court of Marion county by the state, upon | 682; Smith v. Broderick, 187 Cal. 644, 40 against the auditor of Marion county, for a Mr. Cassius C. Hadley argued the Plaintiff in error has no right to prosecute his writ of error in this court, since he does not show that he has any just cause for complaint. The petition was based upon an act passed by the general assembly March 4, 1899, the Cooley, Const. Lim. 6th ed. p. 196; Clark first section of which declares: "That any v. Kansas City, 176 U. S. 114, 44 L. ed. person being the owner of real estate liable 392, 20 Sup. Ct. Rep. 284; Red River Valley for taxation within the state of Indiana, Nat. Bank v. Craig, 181 U. S. 548, 45 L. ed. and being indebted in any sum, secured by 994, 21 Sup. Ct. Rep. 703; Texas & P. R. mortgage upon real estate, may have the Co. v. Johnson, 151 U. S. 81, 38 L. ed. 81, 14 amount of such mortgage indebtedness, not Sup. Ct. Rep. 250; Ludeling v. Chaffe, 143 exceeding $700, existing and unpaid upon U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. [139]the first day of *April of any year, deducted | 439; Jones v. Black, 48 Ala. 540; Giles v. from the assessed valuation of mortgage premises for that year, and the amount of such valuation remaining after such deduction shall have been made shall form the basis for assessment and taxation for said real estate for said year." [Horner's Anno. Stat. (Ind.) § 6272a.] An alternative writ having been issued, defendant interposed a general demurrer, which was sustained by the court, and the relators declining to plead further, judgment was entered against them. Upon appeal to the supreme court, the action of the court below was reversed, the law held to be constitutional, and the cause re manded. 158 Ind. 543, 63 N. E. 25, 214, 64 relators demurred. The demurrer was sus tained, and a judgment entered for a per- from this court. Mr. Horace E. Smith argued the cause, and, with Mr. Roscoe O. Hawkins, filed a brief for plaintiff in error: The plaintiff in error has such an interest in the cause of action that he not only may, but must, prosecute the action. Denman v. Broderick, 111 Cal. 97, 43 Pac. 516; Norman v. Kentucky Bd. of Managers of World's Columbian Exposition, 93 Ky. 537, 18 L. R. A. 556, 20 S. W. 901; Von Schmidt v. Widber, 105 Cal. 151, 38 Pac. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. Ct. Rep. 623; Re Wellington, 16 Pick. 87, 26 Am. Dec. 631; Gustavel v. State, 153 Ind. 613, 54 N. E. 123; Kansas City v. Union P. R. Co. 59 Kan. 427, 52 L. R. A. 321, 53 Pac. 468. Mr. Justice Brown delivered the opinion of the court: The constitutionality of the exemption law of Indiana was apparently the only question raised by the parties. It was argued elaborately, both in the circuit and supreme court of the state, and was finally affirmed by a majority of the latter court. The power of the county auditor, who is charged by law with the duty of making the assessment, to refuse to allow the relators their exemption upon the ground of the unconstitutionality of the act, does not appear to have been raised in the state courts, and is not noticed in either opinion of the supreme court. In fact, the celerity of the proceedings and the admissions of counsel indicate that the suit was begun and carried tionality of the law, and that the litigation on for the purpose of testing the constituwas, at least, not an unfriendly one. We have no doubt of the power of state courts to assume jurisdiction of the case if they chose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that, in his opinion, it is repugnant to the Constitution. It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event, it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U. S. 97, 101, 30 L. ed. 588, 7 Sup. Ct. Rep. | from the judgment on the merits (American 469. Different considerations, however, apply to the jurisdiction of this court, which we have recently held can only be invoked by a party having a personal interest in the litigation. It follows that he cannot sue out a writ of error in behalf of third persons. Tyler v. Registration Court Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206; Clark v. Kansas City, 176 U. S. 114, 44 L. ed. 392, 20 Sup. Ct. Rep. 284; Turpin v. Lemon, 187 U. S. 51, 47 L. ed. 70, 23 Sup. Ct. Rep. 20; Lampases v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368; Ludeling v. Chaffe, 143 U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. 439; Giles v. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. [149]Ct. Rep. 623. These authorities *control the present case. It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their nonperformance was equally so. He neither gained nor lost anything by invoking the advice of the supreme court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers, and in this particular the case is analogous Ins. Co. v. Gibson, 104 Ind. 336, 342, 3 N. The fact that the various statutes fixing For the reasons above given the appellant did not have the requisite interest to maintain this appeal, and it is therefore dismissed. Mr. Justice Harlan and Mr. Justice White are of opinion that the plaintiff in error was entitled to prosecute the present writ, and that the court should determine the case upon its merits. CITY OF JOPLIN, Appt., บ. to that of Caffrey v. Oklahoma, 177 U. S. SOUTHWEST MISSOURI LIGHT COM 346, 44 L. ed. 799, 20 Sup. Ct. Rep. 664. We think the interest of an appellant in this court should be a personal, and not an offieial, interest, and that the defendant, having sought the advice of the courts of his own state in his official capacity, should be content to abide by their decision. PANY. (See S. C. Reporter's ed. 150-158.) Electric lighting—implied contract of city An implied contract that the city will not, for It is true there seems to have been a per- [No. 32.] ber 16, 1903. PPEAL from the Circuit Court of the terest, of which there appears to be consid- A United States for the Western District erable doubt (Travis v. Waters, 12 Johns. of Missouri to review a decree enjoining a Statement by Mr. Justice McKenna: The city of Joplin is a municipality of the state of Missouri; the appellee is a corpora- | municipal taxation, and that appellee is tion of said state, and the jurisdiction of compelled, by reason of such taxation, "to the circuit court was invoked on the ground aid and assist in operating and maintaining that the action of the city impaired the obli- defendant's (the city's) electric plant and gation of the contract existing between it business as a rival and competing one" with and the appellee, in violation of the Consti- appellee's electrical plant and business. tution of the United States, and hence the appcal directly to this court. A preliminary injunction was granted. 101 Fed. 23. It was made perpetual upon final hearing, and a decree was entered enjoining the city "from supplying or furnishing to the inhabitants, residents, or any other person, firm, or corporation within said city, or any addition thereto or extension thereof, electric lights, either incandescent or arc, or in any other form or manner, for commercial or private lighting, for and during the full term" of the grant to the predecessors and assignors of appellee, to wit, the term of twenty years from and after October 7, 1891. 113 Fed. 817. A statute of Missouri (Laws 1891, p. 60) authorizes cities to erect, maintain, and operate electric light works, to light the streets, and supply the inhabitants with light for their own use, and to establish rates therefor. Or they may, the statute provides, "grant the right to any person or persons or corporation to erect such works upon such terms as may be prescribed by ordinance, provided further that such right shall not extend for a longer period than twenty years." Subsequently to, and in pursuance of, this statute, the city, by ordinance, October 7, 1891, 152] granted the right to erect and maintain an electric light plant to certain persons, naming them, their successors and assigns, for a period of twenty years. The plant was erected at considerable expense, and has ever since been maintained and operated. The appellee is the successor of the original grantees. The ordinance conferred rights and exacted obligations, and fixed, besides, the rates to be charged. It also provided for its written acceptance within ten days after its passage, and the commencement of the work within sixty days. It was accepted. Subsequently (March, 1899), the city, acting in pursuance of, and in the manner provided in, certain ordinances, issued bonds to the amount of $30,000, "for the purpose of erecting an electric light plant, to be owned, controlled, and operated by the city," and by the means obtained thereby constructed electrical works, erected poles and wires, established a schedule of rates, and entered into the business of commercial electrical lighting in competition with appellee. The bill alleged that the appellee was the owner of real and personal property within the city, which is assessed by the city for Mr. C. H. Montgomery argued the cause, and, with Mr. Samuel W. Moore, filed a brief for appellant: As the city of Joplin did not expressly grant an exclusive franchise, or expressly disable itself from erecting and maintaining an electric light plant, no such restrictions will be created by implication. Bienville Water Supply Co. v. Mobile, 95 Fed. 539; Skaneateles Waterworks