
in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
The several positions taken by the appellant for the reversal of
the decree of the circuit court may be resolved into these four:
1st, that the act of the Legislature of Alabama of Feb. 16, 1867,
"to provide for the improvement of the river, bay, and harbor of
Mobile," is invalid in that it conflicts with the commercial power
vested in Congress; 2d, that if the act be not for this reason
invalid, the expenses for the work authorized by it could not,
under the constitution of the state then in force, be imposed upon
the County of Mobile, the work being for the benefit of the whole
state; 3d, that the right of the complainants to relief is barred
by a previous adjudication in the courts of the state against their
claim; and 4th, that the
Page 102 U. S. 696
case presented by the bill is not one for the cognizance of a
court of equity. Each of these positions merits special
consideration.
1. The Act of Feb. 16, 1867, created a board of commissioners
for the improvement of the river, harbor, and bay of Mobile and
required the President of the Commissioners of Revenue of Mobile
County to issue bonds to the amount of $1,000,000 and deliver them,
when called for, to the board to meet the expenses of the work
directed. The board was authorized to apply the bonds, or their
proceeds, to the cleaning out, deepening, and widening of the
river, harbor, and bay of Mobile, or any part thereof, or to the
construction of an artificial harbor in addition to such
improvement.
In June, 1872, the board of commissioners entered into a
contract with the complainants, Kimball and Slaughter, to dredge
and cut a channel through a designated bar in the bay, of specified
width, depth, and distance, at a named price per cubic yard of
material excavated and removed, and to receive in payment the bonds
of the county, issued under the act mentioned, at the rate of 82
1/2 cents on the dollar. In pursuance of this contract, the work
agreed upon was at once undertaken by the complainants and was
completed by them in March, 1873, and accepted by the board through
its authorized engineer. The amount due to them was paid, with the
exception of seventeen bonds. The board gave them a certificate
that they were entitled to that number of bonds, and, after some
delay, delivered eleven to them. It is to obtain a delivery of the
remaining six, or payment of their value, that the present suit is
brought.
The objection that the law of the state in authorizing the
improvement of the harbor of Mobile trenches upon the commercial
power of Congress, assumes an exclusion of state authority from all
subjects in relation to which that power may be exercised, not
warranted by the adjudications of this Court, notwithstanding the
strong expressions used by some of its judges. That power is indeed
without limitation. It authorizes Congress to prescribe the
conditions upon which commerce in all its forms shall be conducted
between our citizens and the citizens or subjects of other
countries and between the
Page 102 U. S. 697
citizens of the several states, and to adopt measures to promote
its growth and insure its safety. And as commerce embraces
navigation, the improvement of harbors and bays along our coast,
and of navigable rivers within the states connecting with them,
falls within the power. The subjects, indeed, upon which Congress
can act under this power are of infinite variety, requiring for
their successful management different plans or modes of treatment.
Some of them are national in their character, and admit and require
uniformity of regulation, affecting alike all the states; others
are local, or are mere aids to commerce, and can only be properly
regulated by provisions adapted to their special circumstances and
localities. Of the former class may be mentioned all that portion
of commerce with foreign countries or between the states which
consists in the transportation, purchase, sale, and exchange of
commodities. Here there can of necessity be only one system or plan
of regulations, and that Congress alone can prescribe. Its
nonaction in such cases with respect to any particular commodity or
mode of transportation is a declaration of its purpose that the
commerce in that commodity or by that means of transportation shall
be free. There would otherwise be no security against conflicting
regulations of different states, each discriminating in favor of
its own products and citizens, and against the products and
citizens of other states. And it is a matter of public history that
the object of vesting in Congress the power to regulate commerce
with foreign nations and among the states was to insure uniformity
of regulation against conflicting and discriminating state
legislation.
Of the class of subjects local in their nature, or intended as
mere aids to commerce, which are best provided for by special
regulations, may be mentioned harbor pilotage, buoys, and beacons
to guide mariners to the proper channel in which to direct their
vessels.
