72 F. 873 | 8th Cir. | 1896
Lead Opinion
(after stating the case as above), delivered the opinion of the court.
The defendant challenged the jurisdiction of the circuit court at every stage of the case, and that is the only question we find it neces: sary to consider. The jurisdiction is attempted to be maintained upon the ground that the case is one arising under the constitution of the United States. But clearly this is not so. The complaint shows the suit to be one to recover for water furnished by the plaintiff to the city under the contract set out in the complaint. In a word, it is a suit to recover for the breach of an alleged contract to pay for water. It does not differ in any respect from a suit to recover for water supplied to a private consumer. It is in no wise different from a suit brought by one individual or private corporation against another indi
■TS.v üie settled law of this court, as appears from the decisions above cited, a, suggestion of one party that the other will or may set up a claim under the constitution or laws of the United ¡States does not make the suit one arising under that constitution or those laws.”
And it is equally well settled that the suggestion in a complaint in an action at law that the defendant may or will set up a defense based on a state statute repugnant to the constitution does not make the suit one arising under the constitution.
The averments of the complaint, beyond those which state a cause of action upon the contract in suit, are mere surplusage. When the statement of the plaintiff’s cause of action, in legal and logical form, such as is required by the rules of good pleading, does not disclose
“When a suit does not really and substantially involve a dispute or controversy as to the effect or construction of the constitution upon the determination of which the result depends, then it is not a suit arising under- the constitution. Shreveport v. Cole, 129 U. S. 36, 9 Sup. Ct. 210; Starin v. City of New York, 115 U. S. 248, 257, 6 Sup. Ct. 28; Water Co. v. Keyes, 96 U. S. 199. The judicial power extends to all eases in law and equity arising under the constitution, hut these are cases actually, and not potentially, arising, and jurisdiction cannot be assumed on mere hypothesis. In this‘class of cases it is necessary to the exercise of original jurisdiction by the circuit court that the cause of action should depend upon the construction and application of the constitution, and it is readily seen that eases in that predicament must be rare. Ordinarily the question of the repugnancy of a state statute to the impairment clause of the constitution is to be passed upon by the state courts in the first instance, the presumption being in all cases that they will do what the constitution and laws of the United States require. Chicago & A. R. Co. v. Wiggins Ferry Co., 108 U. S. 18, 1 Sup. Ct. 614, 617. And if there be ground for complaint of their decision, the remedy is by writ of error under section 709 of the Revised Statutes. Congress gave its construction to that part of the constitution by the twenty-fifth section of the judiciary act of 1789, and lias adhered to it in subsequent legislation.”
This case, with its citations, demonstrates that the views we have expressed upon this question have the sanction of that court.
The demurrer to the complaint for want of jurisdiction should have been sustained. If no demurrer had been interposed, the court, on its own motion, should have dismissed the cause for want of jurisdiction appearing on the face of the complaint. Even if the averments of the complaint had brought the case within the jurisdiction of the court, the suit should have been dismissed when it appeared upon the trial, as it clearly did, that the suit did not arise under the constitution, and that no federal question was involved, but only the question whether the city had authority, under the laws, of Minnesota, to enter into the contract in suit. Bank of Arapahoe v. David Bradley & Co. (decided at present term) 72 Fed. 867. If the city had power under those laws to enter into the contract, its liability was not disputed. If there was no contract, there was no obligation to be impaired. If there was a valid contract, its obligation was not questioned. The judgment of the circuit court is reversed, and the cause remanded, with instructions to dismiss the suit, for want of jurisdiction, at the costs of the plaintiff.
Dissenting Opinion
(dissenting). The decision and opinion of the majority of the court in this case rests upon this prop’osition:
“When tbe statement of the plaintiff’s cause of action, in legal and logical form, such as is required by the rules of good pleading, does not disclose that the suit is one arising under the constitution or laws of the United States, then the suit is not one arising under that constitution or those laws, and the circuit court-has no jurisdiction.”
In other words, the majority hold that no one can invoke the jurisdiction of the circuit court of the United States, in a case arising under
“That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under*878 the constitution or laws of the United States, or treaties made, or which shall he made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in which the matter in disirate exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same state' claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid.” 1 Supp. Rev. St. 611.
