Plaintiff in error, in 1900, under the Michigan Street Railway
law (Laws 1867, vol. 1, p. 46; Comp.Laws 1897, c. 168), acquired by
purchase certain street railway lines in the City of Detroit, with
their franchises, and, soon afterwards, certain suburban lines,
with their franchises. The latter lines connected with the former
at the city boundary, but lay wholly within adjacent village and
township territory. The franchises for the city lines had arisen
through ordinances of the city, among them ordinances passed in
1889, which placed special restrictions on fares, and were accepted
by the then owners of the city properties. The franchises for the
suburban lines had arisen through village and township ordinances
which fixed the fares upon a basis more favorable to the respective
grantees. Until all were acquired by the plaintiff in error, the
city properties had been owned and held independently of the
suburban properties. Plaintiff in error united the properties thus
acquired under one organization. Thereafter, by acts of the
legislature passed in 1905 and 1907, the limits of the city were so
extended that portions of the two outlying railways were embraced
therein. These acts
Page 242 U. S. 239
contained no reference to existing contracts nor specific
mention of street railway rights, but each provided that the
territory annexed should be subject to all the laws of the state
applicable to the city and to all the ordinances and regulations of
the city, with exceptions not here material. This litigation
resulted from the contention of the city (which the state court
sustained) that the outlying lines, insofar as they had come within
the city through its extension, came also within the fare
restrictions of the city ordinances of 1889.
Held:
(1) Upon consideration of the village and township grants and
the law under which they were made (Act of 1867, §§ 13, 14 and 20),
that the right to charge fare as therein permitted, upon the lines
covered by those grants, was a valid right of contract whose
obligation could not constitutionally be impaired by subsequent
state legislation.
(2) That, conceding the validity of the Acts of 1905 and 1907 as
annexation acts, yet an impairment of this contractual right,
resulting from the effect given to them by the decision of the
state court combined with the construction of the city ordinances
as contractually binding the plaintiff in error to submit to their
fare restrictions on all of its lines within the city as so
extended, was an impairment attributable to the annexation acts as
well as to the construction of the city ordinances.
(3) Therefore, whether the agreements imported by the ordinances
of 1889, when properly construed, were operative in the added city
territory was a question touching the merits of the case, and not
the jurisdiction of this Court.
(4) That, read with the other city ordinances under which the
franchises for the city lines were granted, the ordinances of 1889,
in requiring one of the predecessors of plaintiff in error to carry
passengers at reduced rates "over any of its lines in said city"
and in requiring another to apply single fares and reduced rates
"over the entire route of said company," were not intended to apply
prospectively to lines which those companies might afterwards own
within subsequent additions to the city.
(5) Even if such extended construction were allowable in respect
of lines subsequently built under the actual or assumed authority
of the ordinances of 1889, it could not be allowed in derogation of
rights, privileges, and franchises -- especially as to fare --
arising independently under the township and village ordinances and
acquired by plaintiff in error by purchase before the city was
extended. Michigan Street Railway Act of 1867, § 15; Comp.Laws,
1897, § 6648, applied.
Page 242 U. S. 240
A grantee of a public grant may not be compelled to suffer the
ills of a strict construction in one aspect without being accorded
the benefits necessarily flowing from that construction in
others.
Notwithstanding statements in
Henderson Bridge Co. v.
Henderson City, 141 U. S. 679,
141 U. S. 689;
173 U. S. 173 U.S.
592,
173 U. S. 602,
it is settled that, when called upon to exercise jurisdiction under
the contract clause, this Court must determine upon its independent
judgment these questions: (1) was there a contract? (2) if so, what
obligation arose from it? and (3) has that obligation been impaired
by subsequent legislation?
162 Mich. 460, 173 Mich. 314, reversed.
The case is stated in the opinion.
Page 242 U. S. 242
MR. JUSTICE PITNEY delivered the opinion of the Court.
These two cases involve identical questions, were argued
together, and may be disposed of in a single opinion. They concern
the rates of fare that may be charged by plaintiff in error upon
certain street railway lines within the present limits of the City
of Detroit, and in both cases it is insisted that the state court
of last resort has given such an effect to statutes enacted in the
years 1905 and 1907 for extending the corporate limits as to impair
the obligation of the contracts contained in franchises theretofore
granted by the governing authorities of the annexed territory to
the predecessors in title of plaintiff in error.
Plaintiff in error was incorporated December 28, 1900, under the
Street Railway Act of 1867 and amendments thereto (1 Mich.Laws
1867, p. 46; Comp.Laws 1897 c. 168), for the purpose, as its
corporate name indicates, of acquiring, maintaining, and operating
various lines theretofore constructed by other companies. Section
15 of the Act (Comp.Laws, § 6448) provides that any street railway
company may purchase and acquire any street railway in any city,
village, or township owned by another corporation, together with
the rights, privileges, and franchises thereof,
"and may use and enjoy the rights, privileges, and franchises of
such company the same, and upon the same terms, as the company
whose road and franchises were so acquired might have done."
Under this authority, it shortly thereafter acquired and united
under one organization certain lines previously constructed and
operated independently throughout the city and its suburbs under
different and distinct franchises, of which the following is a
summary:
In November, 1862, the city, by ordinance, granted to the
incorporators of the Detroit City Railway the right
Page 242 U. S. 243
to construct railways in certain streets, including Jefferson
Avenue, which extends from the center of the city in a
northeasterly direction to and beyond the city limits. All the
lines authorized were to commence at Campus Martius, and run thence
on their several courses to the city limits, and the route along
Jefferson Avenue to the eastern limits was to be completed within
six months after March 31, 1863. In 1873, a section was added
authorizing the construction of a second track along Jefferson
Avenue. In 1862, the city limits on Jefferson Avenue were at Mt.
Elliott Avenue. In 1885, they were extended to a point 200 feet
east of Baldwin Avenue, and while they remained as thus fixed, and
in the year 1889, a supplemental ordinance was passed granting to
the Detroit City Railway, among other things, the right to extend
its double track along Jefferson Avenue from its then present
easterly terminus to the easterly city limits, and fixing a time
within which the same should be constructed. There was a provision
that the additional lines should be operated in connection with and
as parts of the then present system of the Detroit City Railway,
and that the company should agree, among other things, to make
arrangements for carrying passengers between the hours of 5:30 and
7:00 A.M., and between 5:15 and 6:15 P.M., over any of its lines in
the city for a single fare upon tickets sold at the rate of eight
for twenty-five cents, with specified transfer rights.
In 1891, the city limits were further extended along Jefferson
Avenue to Hurlburt Avenue, which was the easterly line of the
township of Hamtramck. The railroad on Jefferson Avenue in the
territory covered by this extension was constructed under
franchises granted by the authorities of that township, respecting
which no question is now raised.
From Hurlburt Avenue eastwardly to the Country Club in the
township of Grosse Point -- a distance of about four and one-half
miles -- the railroad on Jefferson Avenue was constructed under
several grants made by the Township
Page 242 U. S. 244
and Village of Grosse Point and the Village of Fairview, in the
years 1891, 1893, and 1895, and further powers were conferred upon
plaintiff in error, after its acquisition of these lines, by
ordinance of the Village of Fairview, passed May 16, 1905. These
several village and township grants were for terms that have not
yet expired, and contain provisions for five-cent fares within the
territory covered by them.
The Jefferson Avenue lines are operated together as a single
system in connection with lines leading from the city
northwestwardly on Grand River Avenue to and beyond the city
limits, constructed under rights derived by predecessors in title
of plaintiff in error, as follows:
By ordinance of May 1, 1868, the city granted to the
incorporators of the Grand River Street Railway Company the right
to construct lines on certain streets, including Grand River Avenue
to its intersection with the Michigan Central Railway at or near
the then present city limits, with the right to build a second
track within five years after the completion of the first. By § 8,
this line was to be completed to a specified point
contemporaneously with the paving of the street, and thence to the
western city limits whenever public necessity, as determined by the
common council, should require. By Acts of 1875 and 1885, the
limits were extended from the railroad intersection to a point just
beyond the boulevard. By ordinance of August 3, 1888, there was
granted the right to construct single tracks on Grand River Avenue
from its then present terminus to the westerly city limits, and by
ordinance of January 3, 1889, the city granted the right, among
others, to construct a double track railway on Grand River Avenue
from Woodward Avenue to the city limits, and under this authority
tracks were built to the limits just beyond the boulevard. The
latter ordinance required the company to stipulate that it would
sell tickets, eight for twenty-five cents, good over the entire
Page 242 U. S. 245
route of the company, when offered during the morning and
afternoon hours specified in the ordinance passed on the same date
respecting the Detroit City lines and already referred to.