The rules to govern harbor pilotage must depend in a great
degree upon the peculiarities of the ports where they are to be
enforced. It has been found by experience that skill and efficiency
on the part of local pilots is best secured by leaving this subject
principally to the control of the states. Their authority to act
upon the matter and regulate the whole subject,
Page 102 U. S. 698
in the absence of legislation by Congress, has been recognized
by this Court in repeated instances. In
Cooley v. Board of
Wardens of the Port of Philadelphia, the Court refers to the
act of Congress of 1789, declaring that pilots should continue to
be regulated by such laws as the states might respectively
thereafter enact for that purpose, and observes that
"it manifests the understanding of Congress, at the outset of
the government, that the nature of this subject is not such as to
require its exclusive legislation. The practice of the states and
of the national government has been in conformity with this
declaration, from the origin of the national government to this
time; and the nature of the subject, when examined, is such as to
leave no doubt of the superior fitness and propriety, not to say
the absolute necessity, of different systems of regulation, drawn
from local knowledge and experience and conformed to local
wants."
53 U. S. 12 How.
299,
53 U. S.
320.
Buoys and beacons are important aids, and sometimes are
essential to the safe navigation of vessels in indicating the
channel to be followed at the entrance of harbors and in rivers,
and their establishment by Congress is undoubtedly within its
commercial power. But it would be extending that power to the
exclusion of state authority to an unreasonable degree to hold
that, whilst it remained unexercised upon this subject, it would be
unlawful for the state to provide the buoys and beacons required
for the safe navigation of its harbors and rivers, and in case of
their destruction by storms or otherwise it could not temporarily
supply their places until Congress could act in the matter and
provide for their reestablishment. That power, which every state
possesses, sometimes termed its police power, by which it
legislates for the protection of the lives, health, and property of
its people, would justify measures of this kind.
The uniformity of commercial regulations which the grant to
Congress was designed to secure against conflicting state
provisions was necessarily intended only for cases where such
uniformity is practicable. Where, from the nature of the subject or
the sphere of its operation, the case is local and limited, special
regulations adapted to the immediate locality could only have been
contemplated. State action upon such subjects can constitute no
interference with the commercial power of
Page 102 U. S. 699
Congress, for when that acts, the state authority is superseded.
Inaction of Congress upon these subjects of a local nature or
operation, unlike its inaction upon matters affecting all the
states and requiring uniformity of regulation, is not to be taken
as a declaration that nothing shall be done with respect to them,
but is rather to be deemed a declaration that, for the time being
and until it sees fit to act, they may be regulated by state
authority.
The improvement of harbors, bays, and navigable rivers within
the states falls within this last category of cases. The control of
Congress over them is to insure freedom in their navigation so far
as that is essential to the exercise of its commercial power. Such
freedom is not encroached upon by the removal of obstructions to
their navigability or by other legitimate improvement. The states
have as full control over their purely internal commerce as
Congress has over commerce among the several states and with
foreign nations, and to promote the growth of that internal
commerce and insure its safety, they have an undoubted right to
remove obstructions from their harbors and rivers, deepen their
channels, and improve them generally if they do not impair their
free navigation as permitted under the laws of the United States or
defeat any system for the improvement of their navigation provided
by the general government. Legislation of the states for the
purposes and within the limits mentioned do not infringe upon the
commercial power of Congress, and so we hold that the Act of the
State of Alabama of Feb. 16, 1867, to provide for the "improvement
of the river, bay, and harbor of Mobile" is not invalid.
There have been, it is true, expressions by individual judges of
this Court, going to the length that the mere grant of the
commercial power, anterior to any action of Congress under it, is
exclusive of all state authority, but there has been no
adjudication of the Court to that effect. In the opinion of the
Court in
Gibbons v. Ogden, the first and leading case upon
the construction of the commercial clause of the Constitution, and
which opinion is recognized as one of the ablest of the great Chief
Justice then presiding, there are several expressions which would
indicate, and his general reasoning would tend to
Page 102 U. S. 700
the same conclusion, that in his judgment, the grant of the
commercial power was of itself sufficient to exclude all action of
the states; and it is upon them that the advocates of the exclusive
theory chiefly rely; and yet he takes care to observe that the
question was not involved in the decision required by that case.
"In discussion the question whether this power is still in the
states," he observes that,
"in the case under consideration, we may dismiss from it the
inquiry, whether it is surrendered by the mere grant to Congress,
or is retained until Congress shall exercise he power. We may
dismiss that inquiry, because it has been exercised, and the
regulations which Congress deemed it proper to make are now in full
operation. The sole question is can a state regulate commerce with
foreign nations and among the several states while Congress is
regulating it?"
