A simple breach of a contract by a municipality does not amount
to an act impairing the obligation of the contract.
A statute authorizing the issuing of bonds for the purpose of
constructing a public utility cannot impair the obligation of a
contract made subsequent to the enactment of such statute.
The breach of a contract is neither confiscation of property nor
the taking of property without due process of law.
St. Paul Gas
Light Co. v. St. Paul, 181 U. S.
145.
Where diversity of citizenship does not exist and plaintiff's
claim is based on a simple breach of contract by a municipality,
the case is not one arising under the contract or due process
clause of the Constitution, and the Circuit Court has not
jurisdiction.
Where the Circuit Court dismisses a bill on the merits, but it
appears that jurisdiction did not exist, the decree must be
reversed and the cause remanded with instructions to dismiss for
want of jurisdiction.
McGilvra v. Ross, 215 U. S.
70.
The facts, which involve the jurisdiction of the circuit court
of cases arising under the Constitution and laws of the United
States, are stated in the opinion.
Page 220 U. S. 463
MR. JUSTICE McKENNA delivered the opinion of the Court.
It is contended that this case involves the construction or
application of the Constitution of the United States, and that
therefore the appeal has been taken directly to this Court from the
circuit court.
The appellant, we shall call it the drainage company, is a
corporation organized under the laws of Oklahoma; the appellees are
the mayor, clerk, and the members of the city council of the City
of Shawnee, a municipal corporation. The Walter Newman Plumbing
Company and Walter Newman are also appellees.
A summary of the facts as presented by the bill is as follows:
the City of Shawnee, a city of the first class under the laws of
the Territory of Oklahoma, granted by an ordinance (No. 228) to De
Bruler-Newman & Company, their successors and assigns, the
right, for the period of fifty years, to build and maintain a
system of sewerage, with the necessary branches and appurtenances
essential to the same, "along certain lines" in the city. It was
provided that the city should have the right to purchase the system
at the expiration of a period of fifteen years at the exact cost of
its construction. And further, that, if the city did not desire to
make the purchase, the ordinance should run for fifty years. There
was a time fixed for the commencement and completion of the
system.
The ordinance was amended by a subsequent ordinance (No. 241),
by making the term of the right twenty-one years, and ratifying all
the other provisions of the first ordinance.
On the first of February, 1902, De Bruler-Newman & Company
assigned their rights under the ordinance to the
Page 220 U. S. 464
drainage company. The assignment was ratified by the city by an
ordinance (No. 242) passed February 26, 1902, and the drainage
company authorized to mortgage the rights and properties in a sum
not exceeding $25,000. The ordinance also provided that the city
should have the right to purchase the system at the exact cost of
its construction or any extension of it after the expiration of
fifteen years.
De Bruler-Newman & Company commenced and continued the
construction of the system until the assignment to the drainage
company, as above stated, and after the assignment, the drainage
company conducted its construction "and extended its mains and
laterals over and throughout the limits" of the city, and expended
and invested therein $40,000, and issued its bonds and notes in
pursuance of ordinance No. 242, and secured the sum by a mortgage
on the property and franchises. The company performed its duties to
the city, met all of the demands for sewerage purposes, and carried
out the terms and conditions of the ordinance until the
twenty-second of December, 1906, at which time it sold and
transferred its main line to the city. The company is the owner of
the rest of the property, which is of the value of $30,000 and
which is regularly assessed and pays to the city its just property
taxes.
On the first of December, 1901, the city passed an ordinance
providing that, wherever the system was extended, "all overground
closets should be declared a public nuisance," but after the
company had extended the system, the ordinance was repealed, and
the city has habitually and systematically discouraged, and by
divers means has attempted to impair, the investment of the
company.
On the sixth of November, 1906, after certain proceedings had, a
question was submitted to the voters of the city whether bonds
should be issued in the sum of $165,000 for the construction of a
sewer system, which was duly
Page 220 U. S. 465
carried. The drainage company then commenced a suit in the
district court of the county to enjoin the city from constructing
and maintaining a sewer system in the without having purchased the
company's system or compensated it therefor, which suit was
regularly tried and a decree rendered that the company had a legal
and valid franchise, and that it "was authorized by such franchise
to carry on the business of operating the said system of sewerage,"
and that the construction and operation of a sewer system by the
city in the immediate vicinity of the company's system would
confiscate its property and depreciate the value of the bonds
thereon. The city was enjoined from constructing its system until
the company's main sewer should be condemned or purchased by it,
and, in the event that it should condemn or purchase the main
sewer, the mayor and councilmen were enjoined from preventing the
company
"from connecting with any main sewer of the said defendant [the
city] free of charge, and to use the same by such connection with
the district sewers and laterals"
belonging to the company in operation at the date of the
rendition of the decree.
The legality of the election at which bonds were authorized to
be issued by the city to the amount of $165,000 was adjudged.
