gress in adopting it was to follow the plan applied from the beginning to the organized Territories by creating a government conforming to the American system with defined and divided powers, legislative, executive and judicial, in further view of the fact that the exercise of the judicial power here claimed would be destructive of that system, we are of opinion that it cannot be supposed that Congress intended by the clause in question to destroy the government which it was its purpose to create. In a sense the words "to sue and be sued," applied, as they normally have been, in grants of private or public charters, are redundant, since they but express the existence of powers which would naturally be implied. It may be true also to say that if they be likewise confined in the case before us they will also be in a sense redundant. Despite this, we think they should be construed with reference to the powers conferred by the provisions to which they relate, and therefore cannot be treated as destructive of the authority otherwise conferred by the act. Thus interpreting the clause, it is but an expression of the power to sue arising from the terms of the Organic Act and a recognition of a liability to be sued consistently with the nature and character of the government, that is, only in case of consent duly given. The words, "shall have the governmental powers hereinafter conferred and with the power to sue," etc., exclude the possibility in reason of holding that the right to sue and be sued which was given "and with," that is, because of or along with the powers conferred-was intended to or does distort or limit the powers of government which the act conferred.

Reversed.

227 U.S.

Counsel for Appellant.

HOME TELEPHONE AND TELEGRAPH COMPANY v. CITY OF LOS ANGELES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA.

No. 610. Submitted October 28, 1912.-Decided February 24, 1913. One, whose rights protected by a provision of the Federal Constitution which is identical with a provision of the state constitution are invaded by state officers claiming to act under a state statute,is not debarred from seeking relief in the Federal court under the Federal Constitution until after the state court has declared that the acts were authorized by the statute.

The provisions of the Fourteenth Amendment are generic in terms and are addressed not only to the States but to every person, whether natural or judicial, who is the repository of state power. The reach of the Fourteenth Amendment is coextensive with any exercise by a State of power in whatever form exerted. Under the Fourteenth Amendment the Federal judicial power can redress the wrong done by a state officer misusing the authority of the State with which he is clothed; under such circumstances inquiry whether the State has authorized the wrong is irrelevant. Ex parte Young, 209 U. S. 123, followed. Barney v. New York, 193 U. S. 430, distinguished.

Acts done under the authority of a municipal ordinance passed in virtue of power conferred by the State are embraced by the Fourteenth Amendment.

The power which exists to enforce the guarantees of the Fourteenth Amendment is typified by the immediate and efficient Federal right to enforce the contract clause of the Constitution as against those violating or attempting to violate its provision.

THE facts, which involve the jurisdiction of the District. Court of a suit arising under the due process clause of the Fourteenth Amendment and the validity of an ordinance of Los Angeles, California, establishing telephone rates, are stated in the opinion.

Mr. James A. Gibson for appellant.

227 U. S.

Argument for Appellees.

Mr. John W. Shenk and Mr. George E. Cryer for appellees:

The Fourteenth Amendment is directed against action by the States themselves and the State of California has taken no action.

The city of Los Angeles is an agent of the State of California with limited powers, which do not include authority to pass or enforce a confiscatory rate ordinance.

Action by the city of Los Angeles in the exercise of a state agency, but not within the limits of its authority from the State, is not state action. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326; Louisville v. Telephone Co., 155 Fed. Rep. 725.

An unauthorized act of a state agent is not, under the authorities, state action, within the meaning of the Fourteenth Amendment to the Constitution of the United States. Huntington v. New York, 118 Fed. Rep. 683; aff'd 193 U. S. 440; Civil Rights Cases, 109 U. S. 3; Barney v. New York, 193 U. S. 430; Missouri v. Dockery,. 191 U. S. 165; Virginia v. Rives, 100 U. S. 313; Louisville v. Telephone Co., 155 Fed. Rep. 725; San Francisco v. United Railroads, 190 Fed. Rep. 507; Memphis v. Telephone Co., 218 U. S. 624; Hamilton Gas Co. v. Hamilton, 146 U. S. 258; United States v. Peralto, 99 Fed. Rep. 624; Farley v. Kitson, 120 U. S. 314.

The result of this suit does not depend upon the effect or construction of the Fourteenth Amendment: hence the suit is not one arising under the Constitution or laws of the United States. Memphis v. