Corporations of Ohio claimed the right to operate a street
railway in Cincinnati according to the terms of various grants,
etc., under which it had been built in sections or links. A
revocable ordinance of the city council, after reciting that, as to
portions of the streets so occupied, "alleged grants" had expired,
and on others there never had been any grants and the companies had
no longer any right to occupy the same, provided that the companies
might continue
Page 245 U. S. 447
to operate, but only from day to day, and subject to new and
material conditions, as to fares, transfers, etc.; that should it
be adjudged that they were without continuing right in respect to
portions only of the streets occupied, the ordinance should be
construed to forbid further operation on such portions except on
compliance with all of its terms and conditions; that continued
operation "on said streets" should be deemed an acceptance by the
companies of the ordinance and all its terms; that in case they
refused or failed to comply with it on its effective date, the city
solicitor should "take such legal proceedings as may be proper and
necessary" to enforce its provisions, or to require them "to
abandon the streets covered by this ordinance, and to remove their
tracks from said streets." Averring that the ordinance impaired and
attempted to impair the obligations of the several grants etc.,
that its enforcement would deprive them of their property without
due process or compensation, and that, under it, the city
threatened to, and unless restrained would, interfere with and
prevent the maintenance and operation of the railway over the
routes described in the grants aforesaid and under authority and in
accordance with the terms thereof, thus causing irreparable injury,
the companies, by their bill, filed in the district court before
the ordinance became effective, prayed that it be decreed void and
that the city be perpetually enjoined from such interference, in
any way, as to the whole and any part of the railway, and from
enforcing, or taking any steps to enforce, the ordinance in whole
or in part. The city's answer denied jurisdiction, that the bill
stated a cause of action, that the companies had any right to
operate as to certain portions of the line, that the city would
interfere with or prevent the maintenance and operation by
plaintiffs of the said railway, or cause any damage or injury to
plaintiffs, and averred that enforcement of the ordinance was only
authorized, and only would be sought, by due court proceedings.
After full hearing, the district court upheld the grants, etc.,
involving complicated questions, under the laws of Ohio, and
granted the injunction as prayed.
Held (1) that the
jurisdiction of the district court was properly invoked, and that
it had power to adjudicate the issues presented, but (2) that, as
counsel for the city in this Court had plainly conceded what did
not sufficiently appear by the answer,
viz, that, except
as it authorized proceedings in court. the ordinance could have no
effect prior to a judicial determination, and that no other steps
could be taken under it, or would be attempted, by the city's
officers to enforce it, the decree should be modified so as to
exclude any finding upon the validity of the franchises and rights
claimed by plaintiffs,
Page 245 U. S. 448
and so as to limit affirmative relief to an injunction
restraining the city (a) from taking any steps other than necessary
court proceedings to enforce the ordinance prior to final
adjudication of the controversies involved, and (b) from ever
setting up claim that plaintiffs' continued operation of cars over
streets now used, pending such final adjudication, does or will
amount to an acceptance of the ordinance or in any way prejudice
their rights.
Upon appeal, the cause is subject to review upon both law and
facts, and that relief should be granted which is proper upon the
case as it develops in this Court.
Modified and affirmed.
The case is stated in the opinion.
MR. JUSTICE McREYNOLDS delivered the opinion of the court.
The Cincinnati & Hamilton Traction Company is owner and the
Ohio Traction Company, lessee and operator of an electric railway
line extending from Vine Street,
Page 245 U. S. 449
Cincinnati, northward along Erkenbrecher Avenue, Carthage Pike,
Wayne Avenue, Springfield Pike, etc., some five or six miles to the
city limits. It was built in sections or links under grants,
ordinances, permissions, contracts, etc., whose validity, effect,
and continuation have given rise to conflicting contentions, based
primarily upon different interpretations of statutes and laws of
Ohio. April 21, 1914, the city council passed the ordinance copied
in the margin.
*
Page 245 U. S. 450
Shortly before the ordinance was to become effective, appellee
companies -- both Ohio corporations -- filed a bill in the United
States District Court, Southern District of Ohio, wherein they set
out their interest in the railway, the various grants, ordinances,
contracts, etc., under which it had been constructed, together with
rights claimed. It then alleged:
"Notwithstanding the contract rights of plaintiffs as
hereinabove set forth, the defendant,
Page 245 U. S. 451
the City of Cincinnati, on or about the 21st day of April,
passed . . . [the ordinance copied
ante]. In and by said
ordinance, said city repudiated the grants aforesaid, and thereby
impaired and attempted to impair the obligations of the aforesaid
contracts and each of them, in violation of Article 1, Section 10,
of the Constitution of the United States, and the enforcement of
said ordinance will deprive plaintiffs of their property without
due process of law and without compensation, in
Page 245 U. S. 452
violation of the Constitution of the United States, and
particularly Article XIV in amendment thereto. . . . The defendant,
the City of Cincinnati, by its agents and employees, under the
pretended authority of the ordinance of the City of Cincinnati
aforesaid, threaten to and will, unless restrained by order of this
court, interfere with and prevent the maintenance and operation by
plaintiffs of said electric street railway over the routes
described in the grants aforesaid and under authority and in
accordance with the terms and conditions thereof, which will cause
great and irreparable injury to these plaintiffs for which they
have no adequate remedy at law."
It prayed:
"That the court decree said ordinance passed April 21, 1914, to
be null and void, and that the defendant, the City of Cincinnati,
and its officers, agents, and employees, be enjoined by a
restraining order, preliminary injunction, and final decree, from
interfering or attempting to interfere in any way with the
maintenance and operation, or either, by the plaintiff, or either
of them, of said line of electric street railway or any part
thereof, and from enforcing or attempting or taking any steps to
enforce the pretended ordinance of the City of Cincinnati
aforesaid, or any part thereof, and from taking any action which
would alter, impair, limit, or destroy the right and title of
plaintiffs under their said grants and contracts."
Answering, the city denied jurisdiction of the court; that the
bill stated a cause of action; that complainant companies had any
right to operate a railway on Erkenbrecher Avenue or over portions
of Carthage Pike or over streets and roads formerly in the Village
of Hartwell, etc., and further:
"the defendant denies that, under the authority of said
ordinance, or otherwise, it will, unless restrained by this Court,
interfere with or prevent the maintenance and operation by the
plaintiffs, or either of them, of said electric street railway, or
cause any damage
Page 245 U. S. 453
or injury of any kind to the plaintiffs, or either of them, and
defendant avers that the enforcement of said ordinance is only
authorized and will only be sought by and through an order of a
court of competent jurisdiction first had and obtained, and after a
hearing on due and reasonable notice to all interested
parties."
Having finally heard the cause upon a record presenting many
difficult problems arising under local laws, the trial court
sustained its jurisdiction, adjudicated in favor of the companies
in respect of the grants, ordinances, and contracts relied upon,
and granted an injunction as prayed. The city has appealed, and the
questions presented below have again been elaborately discussed
before us.
There is radical disagreement concerning interpretation and
effect of the ordinance of April 21st. Counsel for appellees
maintain:
"The city does not seek to eject plaintiffs from the occupancy
of any particular part of the streets in question, but undertakes
by the ordinance complained of to require plaintiff, in disregard
of its rights under existing contracts, some of which the ordinance
assumes may be good, either to abandon its line over the route in
question, or to operate it on a day-to-day license and at a reduced
fare. . . . The question therefore is not whether there is one bad
link, but whether there is one good link, because, if there is a
good link, the ordinance impairs its obligation."
"All parts of the ordinance go into operation at once at 'the
earliest period allowed by law,' which is thirty days after it is
filed with the mayor. The day the ordinance takes effect, it gives
to passengers the right to a reduced fare and transfers, and at the
same time the companies, by operating on the said streets, are
deemed to have accepted all the terms of the ordinance, which apply
to all the links. This operation of the ordinance, and these
results, do not await any litigation or any adjudication of any
kind. "
Page 245 U. S. 454
"While Section 5 authorizes and directs the city solicitor in
the event of noncompliance to take the proper legal proceedings to
enforce the ordinance, they might not be taken, and the operation
of the ordinance does not await the beginning or outcome of such
proceedings, nor is the city precluded by Section 5 from enforcing
it in any other way, by tearing up the tracks or otherwise."
In the brief for appellant, it is said:
"These two provisions [§§ 3 and 5] clearly indicate that the
rights of the city must be and will be established only after an
orderly procedure through the courts, and it was contemplated and
directed that this should be through legal proceedings brought by
the solicitor. . . . The fair reading of Section 4 is that the
operation of the cars over the portion of the line where it is
adjudged appellees have no franchise shall be an acceptance of the
ordinance."
During the oral argument here, counsel for the city expressly
affirmed that, properly construed and except as it authorized
proceedings in court, the ordinance could have no effect prior to a
judicial determination of the parties' rights; that, until this was
had, no other steps could be taken, or would be attempted, to
enforce the ordinance, and noncompliance therewith would in no wise
injuriously affect the appellees, and, moreover, that the
above-quoted paragraph from the answer was intended to express that
view.
We think the jurisdiction of the court below was properly
invoked, and that it had power to adjudicate the issues presented.
Detroit v. Detroit Citizens' St. Ry. Co., 184 U.
S. 368;
Owensboro v. Cumberland Telephone Co.,
230 U. S. 58.
As the cause is here upon appeal, it is subject to review upon
both law and facts; we should grant the relief proper under
circumstances now disclosed.
Wiscart v.
Dauchy, 3 Dall. 321, 327 [argument of counsel --
omitted];
Capital Traction Co. v. Hof, 174 U. S.
1,
174 U. S. 37;
Daniell's Ch. Pl. & Pr. (5th ed.) *1484, *1489;
Elliott v.
Toeppner, 187 U. S. 327,
187 U. S.
334.
Page 245 U. S. 455
The answer failed to set out with adequate precision, if at all,
what counsel now claim were the powers of the city's officers
under, and its purposes in respect of, the ordinance; otherwise, a
different result might have been reached in the trial court.
Accepting and, for all purposes of the cause, relying upon
representations and admissions of counsel for the city as above
detailed, we conclude that the decree below should be modified so
as to exclude from it any finding concerning validity of franchises
involved or rights claimed by appellees, and to limit the
affirmative relief granted to an injunction restraining the city
(1) from taking any steps to enforce the ordinance (except
institution of necessary court proceedings) prior to final
adjudication of controversies involved, and (2) from ever setting
up a claim that appellees' continued operation of cars over streets
now used pending such final adjudication does or will amount to an
acceptance of the ordinance by appellees, or in any way prejudice
their rights.
As modified, the decree below is affirmed. Appellant will pay
all costs.
Modified and affirmed.
*
"
AN ORDINANCE NO. ___"
"Specifying the terms and conditions upon which the Cincinnati
& Hamilton Traction Company and the Ohio Traction Company, as
its lessee, may operate street cars on certain streets of the city,
and authorizing the city solicitor to take legal proceedings to
enforce this ordinance."
"Whereas, the Ohio Traction Company, as lessee of the Cincinnati
& Hamilton Traction Company, is new operating street cars on
certain streets of the City of Cincinnati; and"
"Whereas, on portions of the streets so occupied and used
alleged grants have heretofore expired, and on other portions,
including that part of Carthage Pike formerly known as Springfield
Pike, there never have been any grants, and said companies have no
longer any right to occupy the same: Now therefore"
"Be it ordained by the Council of the City of Cincinnati, State
of Ohio:"
"Section 1. That, upon the terms and conditions in this
ordinance specified, and upon no other, permission is hereby
granted to said the Cincinnati & Hamilton Traction Company and
to the Ohio Traction Company, as its lessee, to continue from day
to day only from the date on which this ordinance becomes effective
to operate street cars on the following streets, to-wit:"
"Erkenbrecher Avenue from Vine Street and Erkenbrecher Avenue to
Carthage Avenue; thence north on Carthage Avenue and Carthage Pike
(formerly called Main Street) to Lockland Avenue, excepting the
portions in the municipalities of St. Bernard and Elmwood place;
thence north on Lockland Avenue and Anthony Wayne Avenue to the
northern boundary of the city through the district formerly known
as Hartwell, and also from the intersection of Anthony Wayne and
Woodbine (formerly called Rural) Avenues westwardly over Woodbine
Avenue and over De Camp Avenue to Carthage (formerly called
Springfield) Pike; thence north on said Carthage Pike to the
northern boundary of the city in the district formerly known as
Hartwell, on the tracks now existing in said streets."