Subsequent to this decree, to-wit, on the third March, 1907, the
company and the city entered into a contract, Exhibit E, by which
the company sold to the city all of its main line of sewer for the
consideration of $6,900, it being provided that the city would
recognize the company's rights to the laterals which were then laid
in the city, and which were of the value of $30,000.
It was further provided that, at such time as the city should be
divided into sewer districts for the purpose of laying and
constructing laterals in the districts, the city would cause the
property of the company to be appraised by a commission in case
agreement could not be had as to
Page 220 U. S. 466
the price thereof. The price being fixed, the city was to "use
all lawful means to tax up said laterals at the price agreed upon,
to the abutting property, and deliver the tax warrants to the"
company, which should "be in full payment for such laterals,
insofar as the abutting property" was concerned. It was provided
that the city should not be liable for the payment of the warrants,
and that it did "not attempt to bind itself any further than
warranted and permitted by law."
On the first day of June, 1908, the company, in order to comply
with the contract above referred to, submitted to the city a
proposition offering to relay and lower all of the laterals owned
by it, to the depth required by the plans and specifications, and
under the directions of the city engineer, and at his estimated
cost, if any of the same were not of such depth, which offer was
refused. The city, in disregard of the judgment in favor of the
company and of the contract with it, above referred to, entered
into a contract with the Newman Plumbing Company (one of the
appellees) by which the latter was granted a contract to lay the
laterals necessary and desired by the city, "and in the vicinity
and in the same streets and alleys which are now occupied by the
laterals" of the company, and, unless enjoined, will proceed with
the performance of the contract, and if it be performed, the city
will cause its citizens to connect with the laterals, because it
must tax to build and maintain them, "and no other or further
consideration would be required," and the citizens whose property
is connected with the company's system would be taxed to maintain
the system, whether connected with it or not, and its property,
which is now of the value of $30,000, being wholly underground,
would be worthless. The company is ready and willing to carry out
its contract above referred to (Exhibit E), and the citizens of the
several sewer districts are willing that their property be taxed as
provided, but that the city, in disregard of the
Page 220 U. S. 467
contract, allowed the Newman Plumbing Company to build new,
separate, and independent laterals in the sewer districts.
The contract of March 3, 1907, between the company and the city
was made in consideration of the city's recognizing the rights of
the company and the performance by the city of the matters agreed
to be performed by it, which it has not done, "but, for the purpose
of confiscating" the company's "property, and rendering it
worthless and valueless, and in total disregard of its contract,"
has let the contract, as above mentioned, to the Newman Plumbing
Company, although the laterals of the company "were, on the third
day of March, 1907, adequate to accommodate connection" with the
city's main sewer, and if the same are inadequate, the company has
offered and offers to make them adequate.
The city has refused to carry out the contract, for the purpose
of confiscating the company's property and of appropriating the
same without due process of law, and that the contract with the
Newman Company is void, as it impairs the obligation of the
contract of the city with the company, and is a confiscation of the
company's property.
The city has attempted to assess the cost of the laterals laid
by it upon the abutting property owners and the property of the
company, for the purpose of damaging the company, and for no other
purpose.
The contract (Exhibit E) was made by the city under the
authority of an act of Congress, being the same under which the
bonds for $165,000, above referred to, were issued, and its
contract was in all respects legal and valid, and the company is
entitled to have it enforced and the defendants (appellees)
enjoined from violating it.
The company has no adequate remedy at law, and is entitled to an
injunction against violating the rights of the company, as set
forth in the bill, and to have a mandatory
Page 220 U. S. 468
injunction, requiring the city "to conform to said contract and
said decree." The prayer of the bill is that the city be enjoined
from constructing laterals where the company's laterals "are
situated and were situated on the third of March, 1908, and from
doing or performing anything that tends to appropriate the
property" of the company "without due compensation, or does impair
the obligations of the contract of the parties, or deprive" the
company "of its property without due process of law." General
relief is also prayed.
There was a plea to the jurisdiction, stating as ground thereof,
among others, that the allegations of the bill did not present a
case of the violation of the Constitution of the United States. A
demurrer to the bill was also filed, repeating the ground stated in
the plea and setting forth the further ground that the drainage
company had "a full, complete, and adequate remedy at law." The
bill was subsequently amended by alleging specifically that the
amount involved was more than $2,000, and a temporary injunction
was granted.
A general demurrer was filed to the amended bill for want of
equity, which was sustained, and the temporary injunction dissolved
and the bill dismissed.
No opinion was filed in the case, and the grounds upon which the
demurrer was sustained we can only collect from the order allowing
an appeal directly to this Court, and from the assignments of
error. By the latter, the action of the court is attacked as
deciding that the ordinance of the city granting the right to the
drainage company to occupy the streets of the city "with its
laterals, mains, and connections," that the decree of the district
court, mentioned in the bill, and the subsequent contract between
the company and the city, did not impair the obligations of the
contract with the company, in violation of the provisions of the
Constitution of the United States, and that the action of the city
in tearing up the mains and
Page 220 U. S. 469
laterals of the company was not a confiscation of its property
without due process of law.
