It appearing on the face of the bill in this case that all the
parties to this suit are citizens of Iowa, and the court being of
opinion that the allegation in the bill that this is a controversy
and a suit of a civil nature arising under the Constitution and
laws of the United States is not only not supported by the facts
appearing in the bill, but is so palpably unfounded
Page 174 U. S. 169
that it constitutes not even a color for the jurisdiction of the
Circuit Court, the decree below, dismissing the bill for want of
jurisdiction, is affirmed.
The bill in this case is filed against the City of Des Moines,
its board of public works, the Des Moines Brick Manufacturing
Company, and the incorporated Town of Greenwood Park, to obtain an
injunction restraining, among other things, the City of Des Moines
and its officers and agents from exercising over the territory of
the incorporated town of Greenwood Park any function of municipal
government for the purpose of taxation, or for works of internal
improvements or otherwise, and for other relief.
The bill makes the following allegations: the complainants own
in severalty lands within the incorporated Town of Greenwood Park,
and the lands so owned by each of the complainants are worth more
than $2,000. Adjoining the town is the City of Des Moines, a
municipal corporation created under the laws of the State of Iowa.
In 1890, the legislature passed an act purporting to extend the
limits of the City of Des Moines so as to include therein the town
above named. The constitution of the state prohibits the passing of
special acts for the incorporation of cities. The act of 1890 was a
special act incorporating a city, and therefore prohibited by the
constitution, and, as a consequence, entirely void. The
incorporated town has never been dissolved, and is entitled to
exercise all the functions of government and taxation, but it has
ceased to exercise them over the territory. That, notwithstanding
the act of 1890 is wholly void, and of no effect, the defendant the
City of Des Moines pretended and undertook to exercise the
functions of government and the power of taxation over the
territory of Greenwood Park. That the only warrant for the city to
act in the premises is the void act of the legislature of 1890, and
the city is assuming to levy assessments, and to exercise the power
of taxation, and to perform all the other functions of municipal
government under that act. That the suit herein is one of a civil
nature, arising under the laws and constitution of the United
States, and the suit in controversy
Page 174 U. S. 170
exceeds $2,000. It appears on the face of the bill that all the
parties are citizens of the State of Iowa.
The bill further alleges that the city made a contract with the
defendant the Des Moines Brick Manufacturing Company to pave a
public highway in the town, the expense of which was to be assessed
upon the property abutting thereon, including the lands of the
complainants, and the work was all done under color of the act
mentioned, and that it was all illegal for want of authority; that
at the time of the passage of the act and the taking of
jurisdiction by the city, the town was exclusively an agricultural
community, and there was no advantage in or necessity for the
annexation of the town to the City of Des Moines, and none of the
land in the town had been plotted into lots by laying out streets
or alleys therein, and the highways within it were under the
control and jurisdiction of the officers of Polk County, and that
to subject the lands of complainants or the other lands within the
town to the taxes and assessments threatened by the City of Des
Moines is to take their property under color of authority from the
void act of 1890, and contrary to the amendment of the Constitution
of the United States (Section 1, Article XIV).
Further allegations were made, not material to be stated.
In addition to asking for an injunction to restrain the City of
Des Moines from exercising jurisdiction over the Town of Greenwood
Park, the complainants ask that the town
"be enjoined to exercise for its own future benefits under the
statutes of Iowa all functions of municipal government and taxation
and works of internal improvement in the same manner and to the
same extent as the said functions have been exercised by said
defendant prior to March 3, 1890."
The bill further prayed that the city and the board of public
works should be enjoined from making any levy upon the property of
the complainants to pay the expense of paving the highway, and that
the city be restrained from issuing to the Des Moines Brick
Manufacturing Company any assessment certificates on account of
paving, and for other relief.
The defendant the Des Moines Brick Manufacturing
Page 174 U. S. 171
Company demurred to the bill on the ground, among others, that
it appeared on the face of complainants' bill that all the parties
to the suit were citizens of the State of Iowa, and that this suit
does not involve any question arising under the Constitution or
laws of the United States, and therefore the circuit court had no
jurisdiction in the case.
The circuit court sustained the demurrer on the ground of want
of jurisdiction, and, pursuant to section 5 of the act of 1891,
organizing the circuit courts of appeals, 26 Stat. 826, it has
certified the question of jurisdiction alone for decision by this
Court.