"Sec. 2. On and after the taking effect of this ordinance, the
operation of street cars on said streets shall be subject to the
same terms and conditions as existed under the prior alleged
grants, if any, so far as not inconsistent with the provisions of
this ordinance, and shall be subject to the following
conditions:"
"A. That the necessary arrangements be made to operate cars from
the aforesaid northern boundary of the city over said streets to
Sixth and Walnut Streets in substantially the same manner and with
substantially the same frequency as now, and as a continuous line,
and that street cars shall be operated."
"B. That, for a continuous trip between any two points between
the aforesaid northern boundary of the city and Sixth and Walnut
Streets, the fare for each passenger shall not exceed five (5�)
cents, except that for children under ten years of age, the fare
shall not exceed three (3�) cents, and children in arms shall be
carried free."
"C. That the necessary arrangements be made so that, without
additional charge, passengers on street cars operated on the
streets mentioned in Section 1, and passengers on street cars
operated by the Cincinnati Traction Company may transfer to and
from either to the other, but transfers given hereunder shall be
good only on the first street car available and on one not going in
a substantially parallel and opposite direction."
"D. That, during the operation of this ordinance, the director
of public service may make from time to time further and reasonable
regulations as to the character, mode, manner, and frequency of
service and maintenance of the street cars and tracks."
"Sec. 3. Should it be adjudged that, on only a portion or
portions of the said streets now occupied by the tracks of said the
Cincinnati & Hamilton Traction Company, the right to operate
street cars has never been granted, or, if granted, has ceased to
exist, then this ordinance shall be construed to forbid the further
operation of street cars on such portions except on the compliance
by the said the Cincinnati & Hamilton Traction Company and the
Ohio Traction Company and each of them with all of the terms and
conditions specified in this ordinance."
"Sec. 4. The continuing by said companies, or either of them, to
operate street cars on said streets shall be deemed an acceptance
of this ordinance and of all the terms hereof."
"Sec. 5. In case the Cincinnati & Hamilton Traction Company
and the Ohio Traction Company, or either of them, refuse or fail to
comply with the terms of this ordinance upon the taking effect
hereof, the city solicitor shall be, and he is hereby authorized
and directed to take such legal proceedings as may be proper and
necessary to enforce the provisions of this ordinance, or to
require the said companies and each of them to abandon the streets
covered by this ordinance, and to remove their tracks from said
streets."
"Sec. 6. Should the Cincinnati & Hamilton Traction Company
and the Ohio Traction Company, or either of them, surrender or
transfer all or any part of their rights, if any, to operate street
cars over all or any part of the aforesaid streets, to the
Cincinnati Street Railway Company, or to the Cincinnati Traction
Company, either or both, this ordinance shall apply also to the two
last named companies, either or both, as the case may be."
"Sec. 7. Should any part of this ordinance be adjudged invalid,
such adjudication shall not affect the validity of the remainder of
this ordinance."
"Sec. 8. This ordinance and any rights granted or acquired
hereunder are subject to repeal, amendment, or revocation in whole
or in part at any time at the will of council."
"Sec. 9. This ordinance shall take effect and be in force from
and after the earliest period allowed by law."
MR. JUSTICE CLARKE, dissenting.
The opinion and and decree announced in this case seem to me so
unsupported by the record and so unusual in character that I am
impelled, reluctantly, to state my reasons for dissenting from
both.
The Court finds that the district court had, and that this Court
now has, jurisdiction in the case such as to warrant permanently
enjoining the City of Cincinnati in the two respects stated in the
opinion, and, with instructions to limit its decree to such an
injunction, the case is remanded to the district court, leaving
open for further litigation the validity and effect of the
ordinance of April 21, 1914 (copied in the margin of the court's
opinion) and of prior grants claimed by the plaintiffs.
Page 245 U. S. 456
Assuming, as we must, that, if the district court had
jurisdiction of the cause, it had authority to go forward and
completely dispose of the controversy, this action taken by the
majority of the Court seems to me to be anomalous, if not
unprecedented.
But my dissent goes also upon the more fundamental ground that
the district court did not have, and that this Court does not now
have, any jurisdiction over the case, for reasons which I stall
state as briefly as I may.
The bill alleges that the plaintiffs and the defendant are all
Ohio corporations, and after setting out in detail the grants which
had been made to the plaintiffs over the various routes described
in the ordinance of April 21, 1914, it continues in paragraphs 13
and 14, as follows:
"13. Notwithstanding the contract rights of plaintiffs as
hereinabove set forth, the defendant, the City of Cincinnati, on or
about the 21st day of April, 1914, passed a certain alleged
ordinance entitled, 'An Ordinance No. ___, specifying the terms and
conditions upon which the Cincinnati and Hamilton Traction Company
and the Ohio Traction Company, as its lessee, may operate street
cars on certain streets of the city,
and authorizing the city
solicitor to take legal proceedings to enforce this
ordinance,' a copy of which is hereto attached, marked Exhibit
A, and made a part hereof.
In and by said ordinance, said
city repudiated the grants aforesaid, and thereby impaired and
attempted to impair the obligations of the aforesaid contracts and
each of them, in violation of Article I, § 10, of the Constitution
of the United States, and the enforcement of said ordinance will
deprive plaintiffs of their property without due process of law and
without compensation, in violation of the Constitution of the
United States, and particularly Article XIV in amendment
thereof."
"14. The defendant, the City of Cincinnati, by its
Page 245 U. S. 457
agents and employees, under the pretended authority of the
ordinance of the City of Cincinnati aforesaid, threatens to and
will, unless restrained by the order of this court, interfere with
and prevent the maintenance and operation by plaintiffs of said
electric street railway over the routes described in the grants
aforesaid and under authority and in accordance with the terms and
conditions thereof, which will cause great and irreparable injury
to these plaintiffs for which they have no adequate remedy at
law."
Since there is no diversity of citizenship, there must be found
in these two paragraphs, if anywhere in the bill, the assertion of
federal right sufficient to give jurisdiction to the district
court.
Confining our attention to paragraph 13. It seems to me very
clear that this paragraph simply alleges that the city passed the
ordinance copied in the margin of the court's opinion, and thereby
"authorized the city solicitor to take legal proceedings to enforce
it." This allegation is emphasized by making the ordinance, by
reference, a part of the bill, which in § 5 specifically provides
that, if the plaintiffs shall fail or refuse to comply with the
terms of the ordinance, "
the city solicitor be and he hereby is
authorized and directed to take such legal proceedings as may be
proper and necessary to enforce the provisions of this
ordinance," or to require the company to remove their tracks
from the streets. The making of this declaration by ordinance, it
is averred, impaired the obligation of the grants, the contract
rights, which the plaintiffs claim they had when the ordinance was
passed. No action other than the passing of the ordinance had been
taken by the city when the bill for injunction was filed; in fact,
the ordinance did not become effective for thirty days after the
bill was filed.
It has been decided by this Court, within recent years at least
twice, that for a municipal corporation to thus
Page 245 U. S. 458
assert by resolution or by ordinance that a claim of contract
right against it is not valid and to direct its legal
representative to test in the courts the right so asserted neither
impairs the obligation of the contract assailed nor deprives the
persons claiming under it of their property without due process of
law.
In
Des Moines .v Des Moines City Ry. Co., 214 U.