These assignments therefore present the question for our
decision, and it is these that counsel have discussed in their
briefs. Appellant refers to the plea filed to the jurisdiction of
the circuit court as follows:
"The respondent (appellee) presented a plea to the jurisdiction
of the court, . . . which plea was by the court duly overruled, but
which question will probably be presented in this court."
To sustain the jurisdiction, appellant advances the propositions
(1) that the city had the power to pass the ordinance by which it
granted to appellant's predecessor and to appellant the franchise
to construct a sewer system; (2) that the original franchise
constituted a contract between the company and the city, and that
this contract had been construed and adjudicated by the district
court of the Territory of Oklahoma as being exclusive, and as
prohibiting the city from building and maintaining a public sewer;
(3) that the subsequent contract with regard to laterals was a
valid contract, and that the contract with the Newman Plumbing
Company to build a public sewer, as set out in the bill, impaired
its obligation, and appropriated and deprived the company of its
property without due process of law. All these propositions, it is
said, present federal questions.
It is manifest that the stress of the case is upon the contract
mentioned in the third proposition. The rights conferred by the
ordinance were exercised for four years, and no interference with
them is asserted except by the bond election of November 6, 1906.
The purpose of the suit in the district court of the territory was
to restrain the issue of the bonds on the ground that two-thirds of
the voters had not voted for the same, and that the building of a
public sewer system would affect and impair the rights of the
company, much in the same way as detailed in the
Page 220 U. S. 470
bill in this case. There was no allegation of the impairment of
the contract constituted by the ordinance. But it was alleged that
the bond election was illegal, and that, under the laws of the
territory and the Act of Congress applicable thereto, the city had
no power to construct a sewer system of its own under the
circumstances detailed, and no authority under the law to in any
manner destroy the value of the company's property or to confiscate
the same and to deprive the company of its vested rights and
interests by virtue of the ordinance without just compensation.
It was prayed that the city be enjoined from issuing the bonds
or causing a levy to be made upon the property of the company, or
from doing anything which would tend to depreciate the property of
the company.
It was decreed, as we have seen, that the drainage company had a
legal franchise to build a sewer system, and that the construction
by the city of a system in the immediate vicinity of the company's
would confiscate its property and depreciate the value of the bonds
thereof. But the bond election was declared legal, and that, under
the Act of Congress of March 4, 1898, the city ought to issue the
bonds, as directed, for the construction of sewers, among other
purposes. The city, however, was enjoined from building or
providing a sewerage system in the vicinity of that of the company
until after it should purchase or condemn such system. It was
further adjudged that, in the event the city should condemn or
purchase the main sewer of the company, it be enjoined from
preventing the company from connecting with the main sewer free of
charge, and to use the same by such connections for all district
sewers and laterals belonging to the company in operation at the
date of the rendition of the decree.
The rights of the parties as fixed by this litigation are clear.
The company was adjudged to have a franchise to operate a sewer
system, and that, under the franchise, the company, "among other
things, constructed a main
Page 220 U. S. 471
sewer" from and to certain points, "together with certain
manholes, connections, and bulkheads." It was valued at $6,900. The
city's right to build a system was adjudged, but it was enjoined
from building in the vicinity of that of the company. Its right to
purchase or condemn the latter was recognized, but it was decreed
that, until such right should be exercised, the city was enjoined
from preventing the company from connecting all of its district
sewers and laterals with the main sewer.
The rights of the parties thus being fixed by the decree, they
entered into a contract in March, 1907, by which the city purchased
the main sewer of the company, and agreed to take over the laterals
of the company in the way we have pointed out, to be paid by tax
warrants, the city not binding itself for the payment in any
way.
The city, it is alleged, has not attempted to comply with the
contract, but, on the contrary, has made a contract with the Newman
Plumbing Company to lay the laterals it desires. A simple breach of
contract is therefore alleged on the part of the city. We are
pointed to no law impairing the obligation of the contract. The
statute under which the bonds were authorized to be issued is not
such a law. It was passed before the contract was made. The breach
of a contract is neither a confiscation of property nor a taking of
property without due process of law. The case therefore comes
within the principles announced in
St. Paul Gas Light Co. v.
St. Paul, 181 U. S.
145.
It is clear therefore that, on the face of the bill, the circuit
court had no jurisdiction of the suit, there being no diversity of
citizenship and no real and substantial question arising under the
Constitution of the United States being presented by the bill.
The bill was dismissed by the Circuit Court apparently on the
merits. It should have been dismissed for want of jurisdiction. The
decree therefore must be reversed,
Page 220 U. S. 472
and the cause remanded to the Circuit Court with directions to
sustain the demurrer for want of jurisdiction, and on that ground
dismiss the bill.
McGilvra v. Ross, 215 U. S.
70,
215 U. S. 80.
So ordered.