It goes without saying that, in many of the cases of which the circuit court is given jurisdiction by these acts of congress, the allegations which invoke and sustain the jurisdiction of the circuit court are not indispensable to the statement in legal and logical form of a good cause of action. To that end they are generally mere surplus-age. Their sole purpose and only effect are to give the circuit court jurisdiction of the suit. Take the case of a controversy between citizens of different states. The plaintiff can state a good cause of action, if he has one, without alleging the citizenship of the parties. That allegation is unnecessary to the statement of a cause of action, and yet the plaintiff may make it, and, if the amount in controversy is sufficient, he may thereby invoke and maintain the jurisdiction of the circuit court. Take the case of ejectment, in which the plaintiff and defendant claim lands under grants of different states. Allegations of "the sources of their titles are mere surplusage to the statement of a good cause of action in ejectment, but the plaintiff may undoubtedly plead the grants under which the parties to the action claim, and may, by the force of those allegations, maintain his action in the circuit court. Take the case of a controversy between a citizen of a state and a foreign citizen or subject. An allegation of the diverse citizenship of the parties is rarely, if ever, indispensable to the statement in legal and logical form of a good cause of action; but the plaintiff may allege the citizenship of the parties, and, if the amount in dispute is sufficient, may thereby invoke and sustain the jurisdiction of the circuit court. I can conceive of no good reason why the same rule should not apply to a suit arising under the constitution of the United States; why a plaintiff, in such a case, should not be permitted to set forth his cause of action, and then to invoke and sustain the jurisdiction of the circuit court by allegations not indispensable to the statement of his cause of action, but which show that the suit has arisen under the constitution of the United States. This view is not novel. It is not without support in the adjudicated cases. In White v. Greenhow, 114 U. S. 307, 5 Sup. Ct. 923, 902, the facts were that the state of Virginia had in 1871 made a contract with the plaintiff that the coupons cut from bonds issued under “An act to provide for the funding and payment of the public debt,” passed by its legislature on March 30, 1871, should be receivable in payment of taxes thereafter levied upon property in that state. In 1882 certain taxes were levied upon the property of the plaintiff. He tendered the coupons cut from these bonds in payment of these taxes, but the defendant refused to accept them, and levied upon and carried away personal property of his of the value of $3,000, in order to sell it to satisfy these taxes. The plaintiff sued the defendant for $6,000 dam
“The present action, as shown on the lace of the declaration, was a case arising under tlie constitution of the United States, and was one, therefore, of which tlie circuit court of the United States had rightful jurisdiction, by virtue of the act of March 3, 1875, without regard to the citizenship of the parties, the sum or value in controversy being in excess of $500.”
In Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, the facts and the complaint, so far as the question here under consideration is concerned, were the same as in White v. Greenhow, supra. The action was for damages for the unlawful seizure of property to satisfy taxes after they had been paid by the tender of coupons under the act recited above. The jurisdictional allegations were unnecessary to the statement of a cause of action for damages, and their only effect was to give the circuit court jurisdiction. The defendant interposed a plea to the jurisdiction of the circuit court, “that, as the plaintiff and defendant were both citizens of the state of Virginia, the courts of that state had exclusive jurisdiction of the alleged cause of action”; but the supreme court overruled the plea, reversed the judgment dismissing the action, and remanded the case to the circuit court, with directions to try it. In Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, the facts were that the New Orleans Waterworks Company had prior to 187!) a contract with the city of New Orleans for the exclusive privilege of laying conduits, mains, and pipes in the streets of that city, to supply the city and its inhabitants with water, and under that'contract it had laid its mains and pipes, and was proceeding in its performance. In 1882, and during the term of this contract, the city council of New Orleans granted to one Rivers the privilege of laying pipes in its streets to supply the St. Charles Hotel, in that city, with water, and he was about to do so. Tlie waterworks company exhibited its bill in the circuit court of the United States to perpetually enjoin, Rivers from laying these pipes, or supplying that
