A writ of error to the supreme court of a state cannot be
sustained when the only question involved is the construction of a
charter or contract, although it appear that there were statutes
subsequent to such charter which might have been, but were not,
relied upon as raising a federal question concerning the
construction of the contract. If the sole question be whether the
Supreme Court has properly interpreted the contract, and there be
no question of subsequent legislative impairment, there is no
federal question to be answered. The Court is not bound to search
the statutes to find one which can be construed as impairing the
obligation
Page 180 U. S. 42
of the charter when no such statute is set up in the pleadings
or in the opinion of the court.
Such omission cannot be supplied by the certificate of the chief
justice that, upon the argument of the case, the validity of the
subsequent legislation was drawn in question upon the ground of its
repugnancy to the Constitution of the United States.
This was an action begun in the Circuit Court of Hinds County,
Mississippi, by Adams, as state revenue agent, suing for the use
and benefit of certain cities and towns through which the defendant
railway runs, to recover municipal taxes upon its property for the
years 1893 to 1896 inclusive.
A demurrer to the declaration having been sustained upon the
ground that the exemption claimed by defendant in its charter was
perpetual and unconditional as to the municipal taxes, an appeal
was taken to the supreme court, which reversed the action of the
circuit court and remanded the case for a new trial. 75 Miss. 275.
An amended declaration having been filed claiming taxes from 1886
to 1897 inclusive, defendant interposed pleas (1) of the general
issue; (2) that defendant was organized under an act of February
17, 1883, containing the following provision in § 8:
"That in order to encourage the investment of capital in the
works which said company is hereby authorized to construct and
maintain, and to make certain in advance of such investment, and as
an inducement and consideration therefor, the taxes and burdens
which this state will and will not impose thereon, it is hereby
declared that said company, its stock, its railroads and
appurtenances, and all its property in this state necessary or
incident to the full exercise of all the powers herein granted --
not to include compresses and oil mills -- shall be exempt from
taxation for a term of twenty years from the completion of said
railroad to the Mississippi River, but not to extend beyond
twenty-five years from the date of the approval of this act; and
when the period of exemption herein prescribed shall have expired,
the property of said railroad may be taxed at the same rate as
other property in this state. All of said taxes to which the
property of said company may be subject in this state, whether for
county or state, shall be collected by the treasurer of this state
and paid into the state
Page 180 U. S. 43
treasury, to be dealt with as the legislature may direct; but
said company shall be exempt from taxation by cities and
towns;"
that the railroad was completed to the Mississippi River October
25, 1892, by a consolidation with the Louisville, New Orleans,
& Texas Railway Company, which had constructed and was then the
owner of certain branches which reached the Mississippi River at
several different points; (3) that, after the company was organized
but before its line was finally located and constructed, the
municipal authorities of the City of Jackson adopted an ordinance
releasing the road from all city taxation for twenty years from
date, provided it selected Jackson for its southeastern terminus
and provided further that the work on said road be commenced within
one year and be completed within three years to Yazoo City; and
that such ordinance was accepted and complied with by the
defendant; (4) that, prior to the assessment of these taxes,
defendant leased its road to the Illinois Central for a term of
fifty years, which, until the bringing of this suit, held and
operated such road under such lease; that, by its terms, the
Illinois Central agreed to pay and discharge all taxes assessed
upon the defendant company; that under defendant's charter, it was
exempted from all municipal taxation; that the right of the
legislature to make such exemption had been judicially recognized
in the case of
Mississippi Mills v. Cook, 56 Miss. 40; and
that such exemption entered into and constituted a part of the
aforesaid lease and of the charter contract between the defendant
and the state; and that "the said exemption, by said charter
conferred, has never been repealed by the legislature of said
state," but that, during the four years named, the legislature
refused to pass bills introduced to repeal such exemption.
A new trial resulted in a verdict for the plaintiff, which was
affirmed by the supreme court. 76 Miss. 545. Hence this writ of
error.
Page 180 U. S. 44
MR. JUSTICE BROWN delivered the opinion of the Court:
Motion is made to dismiss for the want of a federal question.
The ground of the motion is that, while the second and fourth pleas
set up the exemption contained in the charter from all municipal
taxation, and the third pleads the exemption from city taxation by
the ordinance of the mayor and aldermen of the City of Jackson, and
inferentially, at least, that these constitute a contract under
which the road was built, there is not only no averment that this
contract had been impaired by subsequent legislation, but no
discussion of the case in that aspect by the supreme court, which
held that, under a proper construction of the charter, the railroad
company is not entitled to an exemption from municipal taxation,
because the road had never been completed to the Mississippi River.
