1. Jurisdiction of this Court of an appeal from the final
judgment of a state supreme court sufficiently appears where the
opinion of that court on a first appeal of the case, from an
interlocutory judgment, shows that the requisite federal question
was raised by and decided against the appellant, and where the
second and final decision of that court was made upon the authority
of the first one. P.
289 U. S.
100.
2. A city ordinance conditioned the right to drill for oil or
gas within the city limits upon the filing of a bond, in the sum of
$200,000 for each well, to secure payment of damages from injuries
to any persons or property "resulting from the drilling, operation
or maintenance of any well" or structures appurtenant thereto.
Held consistent with the due process clause of the
Fourteenth Amendment. P.
289 U.S.
101.
3. A further requirement that the bond be executed by some
bonding or indemnity company authorized to do business in the state
is also valid. P.
289 U.S.
101.
4. The wisdom and fairness of this requirement were for the city
council to decide, and its conclusion, not being clearly arbitrary
or unreasonable, binds the court. P.
289 U. S.
102.
Page 289 U. S. 99
5. A otherwise valid statute or ordinance conferring a privilege
is not rendered invalid merely because it chances that particular
persons find it hard or even impossible to comply with precedent
conditions upon which enjoyment of the privilege is made to depend.
P.
289 U. S.
102.
150 Okla. 86,
89, 160
id. 62, affirmed.
Appeal from the affirmance of a decree denying an injunction
against the enforcement of a city ordinance and granting an
injunction against its violation.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The bill of complaint alleges that plaintiffs (appellants here)
are lessees of a tract of land in Oklahoma City, Oklahoma, supposed
to contain gas and oil; that, by the terms of the lease, they are
required to commence drilling a well within a time fixed; that they
have contracted for such drilling and the work has been begun and
is now in progress; that they have a permit from the authorities of
the city as required by ordinance, but defendants threaten to and
will forcibly stop the work, to plaintiffs' irreparable damage,
unless they execute and file a bond conditioned as provided by the
city ordinance in the penal sum of $200,000, signed by some surety
company authorized to transact business within the state; that the
ordinance making such requirement is unreasonable and
unconstitutional, and, if enforced, will have the effect of
depriving plaintiffs of valuable property rights without due
process of law. An answer was filed denying generally the
allegations of the bill, and a cross-petition,
Page 289 U. S. 100
praying that plaintiffs be restrained from continuing the
drilling of the well until plaintiffs had executed the bond
required by the ordinance. After a hearing at which evidence was
introduced in support of the bill, the trial court denied
plaintiffs' prayer for an injunction and granted a permanent
injunction against them upon the cross-petition.
The bill does not, in terms, charge an infringement of the
Fourteenth Amendment or of any other provision of the federal
Constitution, and the record does not disclose whether the trial
court at any time considered or determined that question. Nor is
there anything in the present record to show, except inferentially,
that the federal question was raised by appellants or considered by
the supreme court. A basis for our jurisdiction must be found, if
at all, in the decision and opinion of the state supreme court upon
a prior appeal in the same case from a decree granting an
interlocutory injunction.
Gant v. Oklahoma City, 150 Okl.
86, 89,
6 P.2d 1065. It
there appears that an attack upon the ordinance as infringing the
due process of law clause of the Fourteenth Amendment was argued
before and considered by that court, and the ordinance sustained as
valid under that clause as well as under the due process clause of
the state constitution. An appeal to this Court followed, but was
dismissed for the want of jurisdiction, the decree not being final.
284 U.S. 594. After the remand to the state court of first
instance, final decree on the merits was rendered against
appellants. From that decree, an appeal was taken to the state
supreme court, which affirmed on the authority of its prior
decision.
15 P.2d 833. In
effect, the earlier decision was thereby read into, and made a part
of, the later one. Appellants, by this appeal, therefore have
invoked the jurisdiction of this Court at the first opportunity
open to them, and the federal question, having been considered by
the state supreme court, is properly here.
Grays
Harbor
Page 289 U. S. 101
Co. v. Coats-Fordney Co., 243 U.
S. 251,
243 U. S.
256-257;
Louisiana Navigation Co. v. Oyster
Commission, 226 U. S. 99,
226 U. S.
101-102;
Chesapeake & Ohio Ry. Co. v.
McCabe, 213 U. S. 207,
213 U. S.
214.
The ordinance, so far as pertinent, provides that no well shall
be drilled within the limits of the city until there shall be filed
with the city clerk a bond in the sum of $200,000 covering each
well, executed by "some bonding or indemnity company authorized to
do business in the State of Oklahoma," conditioned for the payment
of damages on account of injuries to property, bodily injuries,
etc., suffered by anyone and resulting from the drilling,
operation. or maintenance of any well or any structures, etc.,
appurtenant thereto.
In view of the peculiar dangers incident to the drilling and
operation of an oil or gas well within the limits of a city and of
the large interest involved if the well be successful, neither the
requirement for a bond nor the amount fixed can be declared
arbitrary or unreasonable. Indeed, the objection to the ordinance
on these grounds was but indifferently urged at the bar. The point
stressed was that the provision of the ordinance requiring the bond
to be given by a bonding or indemnity company authorized to do
business in the state, and thereby excluding the furnishing of
personal sureties, is so arbitrary and unreasonable as to
constitute a denial of due process of law. That contention also is
without merit. The most that can be said is that whether the
guaranty of a bonding or indemnity company operating under state
law and subject to state regulation is of greater worth than that
of personal sureties is a question about which opinions reasonably
may differ. But the question is one primarily addressed to the
judgment of the lawmaking body, and that body having determined
that the former is so far superior that the latter should be
excluded from eligibility altogether, there is nothing in the
due
Page 289 U. S. 102
process of law clause of the Fourteenth Amendment which requires
the courts to upset the conclusion.
"While the courts must exercise a judgment of their own, it by
no means is true that every law is void which may seem to the
judges who pass upon it excessive, unsuited to its ostensible end,
or based upon conceptions of morality with which they disagree.
Considerable latitude must be allowed for differences of view, as
well as for possible peculiar conditions which this Court can know
but imperfectly, if at all."
"
Otis v. Parker, 187 U. S. 606,
187 U. S.
608-609."
Whether the judgment of the common council of the city in the
present case was wise, or whether the requirement will produce
hardship in particular instances, are matters with which this Court
has nothing to do. It is impossible for us to say that the
provisions of the ordinance are clearly arbitrary and unreasonable.
It there be room for fair debate, this Court "will not substitute
its judgment for that of the legislative body charged with the
primary duty and responsibility of determining the question."
Zahn v. Board of Public Works, 274 U.
S. 325,
274 U. S. 328;
Standard Oil Co. v. Marysville, 279 U.
S. 582,
279 U. S.
584.
There is evidence in the record tending to show that conditions
were imposed by surety companies of an onerous character, with
which appellants were unable to comply. But it also appears that
other operators within the city limits were able to comply with all
conditions imposed, and had procured and filed bonds in accordance
with the ordinance. So far as the record discloses, appellants
stood alone in their inability to satisfy the requirements of the
bonding companies. The fact that appellants, for reasons peculiar
to themselves, could not meet the imposed requirements does not
militate against the constitutionality of the ordinance.
Packard v. Banton, 264 U. S. 140,
264 U. S. 145;
Standard Oil Co. v. Marysville, supra at p.
279 U. S. 586;
Hodge Co. v. Cincinnati, 123 Ohio St. 284, 296, 175 N.E.
196. An otherwise valid statute or
Page 289 U. S. 103
ordinance conferring a privilege is not rendered invalid merely
because it chances that particular persons find it hard or even
impossible to comply with precedent conditions upon which enjoyment
of the privilege is made to depend.
Decree affirmed.