In 1897, the Township of Greenfield granted to the incorporators
of the Grand River Electric Railway (a different corporation from
that last mentioned) a franchise for tracks along the Grand River
Road from the westerly line of the township to the then present
city limits of Detroit, with a right to charge not exceeding five
cents as the fare for any distance in Greenfield, or six tickets
for twenty-five cents, with school tickets at ten for thirty cents.
Under this franchise, a railroad was built along the Grand River
road from the then city limits near the Boulevard throughout the
Township of Greenfield.
As already indicated, all of these lines of railway, with the
appurtenant rights, privileges, and franchises, were acquired by
plaintiff in error shortly after its incorporation, under the
authority of § 15 of the Act of 1867.
Afterwards, by an act of the legislature approved October 24,
1907 (Mich.Laws, Ex.Sess.1907, p. 55), a part of the former Village
of Fairview, including Jefferson Avenue for a distance of about
12,500 feet northeastwardly from Hurlburt Avenue, was annexed to
the City of Detroit. And by Acts of June 16, 1905, and June 19,
1907 (Mich. Local Acts 1905, p. 1144; Local Acts 1907, p. 940), the
city limits were extended northwestwardly along Grand River Avenue
for a distance of about one-half mile in territory previously part
of Greenfield Township. Each of these acts provided that the
annexed territory should be subject to all the laws of the state
applicable to the city, and to all the ordinances and regulations
of the city, with exceptions not now material.
It is the contention of defendants in error that the provisions
respecting fares in the two ordinances of January 3, 1889, assented
to by the predecessors of plaintiff in error
Page 242 U. S. 246
in the ownership of the city lines on Jefferson and Grand River
Avenues were intended to be applicable throughout the city as it
might from time to time be enlarged, and that plaintiff in error is
bound by the limitations of those ordinances as to all its lines
within the city, not only as its limits existed in 1889, but also
including the territory annexed in 1905 and 1907.
In case No. 1, the supreme court of the state sustained the
imposition of a fine for failure to accept workingmen's tickets, so
called, within the hours prescribed by the ordinance of 1889 upon
the Jefferson Avenue line within the territory formerly part of the
Village of Fairview, but annexed to the city by the Act of October
24, 1907. 162 Mich. 460.
In No. 4, the court sustained a judgment awarding a mandamus
requiring plaintiff in error to observe the provisions of the
ordinances of 1889 upon the entire Jefferson Avenue-Grand River
Avenue route, so far as included within the city limits as extended
in 1907. 173 Mich. 314.
In each case, plaintiff in error seasonably and expressly
insisted that the several township and village grants above
referred to were subsisting and valid contracts at and before the
Legislature of Michigan passed the acts extending the city limits,
and that those acts, if so construed or applied as to affect or
modify the contracts, were in conflict with § 10 of Article I of
the Constitution of the United States. And it is upon the
overruling of these contentions that the cases are brought here,
under § 237, Judicial Code.
Defendants in error challenge our jurisdiction, upon the ground
that the judgments of the state court of last resort were based
solely upon the meaning that it attributed to the ordinances of
January 3, 1889, without reference to any subsequent
legislation.
It is true, as this Court has many times decided, that the
"contract clause" of the Constitution is not addressed to
Page 242 U. S. 247
such impairment of contract obligations, if any, as may arise by
mere judicial decisions in the state courts without action by the
legislative authority of the state.
Cross Lake Shooting &
Fishing Club v. Louisiana, 224 U. S. 632,
224 U. S. 639;
Rank v. Mangum, 237 U. S. 309,
237 U. S.
344.
But, in this case, there were state laws passed subsequent to
the making of the alleged contracts in question, in the form of the
legislation of 1905 and 1907 extending the corporate limits of the
city. And it is not correct to say that the decisions of the state
court turned upon the mere meaning of the contracts, without
reference to these subsequent laws. Assuming what in effect is
conceded, that the village and township franchises constituted
contracts within the protection of the federal Constitution, the
force of the decisions was to abrogate the rights acquired by
plaintiff in error through its acquisition of the suburban lines
not merely because of the assent of the owners of the city lines to
the ordinances of January 3, 1889, but because of the combined
effect of those ordinances and the acts of the Legislature of
Michigan that thereafter extended the city limits. It is true that
no question is or can be here made respecting the authority of the
legislature to add new territory to the city, and it is likewise
true that the annexation acts contain no reference to existing
contracts, nor any specific mention of the subject matter of street
railway rights. But, in cases of this character, the jurisdiction
of this Court does not depend upon the form in which the
legislative action is expressed, but rather upon its practical
effect and operation as construed and applied by the state court of
last resort, and this irrespective of the process of reasoning by
which the decision is reached or the precise extent to which
reliance is placed upon the subsequent legislation.