And the decision was necessarily restricted by the limitations
of the question presented. It determined that the grant of power by
the Constitution, accompanied by legislation under it, operated as
an inhibition upon the states from interfering with the subject of
that legislation. The acts of New York giving to Livingston and
Fulton an exclusive right to navigate all the waters within its
jurisdiction, with vessels propelled by steam, for a certain
period, being in collision with the laws of Congress regulating the
coasting trade, were therefore adjudged to be unconstitutional.
This judgment was rendered in 1824.
22
U. S. 9 Wheat. 1. Some years later (1829), the case of
Willson v. Blackbird Creek Marsh Company came before the
Court. There a law of Delaware authorizing the construction of a
bridge over one of its small navigable streams, which obstructed
the navigation of the stream, was held not to be repugnant to the
commercial power of Congress. The Court, Chief Justice Marshall
delivering its opinion, placed its decision entirely upon the
absence of any congressional legislation on the subject. Its
language was:
"If Congress had passed any act which bore upon the case; any
act in execution of the power to regulate commerce, the object of
which was to control state legislation over those small navigable
creeks into which the tide flows, and which abound throughout the
lower country of the Middle and Southern states -- we should not
feel much difficulty in saying that a
Page 102 U. S. 701
state law coming in conflict with such act would be void. But
Congress has passed no such act. The repugnancy of the law of
Delaware to the Constitution is placed entirely on its repugnancy
to the power to regulate commerce with foreign nations and among
the several states -- a power which has not been so exercised as to
affect the question."
27 U. S. 2 Pet.
245,
27 U. S.
252.
In the
License Cases, which were before the Court in
1847, there was great diversity of views in the opinions of the
different judges upon the operation of the grant of the commercial
power of Congress in the absence of congressional legislation.
Extreme doctrines upon both sides of the question were asserted by
some of the judges, but the decision reached, so far as it can be
viewed as determining any question of construction, was
confirmatory of the doctrine that legislation of Congress is
essential to prohibit the action of the states upon the subjects
there considered.
But in 1851, in the case of
Cooley v. Board of Wardens of
the Port of Philadelphia, to which we have already referred,
the attention of the Court appears to have been for the first time
drawn to the varying and different regulations required by the
different subjects upon which Congress may legislate under the
commercial power, and from this consideration the conclusion was
reached that, as some of these subjects are national in their
nature, admitting of one uniform plan or system of regulation,
whilst others, being local in their nature or operation, can be
best regulated by the states, the exclusiveness of the power in any
case is to be determined more by the nature of the subject upon
which it is to operate than by the terms of the grant, which,
though general, are not accompanied by any express prohibition to
the exercise of the power by the states. The decision was confined
to the validity of regulations by the states of harbor pilotage;
but the reasoning of the Court suggested as satisfactory a solution
as perhaps could be obtained of the question which had so long
divided the judges. The views expressed in the opinion delivered
are followed in
Gilman v.
Philadelphia, 3 Wall. 713, and are mentioned with
approval in
Crandall v. State of
Nevada, 6 Wall. 35. In the first of these cases,
the Court, after stating that some subjects of commerce call for
uniform rules and national legislation and
Page 102 U. S. 702
that others can
"be best regulated by rules and provisions suggested by the
varying circumstances of different localities, and limited in their
operation to such localities respectively,"
says, "whether the power in any given case is vested exclusively
in the general government depends upon the nature of the subject to
be regulated." This doctrine was subsequently recognized in the
case of
Welton v. State of Missouri, 91 U. S.
275, in
Henderson v. Mayor of New York,
92 U. S. 259, and
in numerous other cases, and it may be considered as expressing the
final judgment of the Court.
Perhaps some of the divergence of views upon this question among
former judges may have arisen from not always bearing in mind the
distinction between commerce as strictly defined, and its local
aids or instruments, or measures taken for its improvement.
Commerce with foreign countries and among the states, strictly
considered, consists in intercourse and traffic, including in these
terms navigation and the transportation and transit of persons and
property, as well as the purchase, sale, and exchange of
commodities. For the regulation of commerce as thus defined, there
can be only one system of rules applicable alike to the whole
country, and the authority which can act for the whole country can
alone adopt such a system. Action upon it by separate states is
not, therefore, permissible. Language affirming the exclusiveness
of the grant of power over commerce as thus defined may not be
inaccurate when it would be so if applied to legislation upon
subjects which are merely auxiliary to commerce.