There was undoubtedly legislation both before and subsequent to the
charter of this company, February 18, 1882, authorizing
municipalities to impose taxes, but no allusion to them is made
either in the pleadings, proofs, or in the opinion of the supreme
court.
The case then resolves itself into this -- whether jurisdiction
can be sustained when the only question involved is the
construction of a charter or contract, although it appear that
there were statutes subsequent thereto which might have been, but
were not, relied upon as raising a federal question concerning the
construction of the contract. There is no doubt of the general
proposition that, where a contract is alleged to have been impaired
by subsequent legislation, this court will put its own construction
upon the contract, though it may differ from that of the supreme
court of the state. The authorities upon this point are very
numerous, but they all belong to a class of cases in which it was
averred that, properly construed, the contract was impaired by
subsequent legislation; but if the sole question be whether the
supreme court has properly interpreted the contract, and there be
no question of subsequent
Page 180 U. S. 45
legislative impairment, there is no federal question to be
answered.
Lehigh Water Co. v. Easton, 121 U.
S. 388.
To sustain our jurisdiction under the second clause of Rev.Stat.
sec. 709, relied upon here, there must be drawn in question the
validity of a state statute upon the ground of its being repugnant
to the Constitution or laws of the United States; but of what state
statute is the validity attacked in this case? None is pointed out
in the record; none set up in the pleas; none mentioned in the
opinion of the court. In fact, in the fourth plea it is expressly
averred that "the exemption by said charter conferred has never
been repealed by the legislature of the state," and we are only
asked to infer that certain statutes describing in detail methods
of municipal taxation did in fact impair the obligation of the
chartered contract. But are we bound to search the statutes of
Mississippi to find one which can be construed as impairing the
obligation of the charter? It is true that, in the first assignment
of error in this court, it is averred that the supreme court of the
state erred in rendering its judgment, whereby the tax provisions
of the Annotated Code of 1892, providing for the office of revenue
agent, and chapter 34 of the Laws of 1894, defining the powers of
that office "were given effect against the contract rights of the
plaintiffs in error," contrary to the contract clause of the
Constitution; but no mention is made of this in the assignments of
error filed in the supreme court of the state, which were of the
most general description; and no allusion is made to the Code of
1892 or to the act of 1894 in the opinion of the court.
There is a laxity of pleading, in failing to set up the
subsequent law impairing the obligation of the contract, which
ought not to be encouraged. Granting that, as the case arose under
the second clause of Rev.Stat. sec. 709, the invalidity of the
statute need not be "specially set up or claimed," it must appear,
under the most liberal construction of that section, that it was
necessarily involved, and must indirectly, at least, have been
passed upon in the opinion of the supreme court; but, for aught
that appears, the very statutes under which this road was taxed
were in existence before the road was chartered, although others,
prescribing a different method of assessing
Page 180 U. S. 46
and collecting such taxes, may have been passed subsequent
thereto. This subsequent legislation, however, may have had, and
apparently did have, nothing to do with the disposition of the
case.
Three recent cases in this Court are pertinent in this
connection. In
Central Land Co. v. Laidley, 159 U.
S. 103, an action of ejectment was brought by Laidley
against the land company in a court of West Virginia. The case
turned upon the defectiveness of a wife's acknowledgment to a deed
of land. The Court of Appeals of Virginia, prior to the
organization of the State of West Virginia, had in several cases
held that acknowledgments in this form were sufficient, but the
Court of Appeals of West Virginia in this case held it to be
insufficient, and the change of the settled construction of the
statute was charged as an impairment of the contract. This Court
held that, under the contract clause of the Constitution, not only
must the obligation of the contract be impaired, but it must have
been impaired by some act of the legislative power of the state,
and not by decisions of the judicial department only. "The
appellate jurisdiction of this Court," said MR. JUSTICE GRAY,
"upon writ of error to a state court on the ground that the
obligation of a contract has been impaired, can be invoked only
when an act of the legislature alleged to be repugnant to the
Constitution of the United States has been decided by the state
court to be valid, and not when an act admitted to be valid has
been misconstrued by the court. The statute of West Virginia is
admitted to have been valid, . . . and it necessarily follows that
the question submitted to and decided by the state court was one of
construction only, and not of validity."
It was said by Mr. Justice Miller in
Knox v.
Exchange Bank, 12 Wall. 379,
79 U. S.
383:
"We are not authorized by the judiciary act to review the
judgments of the state courts because their judgments refuse to
give effect to valid contracts, or because those judgments, in
their effect, impair the obligation of contracts. If we did, every
case decided in a state court could be brought here when the party
setting up a contract alleged that the court had taken a different
view of its obligation to that which he held."