McCullough
v. Virginia, 172 U. S. 102,
172 U. S.
116-117;
Houston & Texas Central R. Co. v.
Texas, 177 U. S. 66,
177 U. S. 77;
Terre Haute &c. R. Co. v. Indiana, 194 U.
S. 579,
194 U. S. 589;
Louisiana ex Rel. Hubert v.
New Orleans, 215
Page 242 U. S. 248
U.S. 170,
215 U. S. 175;
Fisher v. New Orleans, 218 U. S. 438,
218 U. S. 440;
Carondelet Canal Co. v. Louisiana, 233 U.
S. 362,
233 U. S. 376;
Louisiana Ry. & Nav. Co. v. Behrman, 235 U.
S. 164,
235 U. S. 170.
The necessary operation of the decisions under review is to give an
effect to the annexation acts that substantially impairs the
alleged contract rights of plaintiff in error as they theretofore
stood, and it makes no difference that that result was reached in
part by invoking the provisions of another agreement supposed to be
binding upon plaintiff in error. Whether the agreement thus
invoked, when properly construed, has the effect attributed to it
is a question that touches upon the merits, and not upon the
jurisdiction of this Court.
Coming, then, to the merits: not only is it not disputed, but it
is not open to serious dispute, that the original village and
township grants were contractual in their nature. It appears that
the recipients of those grants, like their successor, the plaintiff
in error, became incorporated under the Street Railway Act of 1867,
of which § 13 provides that consent for the construction and
maintenance of a street railway is to be given by the corporate
authorities in an ordinance to be enacted for the purpose, and
under such rules, regulations, and conditions as may be prescribed
by such ordinance, but that no such railway shall be constructed
until the company shall have accepted in writing the terms and
conditions upon which they are permitted to use the streets. By §
14, after any city, village, or township shall thus have consented
to the construction and maintenance of street railways, or granted
rights and privileges to the company, and such consent and grant
shall have been accepted by the company, the consent shall not be
revoked or the company deprived of the rights and privileges
conferred. And, by § 20, the rates of toll or fare to be charged by
the company are to be established by agreement between it and the
corporate authorities, and are not to be increased without consent
of
Page 242 U. S. 249
such authorities. It is plain, as was pointed out by this Court
in
Detroit v. Detroit Citizens' St. Ry. Co., 184 U.
S. 368,
184 U. S. 385,
that the legislature regarded the fixing of the rate of fare as a
subject for agreement between the municipality and the company. And
in these cases, as in that, the terms of the several ordinances are
such as clearly to import a purpose to contract under the
legislative authority thus conferred.
But it is insisted -- and to this effect was the decision of the
state court -- that the terms of these contracts were in effect
modified by the assent of the owners of the city lines on Jefferson
and Grand River Avenues to the ordinances of January 3, 1889, and
the subsequent acquisition of these lines by plaintiff in error,
followed by its acquisition of the suburban lines. It is, indeed,
argued that the construction placed by the state court upon the
ordinances of 1889 as contracts is not subject to the review of
this Court, and a declaration to this effect is cited from
Henderson Bridge Co. v. Henderson City, 141 U.
S. 679,
141 U. S. 689,
quoted in a subsequent case of the same title in
173 U. S. 173 U.S.
592,
173 U. S. 602.
But, notwithstanding what was there said, it is too well settled to
be open to further debate that where this Court is called upon in
the exercise of its jurisdiction to decide whether state
legislation impairs the obligation of a contract, we are required
to determine upon our independent judgment these questions: (1) was
there a contract?; (2) if so, what obligation arose from it?, and
(3) has that obligation been impaired by subsequent legislation?
Houston & Texas Central R. Co. v. Texas, 177 U. S.
66,
177 U. S. 77;
St. Paul Gaslight Co. v. St. Paul, 181 U.
S. 142,
181 U. S. 147;
Terre Haute &c. R. Co. v. Indiana, 194 U.
S. 579,
194 U. S.
589.