I have carefully read the authorities cited in the opinion of the majority, and I am unable to find- anything in them in conflict with this proposition. In Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, the plaintiff did not: aver that it was protected by, or claim for its cause of action the protection of, the constitution of the United States. That was a suit by the state of Tennessee to collect its taxes. The allegation relied upon to give the circuit court jurisdiction was that the defendant claimed that the law under which the tax was levied violated the constitution. It: is w'ell settled that, the plaintiff cannot make a case arising under the constitution of the United Slates by pleading that the defendant will shelter himself under its protection. The defendant may not do so. The option to interpose or refuse to interpose the shield of the constitution is his. It is only when the plaintiff himself claims immunity from state legislation under this clause of the constitution that he presents a case arising under it. Such is the case at bar, and such are the cases to which I have referred. In New Orleans v. Benjamin, 158 17. S. 411, 414, 14 Sup. Ct. 905, the complainant, Benjamin, brought k bill against the city of New Orleans and others for an accounting of the liabilities of the board of Metropolitan police, and of the amounts due to that board from the various defendants in the suit, for the appointment of a receiver, to collect the amounts due, and for the application of the amounts so collected to the payment of the debts of the board, in eluding certain warrants held lay the complainant. The complainant alleged in the bill that a certain act of the legislature of Louisiana, which repealed prior acts of that legislature, and which abolished the board of metropolitan police, was in violation of section 10, art. 1, of the constitution. This allegation of the claimed immunity from the effect of this act was unnecessary to the statement of the cause of action. Nevertheless, the supreme court, after some general remarks, assumed that the repugnancy of the act of the legislature to the constitution might be so set up as to form an independent ground of jurisdiction in the circuit court, and proceeded to decide that the act pleaded did not impair the obligation of any contract, and that, therefore, the suit did not really and substantially involve a dispute or controversy as to the effect or construction of the constitution of the United States, upon the determination of which the result depended. 153 U. S. 414, 431, 14 Sup. Ct. 905. Shreveport v. Cole, 129 U. S. 36, 39, 9 Sup. Ct. 210, was disposed of in the same way. It was an action to recover a balance due on a contract for grading and improving streets. The plaintiff’ alleged in his complaint that an act of the legislature which limited the amount of the municipal taxes impaired the obligation of his contract. The supreme court considered at length the question whether or not that act did impair the obligation of the contract; decided that it did not, because it was prospective, and could not have any effect upon the claims of antecedent contract creditors, and that for that reason the case did not arise un
But it is said that although the complaint averred that the city of Fergus Falls made this contract, that it complied with its terms and paid the water rent under it for years, that it'then passed an ordinance that the contract was null and void and was thereby canceled, and that from that daté it refused to pay any rent under the contract, and that this ordinance was a law impairing the obligation of the contract, yet that, inasmuch as the only defense to the action pleaded by the. answer and relied upon at the trial was that there never was any contract, because the city was without power to make it, the circuit court had no jurisdiction, and should have dismissed the action, because the answer presented no controversy as to the validity of the ordinance by which the attempt was made to rescind and cancel the contract. When a defendant that has made, recognized, and performed a contract for years,, passes or procures the passage of a law which by its terms annuls and cancels it, and from that time refuses to perform the contract, the natural, reasonable,- and logical inference is that the defendant relies on the law it has passed, or procured the passage of, to relieve it from its contract, and the plaintiff is well warranted by these facts in invoking the jurisdiction of the federal court on the ground that it is protected frorá the effect of that law by the constitution of the United States. Upon this subject this
“If, on tlie face of tlio complaint or declaration, tlie case is one which the court lias the power to hear and determine, because of the existence of a federal question, it has the right to decide every issue that may subsequently be raised; and whether the decision of the case ultimately turns on a question of federal, local, or general law is a matter that in no wise affects tlie jurisdiction of the court. Mayor v. Cooper, 6 Wall. 247; Railroad Co. v. Mississippi, 102 U. S. 335, 111; Tennessee v. Davis, 100 U. S. 257, 201; Omaha Horse-Ry. Co. v. Cable Tramway Co., 32 Fed. 727.” St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R. Co., 15 C. C. A. 107, 68 Fed 10.