2. The second objection of the appellant to the decree of the
circuit court is equally as untenable as the first. The question of
the validity of the Act of Feb. 16, 1867, under the Constitution of
Alabama at the time in force, was before the supreme court of the
state in 1871. It was contended that the act contravened the
article which forbade the taking of private property for public use
without just compensation or for private use or the use of
corporations other than municipal without the consent of the owner,
and the article which restrained the legislature from delegating
power to levy taxes to individuals or private corporations. The
Court held that the act was not open to objection on either of
these grounds, except
Page 102 U. S. 703
perhaps in the clause which authorized the board of
commissioners to assess dues or tolls to be collected on vessels or
watercraft, and if that clause could be deemed a delegation of the
taxing power under the article mentioned, that portion only of the
act was invalid. The issue by the President and Commissioners of
Revenue of Mobile County of bonds for the improvement of the river,
bay, and harbor of Mobile was not a taking of private property for
public use within the meaning of the constitutional clause. It was
a loan of the credit of the county for a work public in its
character, designed to be of general benefit to the state, but more
especially and immediately to the county. The expenses of the work
were of course to be ultimately defrayed by taxation upon the
property and people of the county. But neither is taxation for a
public purpose, however great, the taking of private property for
public use in the sense of the Constitution. Taxation only exacts a
contribution from individuals of the state or of a particular
district, for the support of the government, or to meet some public
expenditure authorized by it, for which they receive compensation
in the protection which government affords, or in the benefits of
the special expenditure. But when private property is taken for
public use, the owner receives full compensation. The taking
differs from a sale by him only in that the transfer of title may
be compelled, and the amount of compensation be determined by a
jury or officers of the government appointed for that purpose. In
the one case, the party bears only a share of the public burdens;
in the other, he exchanges his property for its equivalent in
money. The two things are essentially different.
The objection to the act here raised is different from that
taken in the state court. Here, the objection urged is that it
fastens upon one county the expense of an improvement for the
benefit of the whole state. Assuming this to be so, it is not an
objection which destroys its validity. When any public work is
authorized, it rests with the legislature, unless restrained by
constitutional provisions, to determine in what manner the means to
defray its cost shall be raised. It may apportion the burden
ratably among all the counties or other particular subdivisions of
the state or lay the greater share
Page 102 U. S. 704
or the whole upon that county or portion of the state specially
and immediately benefited by the expenditure.
It may be that the act, in imposing upon the County of Mobile
the entire burden of improving the river, bay, and harbor of
Mobile, is harsh and oppressive, and that it would have been more
just to the people of the county if the legislature had apportioned
the expenses of the improvement, which was to benefit the whole
state, among all its counties. But this Court is not the harbor in
which the people of a city or county can find a refuge from ill
advised, unequal, and oppressive state legislation. The judicial
power of the federal government can only be invoked when some right
under the Constitution, laws, or treaties of the United States is
invaded. In all other cases, the only remedy for the evils
complained of rests with the people, and must be obtained through a
change of their representatives. They must select agents who will
correct the injurious legislation, so far as that is practicable,
and be more mindful than their predecessors of the public
interests.
3. The objection that the right of the complainants to relief is
barred by a previous adjudication in the courts of the state
against their claim arises in this wise: after the complainants had
performed their work on the harbor of Mobile under the contract
with the harbor commissioners of June, 1872, and the work had been
approved and accepted, the legislature passed the Act of April 19,
1873, to regulate the further proceedings of the board, restricting
the issue of bonds to the amount, including those already issued,
of $200,000, and declaring that the harbor board should not, under
any pretense whatever, be entitled to receive bonds to any greater
amount. Bonds to that amount had already been delivered to the
board, and for six of them, the number to which they were entitled,
the complainants applied. The delivery of the bonds being refused,
they brought suit against the County of Mobile to obtain them or
their value.