The opinion of the district judge in dismissing the bill is
reported in 84 F. 726.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The jurisdiction of the circuit court depends upon the act
approved August 13, 1888, 25 Stat. 433, a part of which reads as
follows:
"That the circuit courts of the United States shall have
original cognizance, concurrent with the courts of the several
states, of all suits of a civil nature at common law or in equity .
. . arising under the Constitution or laws of the United States. .
. ."
As it appears upon the face of the bill that all the parties are
citizens of Iowa, the circuit court had no jurisdiction on the
ground of diverse citizenship.
Is the suit one arising under the constitution or laws of the
United States? As was said in the court below, the material
question is whether the exercise of jurisdiction by the City of Des
Moines over the territory purporting to be annexed by the act of
1890 is lawful. To answer that question, it is
Page 174 U. S. 172
necessary only to refer to the constitution and law of the State
of Iowa.
The supreme court of the state decided in
Iowa v. Des
Moines, 96 Ia. 521, that the act of 1890 was void because it
violated the constitutional provision in regard to special
legislation. That was an action of
quo warranto brought to
test the right of the defendant city to exercise corporate
authority over the added territory under the act of 1890. From the
report of the facts in that case, it appears that the city was by
that act extended two and one-half miles in each direction from its
then present boundary, and it was provided by the same act that the
corporate character of any annexed territory within the extended
boundaries should cease and determine upon the passage of the act.
Other sections of the act provided for the payment of the
indebtedness of the city so enlarged, and of the indebtedness of
the cities within the annexed territory, and for the exemption from
taxation for any city purpose of lands included within the extended
limits which had not been laid off into lots of ten acres or less,
or which should not subsequently be divided into parcels of ten
acres or less by the extension of streets and alleys or otherwise,
and also of lands occupied and used in good faith for agricultural
or horticultural purposes, for the reorganization of the wards of
the cities, and for elections therein. It appeared from the census
of 1885 that only the City of Des Moines was affected by the act of
1890, and that in the added territory were one city and seven
incorporated towns. The provisions of the act by which the
municipal governments other than the City of Des Moines were to
become extinct, and the entire territory to become one corporation
and municipality, were observed, so that in April, 1890, the change
was complete, since which time the City of Des Moines has been thus
constituted, and has exercised throughout the territory the rights
and functions of a city government, including the levy and
collection of taxes, establishing, opening, vacating, changing, and
improving streets, the making of contracts, and the creating and
payment of debts.
These details, while appearing in the report in 96 Ia. are
Page 174 U. S. 173
not set up in the complainants' bill, but their substance is
shown in the allegations therein made that the town has ceased to
exercise all the functions of government and taxation and the City
of Des Moines and the board of public works are themselves
exercising the functions of government over the town territory.
After the court in the
quo warranto case had determined
that the act was local legislation and of that class prohibited by
the Constitution, and therefore void, the opinion therein continues
as follows:
"It is next to be determined whether or not, with the law giving
rise to the annexation absolutely void, the legality of the present
city organization can be sustained under the rule of estoppel or
laches. On this branch of the case, a large number of authorities
have been cited, and the newness of the question, as well as the
great interests involved, make it one of great importance. The
foundation for the application of the doctrine of estoppel is the
consequence to result from a judgment denying to the City of Des
Moines municipal authority over the territory annexed after the
lapse of four years, during which time such authority has been
exercised, and the changed conditions involving extensive public
and private interests. It will be remembered that the act of
annexation resulted in the abandonment of eight municipal
governments which, before the annexation, were independent, and
bringing them under the single government of the City of Des
Moines. This involved a vacation of all offices in the city and
towns annexed and the delivery of all public records and property
to the officers chosen for the city so enlarged. For four years,
taxes have been levied, collected, and expended under the new
conditions; public improvements have been made, including some
miles of street curbing, paving, and sewerage, for which
certificates and warrants have been issued, and contracts are now
outstanding for such improvements. In brief, with the statement
that for the four years the entire machinery of city government has
been in operation, the situation may be better imagined than
expressed. It is hardly possible to contemplate the situation to
result from
Page 174 U. S. 174
a judgment dissolving the present city organization and leaving
the territory formerly embraced within corporate lines as it would
be left. Of all the cases to which we are cited involving the
validity of municipal organizations where the consequences to
result from a judgment of avoidance are considered, not one
presents a case of such uncertainty, nor where there are the same
grounds for serious apprehension, because of difficulties in
adjusting rights in this case."