But, of course, in the present cases, the crucial question is
what were the obligations of the contracts as they stood at the
time of the subsequent legislation? And therefore it becomes
material to determine whether, by voluntary action of the parties
between the making of the suburban
Page 242 U. S. 250
grants and the passage of the annexation acts, the obligations
arising out of those grants had been modified. The state court
deemed that the assent of the Detroit City Railway to that
provision of the first-mentioned ordinance of January 3, 1889,
which required it to carry passengers at reduced rates "over any of
its lines in said city" applied to any and all lines it either then
owned or might thereafter acquire, and comprehended all territory
within the limits of the city, including any extension of the
municipal boundaries or of the company's lines within those
boundaries, and that, by the acquisition of the lines of the
Detroit City Railway, plaintiff in error became bound by this
agreement, and was obliged to observe it, even with respect to the
lines that it afterwards acquired as assignee of the Grosse Point
and Fairview franchises, so far as those lines were included in the
extended city limits. It was said (162 Mich. 462) that there were
two methods of extending street railways: one by construction, the
other by purchase under § 6448 (2 Comp.Laws 1897), being § 15 of
the Act of 1867; that "the purchased railway becomes as much a part
of the system as does the railroad as constructed," and that the
ordinance of 1889 was made in view of the power of the legislature
to increase or diminish the territory within the city, and the real
intent was to provide for single fares within the city limits as
they should from time to time be fixed. In 173 Mich. 314, similar
reasoning was applied to the ordinance of 1889 respecting the Grand
River Avenue line and the obligation imposed upon the owner of that
line to apply the single fare and the reduced rates "over the
entire route of said company." The court considered (173 Mich. 325,
326) that certain of the language used in the original ordinance of
1862 to the Detroit City Railway and in that of 1868 to the Grand
River Street Railway Company showed that the probable growth of the
city and development of its public utilities were anticipated,
and
Page 242 U. S. 251
indicated a purpose that the grants should apply as far as the
city might be extended.
Notwithstanding our disposition to lean towards concurrence with
the view of the state court of last resort in a matter of this
nature, we are unable to accept its construction of the ordinances
of 1889. In the first place, we are unable to view the original
ordinances as intended to extend the rights of the respective
grantees beyond the then existing city limits and as far as the
limits should be extended in the future. Their language does not
seem to us to admit of this interpretation, and the practical
construction placed upon them by the parties was to the contrary.
As the city limits on Jefferson Avenue and on Grand River Avenue
were extended, the respective companies obtained, and presumably
were required to obtain, new grants authorizing an extension of the
railways from their then present termini to the new city limits.
Both of the ordinances of 1889 contained express grants to this
effect with respect to Jefferson Avenue and Grand River Avenue,
respectively. Each of the original city grants, and each of the
ordinances of 1889, contained particular and comparatively brief
limitations of time within which the authorized lines of railway
were to be constructed and placed in operation. For these reasons,
and because in other respects the grants are quite specific in
their terms, and because the city at that time had no authority to
extend its corporate limits nor to make a grant of street railway
rights beyond them, we are compelled to conclude that the
ordinances of 1889 had no such extensive meaning as that attributed
to them by the state court.
Defendants in error invoke the established rule that the terms
of a municipal grant or franchise should be construed strictly as
against the grantee, and as favorably to the grantor as its terms
permit. The state court deemed the rule to be applicable. 162 Mich.
465; 173 Mich. 323. It is at least doubtful, however, whether
the
Page 242 U. S. 252
rule, properly applied to the facts of these cases, does not
bear altogether in favor of plaintiff in error. For, of course, it
is not possible to adopt an extensive construction of the
obligations imposed upon the city companies by the ordinances
without adopting a like construction as to the extent of the
franchises thereby conferred upon the companies. And can it be
supposed that, if either of these companies had claimed the right
to lay down tracks and operate railways in the annexed territory by
virtue of the ordinances of 1889, they would not have been met with
the rule that municipal grants are to be construed strictly against
the grantee, and cannot be extended beyond their express terms? In
any view, the ordinances, just because they were intended to be
contracts, and not merely legislative enactments, ought to be
regarded as having reference to a specific subject matter.
But, were we in error about the construction of these
ordinances, we still think that the acquisition of the city lines
by plaintiff in error, and its subsequent acquisition of the
suburban lines, did not bind it to put the reduced fare provisions
in effect upon the suburban lines if and when the city limits
should thereafter be extended to include any parts of the latter.
If the city lines had been extended into the annexed territory by
either of the city railway companies under any authority conferred
by or assumed under the ordinances of 1889, a very different
question would be presented. But such is not the case. And although
we may follow the state court to the extent of considering the
acquisition of the suburban lines under § 6448, Comp.Laws, as being
in effect an extension of the city railways, we cannot, without
doing violence to the provisions of that section, regard such
acquisition as abrogating any part of the franchise rights that
pertained to the suburban lines, for the section itself declares
that, upon such purchase being made, the purchasing company
"may use and enjoy the rights, privileges, and franchises
Page 242 U. S. 253
of such company, the same and upon the same terms as the company
whose road and franchises were so acquired might have done."
The rate of fare being among the most material and important of
the terms and conditions referred to (
Detroit v. Detroit
Citizens' St. Ry. Co., 184 U. S. 368,
184 U. S. 384;
Minneapolis v. Minneapolis Street Railway Co.,
215 U. S. 417,
215 U. S.
434), we find it impossible to regard the purchase of
the suburban lines, with their rights, privileges, and franchises,
as being in effect an extension of the city lines, but at the same
time an abrogation of an essential part of the rights and
privileges appurtenant to the acquired lines.
The state court cited and relied upon
Indiana Ry. Co. v.
Hoffman, 161 Ind. 593, and
Peterson v. Takoma Ry. &
Power Co., 60 Wash. 406. In their particular facts and
circumstances, those cases differ somewhat from the cases now
before us, and, without stopping here to analyze them, we deem it
sufficient to say that we are unable to accept their reasoning so
far as it is inconsistent with the views we have expressed.
It results that the provisions of the township and village
ordinances respecting the rates of fare remained in full force and
effect after the acquisition of the suburban lines by plaintiff in
error, notwithstanding its previous acquisition of the city lines
or the previous assent of the city railway companies to the
ordinances of 1889. Because of the provision of § 10 of Article I
of the Constitution of the United States, it was not within the
power of the State of Michigan by any subsequent legislation to
impair the obligations of those contracts, and since the judgments
of the supreme court of that state gave such an effect to the
annexation acts of 1905 and 1907, in conjunction with the
ordinances of 1889, as to impair those obligations, the judgments
must be reversed.
We have made no particular mention of an agreement entered into
between the city and plaintiff in error in the
Page 242 U. S. 254
year 1909 because we agree with the state court (173 Mich. 321)
that it was not more than a temporary provision for a
modus
operandi, and had not the effect of waiving any of the rights
of either party.
Judgments reversed, and the causes remanded for further
proceedings not inconsistent with this opinion.
MR. JUSTICE CLARKE, dissenting:
I greatly regret that I cannot concur in the decision just
announced. The opinion of the majority of the Court plainly regards
the act of the Legislature of the State of Michigan, extending the
corporate limits of the City of Detroit, as a valid law, passed in
the exercise of an undoubted power in the legislature to deal as it
does with the municipal corporations of that state, and its
validity for the purposes for which it was intended is not
questioned. It will remain a valid law after this decision as it
was before. In substance, the decision of this Court is that the
Supreme Court of Michigan, in deciding that there is an implied
condition in the contract between the City of Detroit and the
railway company that the rates of fare therein provided for shall
apply within the city limits when extended, and in requiring the
railway company to accept the same fares throughout the new city
limits as were accepted throughout the former limits, gives an
effect to the extension act which impairs the railway company's
contract with the city. I am of the opinion that for the state
supreme court thus to interpret the terms of the contract of the
railway company with the city is not to give an effect to the valid
extension act of the legislature which violates the provision of
the Constitution prohibiting a state from passing "any law
impairing the obligation of contracts." The passing of the valid
extension act merely created a situation under which the implied
condition,
existing in the fare contract from its
Page 242 U. S. 255
beginning, finds an application to the new territory.
This is giving effect not to the terms of the act of the
legislature, but to the terms of the contract with the city, and
the most that can be said against the decision of the Supreme Court
of Michigan is that it gives an erroneous construction to the
contract. But, since it is settled by many decisions of this Court
that the contract clause of the federal Constitution does not
protect contracts against impairment by the decisions of courts
except where such decisions give effect to constitutions adopted or
laws passed subsequent to the date of such contracts (
Cross
Lake Shooting & Fishing Club v. Louisiana, 224 U.
S. 632), I am of opinion that there is no federal
question before this Court in this case, and that the writ of error
should be dismissed. This is a high and delicate power which the
Court is exercising in this case, and it should be resorted to only
in cases which are clear, and, for the reasons thus briefly stated,
I am convinced that this is not such a case.
I am authorized to state that MR. JUSTICE BRANDEIS concurs in
this dissent.