Tested by the facts ns they existed when this complaint was filed, by the making and partial performance of the contract by this city, by the passage by it of an ordinance which' by its terms annulled and canceled the contract, and by its refusal to perform the contract from the date of this ordinance, the claim of the plaintiff iliat his recovery might depend upon the question whether or not that ordinance was repugnant to the constitution of the United States certainly rested on a reasonable foundation. It was undoubtedly made in good faith. There is no indication that it was merely colorable. It was the natural and logical inference from ¡he facts which the complaint discloses. It goes without saying-ilia (: there was an aspect that the case might assume in which the right of recovery would depend upon the construction of the constitution of the United States. If the contract was valid in its inception, and such a construction of the constitution should be adopted that the subsequent ordinance would not be held to be repugnant to it, this construction would be fatal to the plaintiff's recovery, while the opposite construction would insure it. In this way an immunity from the effect of state legislation on which the recovery dejiended would be defeated by one construction, and sustained by the other construction, of the constitution; and the case was one arising thereunder, under the definition given in Starin v. City of New York, 115 U. S. 248, 257, 6 Sup. Ct. 28, and the cases cited. In such a case as this the defendant cannot evade or avoid the jurisdiction of the federal court by a plea that there never was any contract, and that consequently its obligation could not be impaired by the ordinance the defendant itself has enacted to animl and cancel it. As was well said in St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R. Co., 15 C. C. A. 167, 68 Fed. 9, 10:
“Wlion a complaint filed in the circuit court of the United States discloses a controversy arising under federal laws, the jurisdiction of the court will not be defeated by any defense or plea that tlie defendant may see fit to make.*884 If the plaintiff’s right-to sue in the national courts is to be tested solely by his complaint or declaration, and is not aided by any plea interposed by the defendant, no matter how clearly the latter may show that the construction or application of federal laws is involved, then it follows that, if jurisdiction is fairly disclosed by the plaintiff’s statement of his own cause of action, it cannot be defeated by an answer or plea so conceived and drawn as to avoid the consideration of any federal question or questions.”
It is no new device for a defendant wbo has passed or procured the passage of a law which by its terms impairs the obligation of a contract to seek to evade the jurisdiction of the national courts by the plea that there never was any contract; hence, that the law did not impair its obligation, and no federal question can arise in the case. This device was resorted to in Wright v. Nagle, 101 U. S. 791, but it failed in that case, and it ought not to succeed in this. In that case the state of Georgia had made a contract with the assignor of the complainants, through the inferior court of Floyd county, that he and his assigns should have the exclusive right of opening and maintaining ferries and building bridges over the Eto-wah river, within certain limits. Subsequently that state, through its commissioners of roads and revenue, granted to the defendants the right to erect and maintain a toll bridge within the limits of the first grant. The complainants brought a suit in equity in one of the state courts of Georgia to enjoin the defendants from constructing their bridge, and alleged that the subsequent grant impaired the obligation of the original contract. Defendants an-' swered that the inferior court of Floyd county had no authority to make the original contract, and, as there was no contract, there was no impairment of its obligation. The trial court so held, and dismissed the bill on that ground. This decision and judgment were affirmed by the supreme court of Georgia on appeal. A writ of error was then issued from the supreme court to review this judgment, and a motion to dismiss on the ground that the only question involved was whether or not there was a contract, and no federal question was presented, was made, and overruled by that court with this remark:
“If the court erred in construing the statute, and in holding that there was no contract, then the question is directly presented, by the pleadings and the stipulation as to the facts, whether the subsequent action of the commissioners of roads and revenue is, in its legal effect, equivalent to a law of the state impairing the obligation of the contract as it was made. In this way, it seems to us, a federal question is raised upon the record, which gives us jurisdiction.”
In the case at bar the court below has found that there was a contract, and has rendered judgment for the rent which accrued under it; so that the question whether or not the plaintiff was protected, by section 10, art. 1, of the constitution, from the subsequent ordinance which in terms annulled the contract, became a vital question in the case, and, whether insisted upon or urged by the defendant or not, was necessarily decided by the court against the validity of the ordinance, in reaching its judgment. The case actually- assumed the aspect in which the plaintiff’s recovery depended upon the construction of this clause of the constitution,