Co. v. Skaneateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400; Freeport Water Co. v. Freeport City, 180 U. S. 587, 45 L. ed. 679, 21 Sup. Ct. Rep. 493; Pearsall v. Great Northern R. Co. 161 U. S. 664, 40 L. ed. 844, 16 Sup. Ct. Rep. 705; St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 45 L. ed. 788, 21 Sup. Ct. Rep. 575; Stein v. Bienville Water Supply Co. 141 U. S. 67, 35 L. ed. 622, 11 Sup. Ct. Rep. 892; Charles River Bridge v. Warren Bridge, 11 Pet. 536, 9 L ed. 819; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Thompson Houston Electric Co. v. Newton, 42 Fed. 723; Levis v. Newton, 75 Fed. 884; Re Brooklyn, 143 N. Y. 596, 26 L. R. A. 270, 38 N. E. 983; Austin v. Bartholomew, 46 C. C. A. 327, 107 Fed. 349; Newburyport Water Co. v. Newburyport, 103 Fed. 587. The power of the city of Joplin to erect and operate its own electric light plant, and the power to grant to some person or corporation a franchise therefor, are concurrent powers. Skaneateles Waterworks Co. v. Skaneateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400. Mr. John A. Eaton argued the cause, and, with Mr. J. McD. Trimble, filed a brief for appellee: The express provisions of the statute and contract shall be first considered, and then what is necessarily implied from such express provisions. This is the only rule for finding the true and entire contract. Detroit Citizens' Street R. Co. v. Detroit R. Co. 171 U. S. 48, 43 L. ed. 67, 18 Sup. Ct. Rep. 732; Los Angeles v. Los Angeles City Water Co. 177 U. S. 558, 44 L. ed. 886, 20 Sup. Ct. Rep. 736; Dill. Mun. Corp. 4th ed. ¶ 451-459. The law implies duties and obligations in a contract from those which are expressed, and the implied duties and obligations are as much a part of the contract as those expressed. Mr. Justice McKenna, after stating the case, delivered the opinion of the court: Union Depot Co. v. Chicago, K. & N. R. | Los Angeles City Water Co. 177 U. S. 558, Co. 113 Mo. 213, 20 S. W. 792; Bishop, 44 L. ed. 886, 20 Sup. Ct. Rep. 736. Contr. 241; 2 Parsons, Contr. 6th ed. p. 514; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; United States v. Babbit, 1 Black, 55, 17 L. ed. 94; Whincup v. Hughes, L. R. 6 C. P. 78; Donahoe v. Kettell, 1 Cliff. 144, Fed. Cas. No. 3,980. Implication is but another term for mean ing an intention, apparent in the light of judicial inspection. The foundation of the suit is that the ordinances of March, 1899, and the acts and conduct of the city in entering into competition with the complainant (appellee) impair the obligation of the contract impliedly arising from the ordinance of October 7, 1891, and the acceptance thereof by appellee. In Rhode Island v. Massachusetts, 12 Pet. other words, it is contended that under the 723, 9 L. ed. 1260. The purpose of the contract was not to govern the inhabitants of the city, but to obtain a private benefit for the city itself and its denizens. Illinois Trust & Sav. Bank v. Arkansas City, 34 L. R. A. 518, 22 C. C. A. 171, 40 U. S. App. 257, 76 Fed. 271. statute of the state, which we have quoted, The corporation is estopped from assert- derived therefrom." And it is hence con- The obligation of a contract is the law which binds the parties to perform their agreement; any impairment of the obligation of a contract the degree of impair-tution of the United States, which provides ment is immaterial is within the prohibiEion of the Constitution. Walker v. Whitehead, 16 Wall. 314, 21 L. ed. 357. that no state shall pass any law impairing Courts may acquaint themselves with the described. Guarantee Co. v. Mechanics' Sav. Bank & T. Co. 26 C. C. A. 146, 47 U. S. App. 91, 80 Fed. 766; Goddard v. Foster, 17 Wall. 123, 21 L. ed. 589. The following cases fully support the right to an injunction in this suit: It is by implication from the statute and the ordinance passed under it, not from the explicit expression of either, that the confrom erecting its own lighting plant, and clusion is deduced that the city is precluded yet it is conceded that the grant to the ap pellee is not exclusive. That is, it is conceded the city has not exhausted its power under the statute by the grant held by appellee, but may make another to some other person than the appellee. In other words, that the city may make a competitor to ap pellee, but cannot itself become such competitor. The strength of the argument urged Walla Walla Water Co. v. Walla Walla, 60 to support the distinction is in the considerFed. 