The court then cited several cases in which the doctrine of
laches had been applied to sustain a municipal government where the
organization, as attempted, was illegal.
See State v.
Leatherman, 38 Ark. 81;
Jameson v. People, 16 Ill.
257;
People v. Maynard, 15 Mich. 463, and also the
following from Cooley on Constitutional Limitations (page 312, 4th
ed.):
"In proceedings where the question of whether a corporation
exists or not arises collaterally, the courts will not permit its
corporate character to be questioned if it appears to be acting
under color of law, and recognized by the state as such. . . . And
the rule, we apprehend, would be no different if the constitution
itself prescribed the manner of incorporation. Even in such a case,
proof that the corporation was acting as such, under legislative
action, would be sufficient evidence of right, except as against
the state, and private parties could not enter any question of
regularity. And the state itself may justly be precluded, on
principles of estoppel, from raising any such objection where there
has been long acquiescence and recognition."
Continuing with its own opinion, the court stated:
"This, it is true, is a direct proceeding by the state. And,
while the language used is applied in part to collateral
proceedings, it seems also to include actions by the state
directly. The learned writer sustains this text by a reference to
People v. Maynard, supra, Rumsey v. People, 19 N.Y. 41,
and
Lanning v. Carpenter, 20 N.Y. 447. It will be seen
that importance is given to the fact that the defective
organization takes place under color of law. Nothing less can be
said of the annexation in this case than that it was made under
color
Page 174 U. S. 175
of law. 'Color of law' does not mean actual law. 'Color,' as a
modifier, in legal parlance, means 'appearance, as distinguished
from reality.' Color of law means 'mere semblance of legal right.'
Kin.Law Dict. & Gloss. In some of the cases, the defects as to
organization have been spoken of as irregularities, because of
which appellant thinks the cases not applicable because this is a
void proceeding. The term 'irregularity' is oftener applied to
forms or rules of procedure in practice than to a nonobservance of
the law in other ways, but it has application to both. It is
defined as a 'violation or nonobservance of established rules and
practices.' The annexation in question was a legal right under the
law, independent of the act held void. It was not a void thing, as
if prohibited by law. The most that can be said is that the
proceeding for annexation was not the one prescribed, but it was a
violation or nonobservance of that rule or law. It seems to us that
the proceeding is no less an irregularity than in the cases
cited."
And again on page 536, in speaking of the invalidity of the act
of 1890, the court said:
"Had the act never been passed, and the same method for
annexation been adopted, with the same conditions as to
recognition, acquiescence, delays, and public and private interests
involved, the same conclusion would result, and hence the act is
without the least significance, nor have we given it a shadow of
bearing, except insofar as it may have served as a color of law
inducing the proceedings for annexation."
And, lastly, in speaking of the consequences to be apprehended
from a judgment of ouster, the learned court said:
"Such a judgment would disrupt the present peaceful and
satisfactory arrangement of all the people of the city as to its
corporate existence, without a benefit, so far as we know, to any
person. The law does not demand such a sacrifice for merely
technical reasons. In fact, the constitutional vindication is
complete with the declaration that the act is absolutely void."
It will thus be seen that while the Supreme Court of Iowa
decided that the act purporting to extend the limits of the city
was void as being in violation of the constitutional provision
Page 174 U. S. 176
in regard to special and local legislation, yet the court also
held, for the reasons stated, that it was sufficient in itself to
constitute, under the circumstances mentioned, a color of law for
the annexation, and for the application of the principles of
estoppel as above mentioned. The legality of the present city
organization was for those reasons sustained. It is this same
organization that the complainants now ask to have enjoined in this
suit from exercising any function of government in the annexed
district, and the former organization in the annexed district,
which the complainants allege has ceased to exercise those
functions, they now ask the court in this suit to enjoin it "to
exercise for its own future benefits under the statutes of
Iowa."
To grant the relief demanded would quite effectually overrule
the decision of the state court upon a question relating purely to
the local law of the state.
The claim of the complainants is based solely and wholly upon
the allegation that the act of 1890 was void as in violation of the
Constitution of Iowa. Their counsel lay that down in so many words
in their brief. They say that their claim is
"that, under a law declared to be void and unconstitutional by
the Supreme Court of the State of Iowa, the City of Des Moines is
still exercising municipal control and jurisdiction over the
complainants' property."