S. 179, it was asserted as a ground of federal
jurisdiction that a resolution of the Des Moines City Council was a
law which impaired the obligation of the contract which the railway
company claimed to have with the city, and that, if given effect,
it would deprive the company of its property without due process of
law. The circuit court overruled an objection to its jurisdiction
and granted an injunction against the enforcement of the
resolution. This resolution, in terms, ordered the railway
companies to remove their tracks, poles, and wires from the
streets, and, in case of failure to do so within a time stated, the
city solicitor was "instructed to take such action as he shall deem
advisable and necessary to secure the enforcement of the
resolution." In a unanimous decision, this Court reverses the lower
court, saying:
"We are of opinion that this is not a law impairing the rights
alleged by the appellee, and therefore that the jurisdiction of the
circuit court cannot be maintained. Leaving on one side all
questions as to what can be done by resolution as distinguished
from ordinance under Iowa laws, we read this resolution as simply a
denial of the appellee's claim and a direction to the city
solicitor to resort to the courts if the appellee shall not accept
the city's views. The resolution begins with a recital that
questions as to the railway company's rights have been raised, and
ends with a direction to the city solicitor to take to enforce the
city's position. The only action to be expected from a city
solicitor is a suit in court. We cannot take it to have been within
the meaning of the
Page 245 U. S. 459
direction to him that he should take a posse and begin to pull
up the tracks. The order addressed to the companies to remove their
tracks was simply to put them in the position of disobedience, as
ground for a suit, if the city was right."
Since the court "lays on one side" the distinction between a
resolution and an ordinance, this decision seems clearly to rule
the case at bar.
Again, in
Defiance Water Co. v. Defiance, 191 U.
S. 184, a claim to federal jurisdiction was based on a
resolution of an Ohio city council which it was claimed impaired
the obligation of a contract which the water company had with the
city. But this Court, while finding that the record disclosed the
city as claiming that the water company did not have a valid
contract with the city and that a suit to test its validity had
been instituted in a state court by the city solicitor,
nevertheless held that the action so taken was not obnoxious to the
prohibition of the federal Constitution, and the case was dismissed
for want of jurisdiction.
The ordinance involved in this case, like the one in the
Des
Moines case, having regard to all of its provisions, even
including its title, seems very clearly to be no more than an
assertion on the part of the city council of what it considers the
rights of the city to be with authority and direction to the city
solicitor to resort to the courts to test the validity of the
claims made if they are denied by the traction companies, and the
cases cited are authority sufficient, if indeed authority be
needed, to justify the conclusion that such an expression of
purpose to resort to the courts of the country and to abide by
their decision is not a law impairing the obligation of a contract,
within the meaning of the Constitution.
A careful reading of this ordinance, especially of §§ 3 and 5,
makes it convincingly clear that the writer of it must have had in
mind the decisions which we have cited,
Page 245 U. S. 460
and that he has attempted, successfully it seems to me, to keep
clearly within the law established by them.
The allegation in paragraph 14 of the bill that the city and its
agents and employees threaten to interfere with and prevent the
operation of the street railways states no invasion of a federal
right, unless such action is threatened under warrant of an invalid
ordinance. If the ordinance is valid, it can add nothing to the
other allegations of the bill, and, if invalid, it is futile.
It is impossible for me, also, to share in the interpretation
given to § 4 of the ordinance, which makes it the subject of
special injunctive relief. The section provides that the continuing
to operate cars on the streets in controversy "shall be deemed an
acceptance of this ordinance and of all of the terms thereof."
Considering the ordinance as a whole, and not as if it were a group
of independent provisions, if this section has any meaning at all,
it cannot be more than an assertion on the part of the city, that,
if the companies, without formal acceptance, but without protest,
should continue to operate the lines of railway, such action would
be taken as implying an acceptance of the burdens as well as of the
benefits of the ordinance. But such an implication of acceptance
certainly could not prevail in any court against an assertion to
the contrary by the companies.
If the companies really have contract rights in the streets, as
they claim that they have, such rights cannot be impaired by the
exercise of them, and if they do not have such rights, this
declaration of the section cannot harm them, and therefore it
cannot properly serve as a basis either for jurisdiction or for an
injunction.
Thus, considering the question of jurisdiction as depending
wholly upon the form of the allegations of the bill, it seems very
clear that the federal courts are without jurisdiction in the
case.
If, now, we consider the answer in the case, we shall
Page 245 U. S. 461
find the strongest possible confirmation of the conclusion just
arrived at.