Two grounds were alleged on which the responsibility of the
county was asserted -- one that the harbor board had ceased to have
anything to do with the improvement of the river, bay, and harbor
of Mobile and had turned over all the money and bonds left in its
possession to the officials of the county, the other
Page 102 U. S. 705
that the county, through its officials, had bought from the
harbor board thirty-one of the two hundred bonds issued at a price
less than their market value and had refused to deliver to the
complainants the six due to them which they had demanded.
The District Court gave a decree for the complainants, but the
Supreme Court reversed it, holding that upon the first ground, the
complainants were mistaken as to the situation of the harbor board,
and that it continued to exist for the purpose of winding up and
settling its business; and upon the second ground, that although
thirty-one of the bonds had been purchased as stated, they had been
cancelled before the complainants made the demand for six of them,
and it was shown by the county that there still remained with the
harbor board unaccounted for twenty-three of the two hundred bonds,
which were more than sufficient to pay the complainants and other
debts which the board owed. The court therefore decided that the
delinquency complained of was that of the harbor board, and not of
the county; that the only obligations imposed upon the county were
that it should issue its bonds upon the demand of the harbor board
and pay them according to their stipulations, and as it appeared
that the county officials had delivered to the board the whole
amount of the bonds demanded, and that this amount was ample for
the fulfillment of the obligations contracted for, the suit could
not be maintained. The decree was therefore reversed and the bill
dismissed, but without prejudice -- a condition which prevented the
adjudication from operating as a bar to the same claim if the
complainants could in another suit obviate the defects of the
existing bill. In the present suit, they have obviated these
defects. They allege and prove that the harbor board had disposed
of all the bonds it had received before the passage of the act of
April 19, 1873, restricting the number to be issued, and that it
had turned over to the officials of the county neither bonds nor
proceeds to meet the demand of the complainants. The two suits,
though seeking the same relief, rest upon a different state of
facts, and the adjudication in the one constitutes, therefore, no
bar to a recovery in the other.
4. But it is finally objected that the case presented by the
bill is not one for the cognizance of a court of equity. This
objection
Page 102 U. S. 706
is important only from the supposed effect of the decision of
the Supreme Court of the state in the first suit against the county
brought by the complainants. It appears to have been taken for
granted by counsel, and also by the court below, that the supreme
court of the state had decided that the harbor board was not the
agent of the county in making the contract with the complainants.
We do not so read its opinion. It only says that the board was
created by the general assembly of the state, and was not an agent
appointed by the County of Mobile. It does not state that the board
was not an agent of the county, but only that its appointment was
not from the county, and that it drew its existence and authority
from the statute of the state. It is not necessary to constitute an
agency of a political subdivision of a state that its officials
should be elected by its people or be appointed with their assent.
It is enough to give them that character that, however appointed,
they are authorized by law to act for the county, district, or
other political subdivision. Here, the harbor board, created by a
law of the state, was authorized to make contracts for a public
work in which the county was specially interested, and by which it
would be immediately and directly benefited, and to require
obligations of the county to meet the expenses incurred. It is a
mere battle of words to contend that it was, or was not, an agent
of the county because its members were appointed by some exterior
authority. It is enough in this case that by force of the law of
its creation, it could bind the county for work for which it
contracted. Having thus bound the county, the contractors are
entitled to the bonds stipulated, or their equivalent in money. If
for any cause the repeal of the law creating the harbor board, or
the refusal of its members or other officials to act, the contract
cannot be specifically enforced, a court of equity will order
compensation in damages from the party ultimately liable. That
court will free the case from all technical embarrassments, to the
end that justice may be done to those who have trusted to the law,
and the responsibility of parties receiving benefits under it. The
case here is not different in principle from the ordinary case of a
party's being unable to comply with his contract when specific
performance is demanded. If, for example, there be a contract for
the purchase
Page 102 U. S. 707
of land with which the purchaser has complied, but in which the
vendor has failed, a court of equity will take jurisdiction, and if
it be seen that the vendor, from subsequent sales or otherwise,
cannot comply with a decree for a specific performance, the court
will adjudge compensation in damages. So here the court will grant
the relief which the complainants, under their contract, are
entitled to have if such relief can be obtained from the county,
but if by reason of intervening obstacles since the contract was
made, whether arising from laches or default of its officials or
repealing legislation, this cannot be secured, an alternative and
compensatory decree -- that is, one for a money equivalent in the
form of damages -- will be directed. And as this has been done in
the present case, the decree is
Affirmed.