There is an allegation in the bill that the land of the town was
agricultural, but it is not asserted that the act was a violation
of the federal Constitution because it included such lands. No such
question is made by the bill.
In their brief, counsel urge that the act was void because,
among other things, it was a violation of the Constitution of Iowa
in bringing agricultural lands, under the circumstances and to the
extent mentioned, into the control and limits of the city. The act
itself in the third section exempts such lands from taxation for
any city purpose when they shall in good faith be occupied and used
for agricultural or horticultural purposes.
It is therefore quite plain that the complainants base their
case upon the allegation that their property is about to be
Page 174 U. S. 177
taken from them by the city authorities without due process of
law, and in violation of the Constitution of the United States,
because the act of 1890 violates the Constitution of Iowa. That is
a question of law depending for its solution upon the law of Iowa,
and as to what that law is, the federal courts are bound in such a
case as this by the decision of the state tribunal. There is no
construction of the federal Constitution involved in that inquiry,
nor any question as to its effect upon the complainants' rights in
this suit. The question whether their property is taken without due
process of law must be decided with sole reference to the law of
Iowa. How can it be said, upon such facts, that any question arises
under the constitution or laws of the United States? The claim of
the complainants will not be defeated by one construction of that
clause in the Constitution or sanctioned by the other.
Starin
v. City of New York, 115 U. S. 248.
There is no dispute about construction in any way whatever; the
only question is as to the validity of the city organization,
which, as stated, is a matter of state law.
The case is, however, made still stronger by the fact that the
validity of the present organization of the city government and the
lawfulness of its exercise of jurisdiction over the territory
mentioned has been already decided by the state court, and had been
so decided when this suit was commenced. It is not important upon
what ground the state court proceeded in arriving at its judgment
-- whether it was because the act of 1890 was valid or that, being
invalid, the lawfulness of the organization could not be inquired
into for the reasons stated in the opinion of the court above
quoted. The complainants, however, argue that the state supreme
court, in the
quo warranto case, did not decide upon the
validity of the city organization, but only that the relator, being
a nonresident of the city and paying taxes in the town in the
nominal sum of a dollar a year, would not be heard upon a question
which might disturb the peaceful relations that existed in the
territory, and which might also overturn the municipal authority of
the City of Des Moines therein. Counsel allege that these
complainants do not attempt to test the corporate existence
Page 174 U. S. 178
of the City of Des Moines, but simply to test the right of that
corporation to levy taxes for certain purposes upon the property of
the complainants.
The last assertion, so far as concerns the testing of the
corporate existence of the city in the territory mentioned, is
clearly an error, because the bill asks relief in the way of a
perpetual injunction to restrain the City of Des Moines, its
officers and agents, from the exercise of any function of municipal
government or authority or jurisdiction for the purpose of taxation
or for works of internal improvement in the Town of Greenwood Park,
and it asks that the city officers be perpetually restrained from
interfering with the officers of the town, or from obstructing them
in the administration of the municipal affairs of the town, and
that the town
"be authorized and enjoined to exercise for its own future
benefits under the statutes of the State of Iowa all functions of
municipal government, taxation, and works of internal improvement,
in the same manner and to the same extent as the said functions
have been exercised by defendant prior to the 3d day of March,
1890."
This prayer for relief seeks to test pretty substantially the
corporate existence of the City of Des Moines in the territory in
question. It does, of course, also seek to test the right of the
corporation to levy taxes for the purposes named in the bill, and
upon the property of the complainants; but the right to levy these
taxes depends entirely upon the legality of the city organization,
so that, if the organization is not lawful, the taxation is equally
invalid.
The commencement of this suit is plainly an attempt to overturn
the decision of the state court in the
quo warranto case.
In our opinion, the complainants take much too narrow a view of the
decision of the state court in that case. The facts of the
nonresidence of the relator and the smallness of his interest were
spoken of, but they formed only an insignificant part of other and
more important facts upon which the reasoning of the court was
based. Those other facts were of a public nature, and the court, in
its opinion, gave great weight to the public interests that were
involved, and the great injury that would fall upon all public as
well as private
Page 174 U. S. 179
interests by overturning an authority that had lasted four
years, and which had been initiated under color and by reason of an
act of the legislature. The court in truth decided that the
legality of the city organization could not be inquired into, even
in a direct proceeding brought by the state to test the validity of
the act -- or, in other words, the validity must be sustained for
the following, among other, stated reasons: the lapse of time, the
actions of the authorities of both city and town in taking and
yielding possession and jurisdiction, the delivery of all public
records and the closing of all public offices by the officers in
all the abandoned municipal governments, the levying, collection,
and expenditure of taxes, the public improvements made after the
passage of the act, the bonds that had been recalled by the city
and others issued in their place, the general recognition of the
validity of the municipal government by all classes of the
community, the color of law under which the organization of the
city government had been practically effected in the territory, and
the inextricable confusion into which the whole affairs of the city
and town would be thrown as the necessary result of holding that
the city government did not extend over the territory mentioned.
For these public considerations, the court refused to permit the
inquiry to be made, even by the state, into the validity of the
municipal government of the city as enlarged under color of the act
of 1890. That no collateral inquiry would be permitted the opinion
takes as unquestionably plain.
For the purpose, probably, of meeting the argument arising from
acquiescence, as set forth in the
quo warranto case, the
complainants allege in the bill herein that they and the citizens
of Greenwood Park have not assented to or acquiesced in or agreed
to the acts of the City of Des Moines, and that jurisdiction has
been exercised over them without their consent, and without
permitting the citizens, by election or otherwise, to determine
whether the pretended acts of annexation should be operative or
not. These allegations would seem to refer to the state of mind
which the complainants and citizens were in during these many
years, and the allegation of an absence of
Page 174 U. S. 180
acquiescence would also seem to have been founded upon the fact
that there had been no election by which to determine whether the
act should be accepted or not. Neither fact alters the effect to be
properly given the opinion in the case mentioned, in the face of
the facts actually existing. From the time of the passage of the
annexation act up to the commencement of this suit, a period of
seven years, there is no allegation of any act on the part of the
complainants or any other citizen in the way of an attempt to test
the validity of this legislation, with the exception of the suit
brought by the state upon the relation of a nonresident property
owner who paid taxes in the amount of one dollar a year. Otherwise
than as above stated, there is no allegation tending to show
dissatisfaction with the legislation prior to September, 1897, when
the brick company defendant entered upon the work which led to the
assessment in dispute in this suit. During these years, the city
authorities have, as the bill alleges, performed all the functions
of government in the territory, and taxes have imposed and
collected (presumably from complainants among others), improvements
commenced and continued, interest on bonds paid, and no action
taken by any one to prevent these measures, or to test their
validity. What may have been the secret thoughts of the
complainants or other citizens during all this time must be matter
wholly immaterial, so long as there was such acquiescence on the
part of the public authorities as has been stated in the opinion of
the court in the
quo warranto case, and such as
substantially appears by the allegations of the bill in this suit.
The particular allegations of nonacquiescence by the complainants
do not detract from the strength of the principles laid down by the
state court, nor do they in any degree affect the full
applicability of those principles to the facts set up in the bill
in this suit. The action of the state against the City of Des
Moines has been the only thing done towards making any attempt to
test the question of the validity of the legislation prior to the
commencement of this suit. In this suit, we are bound to take the
law of Iowa as it has been decided to be in the
quo
warranto case. In that case, it has been deliberately decided
that the validity of the organization
Page 174 U. S. 181
of he municipal government in the whole territory in which it
has been in practical operation for so long a time cannot be the
subject of judicial inquiry by any one at this late day. Such being
the law of Iowa, we are of opinion that an allegation in the bill
that this is a controversy and a suit of a civil nature arising
under the constitution and laws of the United States is not
supported by the facts appearing in the bill. The facts alleged
must show the nature of the suit, and it must plainly appear that
it arises under the constitution or laws of the United States --
that is, there must be a real and substantial dispute as to the
effect or construction of the Constitution, or of some law of the
United States, upon the determination of which the recovery
depends.
Shreveport v. Cole, 129 U. S.
36;
New Orleans v. Benjamin, 153 U.
S. 411.
Taking the law of Iowa to be as decided in the case mentioned,
it appears that the validity of the city government has been
sustained by the state court, and in that event there is not a
shadow of a federal question in this suit, for, if the city
government be valid, the regularity and validity of the proposed
assessment necessarily follow, and there cannot be even a pretense
that the collection of the assessment would be without due process
of law.
The allegation that the suit arises under the constitution of
the United States is so palpably unfounded that it constitutes not
even a color for the jurisdiction of the circuit court. That court
was therefore right in dismissing the bill, and its decree must
be
Affirmed.