957; Walla Walla v. Walla Walla Wa-ation that competition by the city would be ter Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Westerly Waterworks v. Westerly, 75 Fed. 181; White v. Meadville, 177 Pa. 643, 34 L. R. A. 567, 35 Atl. 695. A legislative act which impairs the obligation of an existing contract is void as violative of the contract clause of the Consti tution. New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 29 L. ed. 525, 6 Sup. Ct. Rep. 273; St. Tammany Waterworks Co. v. New Orleans Waterworks Co. 120 U. S. 64, 30 L. ed. 563, 7 Sup. Ct. Rep. 405; Los Angeles v. more effective than competition by private [157]which might give it (the appellee) *a practical monopoly. Others may not seek to compete with it, and if the city cannot. the city is left with a useless potentiality, while the appellee exercises and enjoys a practically exclusive right. There are presumptions, we repeat, against the granting of exclusive rights, and against limitations upon the powers of government. Many cases illustrate this principle, and some of them were decided in response to contentions similar to those made in the case at bar. In Skaneateles Waterworks Co. v. Skaneateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400, the village of Skaneateles, under statutes of the state of New York, granted to the water company the right to construct waterworks, and contracted with it to supply water to the village and its inhabitants for the period of five years. At the expiration of the term of the contract some difference arose about the terms of its continuance, and the village constructed an independent system of waterworks. A suit was brought by the water company to restrain the further construction of the works and their operation, and the company contended that under the statute of the state by which the village granted to the company its franchises, the village had the election to construct works, or confer such power upon a private company like the water company, and having elected the latter, it impliedly contracted not to construct works of its own. In reply to this contention this court said, by Mr. Justice Peckham: lage impliedly contracted not to construct works of its own. The similarity of the contention with that in the case at bar is apparent. In Bienville Water Supply Co. v. Mobile, 175 U. S. 109, 44 L. ed. 92, 20 Sup. Ct. Rep. 40, 186 U. S. 212, 46 L. ed. 1132, 22 Sup. Ct. Rep. 820, it was again decided that the granting of franchises to private persons to construct waterworks in a city does not preclude the city from afterwards erecting such works, and supplying its inhabitants with water. Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77, is not in opposition to these views. The city of Walla Walla was, by the statute incorporating it, empowered to erect waterworks or to authorize the erection of the same. In pursuance of this power it granted a franchise to the Walla Walla company, and contracted to take water from the company, reserving the right to avoid the contract under certain contingencies. But it was provided that: "Until such contract shall have been so avoided, the city of Walla Walla shall not erect, maintain, or become interested in any waterworks except the ones herein referred to, save as hereinafter specified." The contract was in force at the time the suit was brought, and the water company had substantially complied with all of its terms and conditions. The contract passed upon, therefore, was expressed and explicit. The power to make it was sustained. In the case at bar, restraint upon the power of the appellant city is claimed to be implied by the grant to the appellee. We think, for the reasons stated and upon the authorities cited, such restraint cannot be implied. "There is no implied contract in an ordinary grant of a franchise, such as this, that the grantor will never do any act by which the value of the franchise granted may in the future be reduced. Such a contract would be altogether too far-reaching and important in its possible consequences in the way of limitation of the powers of a municipality, even in matters not immediately *ST. LOUIS HAY & GRAIN COMPANY,[159] connected with water, to be left to implication. We think none such arises from the facts detailed." It is true there was an element in that case which is not in the case at bar. The village of Skaneateles had entered into a contract with the water company to take 158] water from the *company. This contract had expired before the city constructed its works. It was not that contract, however, which was alleged to have been impaired, but that which the water company claimed to have been implied by reason of its organization and incorporation, and in pursuance of the application made to, and with the consent of, the village authorities. The ultimate reliance, therefore, of the water company was that from the grant to it the vil Decree reversed and case remanded with directions to dismiss the bill. Appt., |