So, also, in
Turner v. Wilkes County
Commissioners, 173 U.S.
Page 180 U. S. 47
461, it was said that,
"this being a writ of error to a state court, we cannot take
jurisdiction under the allegation that a contract has been impaired
by a decision of that court, when it appears that the state court
has done nothing more than construe its own Constitution and
statutes existing at the time when the bonds were issued, there
being no subsequent legislation touching the subject."
In this case too the plaintiff in error sought to take advantage
of a change of judicial construction by the supreme court of the
state, which had held that the bonds were void because the acts
under which they were issued were not valid laws, not having been
passed in the manner directed by the Constitution.
The case of the
Yazoo & Mississippi Valley Railroad Co.
v. Thomas, 132 U. S. 174, is
much relied upon by the plaintiff in error, and is claimed to be
full authority for the maintenance of the writ in this case. This
was a bill by the plaintiff in error in the case under
consideration to enjoin a collection of taxes upon its
property.
"The illegality complained of was that the tax was in violation
of the company's charter, by which it was insisted the property of
the company incident to its railroad operations was exempted from
taxation, and it was averred that the charter, as respects the
exemption claimed, was a contract irrevocable and protected by the
contract clause of the Constitution of the United States; that the
unwarranted application of the general laws subsequently passed, as
well as the application of the general laws in force at the time,
is equivalent to a direct repeal of the charter exemption; that it
is an effectual abrogation of its privilege of exemption by means
of authority exercised under the state."
Not only does it appear from the opinion that the taxes in
question were assessed under an act passed in 1888, subsequent to
the charter, but on reference to the original bill, which we have
consulted for that purpose, we find that this Act of April 3, 1888,
was specially set up and pleaded in the bill, and was charged to be
a violation of the charter contract, which exempted the orator's
road from taxation, and that such application of said act was the
same as a repeal or revocation of the granted exemption, and
therefore in violation of the Constitution of the United States
Page 180 U. S. 48
forbidding such violation. In other words, the bill in that case
not only pointed out the exemptions contained in the plaintiff's
charter, but also set up the subsequent statute, which, it was
contended, impaired the obligation of that contract. The bill thus
contained the allegation which is wanting in this case, and put it
in the power of this Court to say whether the contract set up in
the bill had been properly construed by the state court. This was
also the case in
Columbia Water Power Co. v. Columbia Electric
Street Railway Co., 172 U. S. 475, and
McCullough v. Virginia, 172 U. S. 102.
If jurisdiction in this case be sustained, it results that
whenever a state court gives a certain construction to a contract,
it is our duty to search the subsequent statutes and to find out
whether there be one which, under a different construction of the
contract, may be held to impair it. We must decline the obligation.
As was said by the CHIEF JUSTICE in
Powell v. Brunswick
County, 150 U. S. 433,
150 U. S.
440:
"If it appear from the record by clear and necessary intendment
that the federal question must have been directly involved, so that
the state court could not have given judgment without deciding it,
that will be sufficient; but resort cannot be had to the expedient
of importing into the record the legislation of the state as
judicially known to its courts, and holding the validity of such
legislation to have been drawn in question, and a decision
necessarily rendered thereon in arriving at conclusions upon the
matters actually presented and considered."
See also Louisville & Nashville Railroad Co. v.
Louisville, 166 U. S. 709,
166 U. S.
715.
It is true that the chief justice of the supreme court certifies
that, upon the argument of this case, the validity of legislation
of the State of Mississippi subsequent to the statute of February
18, 1882, was drawn in question by the company upon the ground of
its repugnancy to the Constitution of the United States, but we
have repeatedly held that such certificate is insufficient to give
us jurisdiction where it does not appear in the record, and that
its office is to make more certain and specific what is too general
and indefinite in the record.
Lawler v.
Wallker, 14 How. 149;
Gross v. United States
Mortgage Co., 108 U. S. 477. It
is said in
Lawler's case that
"the
Page 180 U. S. 49
statutes complained of in this case should have been stated.
Without that, the court cannot apply them to the subject matter of
litigation to determine whether or not they have violated the
Constitution or laws of the United States."
See also Railroad Co. v.
Rock, 4 Wall. 177;
Parmelee v.
Lawrence, 11 Wall. 36;
Powell v. Brunswick
County, 150 U. S. 433, and
cases cited.
The writ of error is therefore
Dismissed.