The first paragraph of the answer denies the jurisdiction of the
court and asserts that it is apparent on the face of the bill that
it seeks to prevent the City of Cincinnati from resorting to the
state courts for a decision of the controversy, and the answer to
paragraph 13 of the bill, quoted above, is a special denial. Then
follows this paragraph of the answer:
"13. The defendant denies that, under authority of said
ordinance, or otherwise, it will, unless restrained by this Court,
interfere with or prevent the maintenance and operation by the
plaintiffs, or either of them, of said electric street railway, or
cause any damage or injury of any kind to the plaintiffs' or either
of them,
and defendant avers that the enforcement of said
ordinance is only authorized and will only be sought by and through
an order of a court of competent jurisdiction first had and
obtained, and after a hearing on due and reasonable notice to all
interested parties."
It is difficult to imagine how a clearer statement than this
could be framed on the part of the city, that the enforcement of
the ordinance is only authorized and will only be sought by and
through an order of a court of competent jurisdiction.
When to all this we add that not one word of evidence was
offered on the trial tending to sustain the allegations of
paragraph 14 of the bill that the defendant threatened and intended
to interfere with and, unless enjoined, would prevent the operation
of the street railways, it becomes very clear that we have before
us an utterly unsubstantial and purely paper attempt to carry into
the federal courts a case which, because of its "many difficult
problems arising under local laws," is peculiarly one for first
decision in the state courts, with the right of revision in this
Court as provided for by law.
Page 245 U. S. 462
It has been for many years the constant effort, repeatedly
declared, of Congress and of this Court to prevent the evasion of
the Constitution and laws of the United States by bringing into the
federal courts controversies between citizens of the same state,
Bernard's Township v. Stebbins, 109 U.
S. 341,
109 U. S. 350,
and it is because of my conviction that the integrity of the
jurisdiction of the federal courts can best be preserved by
refusing to extend it to doubtful cases that this dissent is
written thus at length. My conclusion is that the plea of the
defendant to the jurisdiction of the district court should have
been sustained on the face of the bill, but that, if doubt were
entertained as to this, then, when the plaintiffs rested without
attempting to prove their allegations of intended interference by
the city with the operation of the roads, it became the duty of the
district court to proceed no further, but to dismiss the case, for
the reason that it did not really and substantially involve a
controversy properly within the jurisdiction of the court. Judicial
Code, § 37.
There remains to be added only this: that, even if agreement
were possible with the conclusion that the Court has jurisdiction
in the case, nevertheless I could not agree with the judgment
rendered, for the reason that it seems to me very clear that the
principal grant on which the plaintiffs rely, that from the county
commissioners dated March 23, 1889, expired on March 23, 1914,
before the ordinance complained of was passed. My reason for this
conclusion is that the Supreme Court of Ohio, in 1905, held the
Ohio Act of 1883 (80 Ohio Laws, 173) invalid because in violation
of § 26 of Article II of the state constitution.
Railway Co. v.
Railway Co., 5 Ohio Cir.Ct. R. (N.S.) 583,
aff'd, 73
Ohio St. 364. This is conclusive on all federal courts. If
unconstitutional in 1905, the act was unconstitutional in 1889,
when the grant by the commissioners was made, and therefore
Page 245 U. S. 463
sections 3439 and 2502 of the Revised Statutes of Ohio of 1880
were then in force, and imposed the limitation of 25 years on all
grants by county commissioners. The doctrine that rights acquired
before cannot be impaired by a change of judicial decision has no
application to this case, for the reason that there was no settled
principle of decision in Ohio in cases such as we have here, where
counties were concerned, prior to 1889, or at any other time, but,
as the decisions abundantly prove, each case as it arose was
disposed of on its own peculiar facts --
e.g., State v.
Powers, 38 Ohio St. 54 (1882), overruled in
State ex rel.
v. Shearer, 46 Ohio St. 275 (1889).
For the reasons here given and upon the authorities cited, my
conclusion is that the decree of the district court should be
reversed, and the case remanded, with instructions to dismiss the
bill for want of jurisdiction.
MR. JUSTICE BRANDEIS concurs in this dissent.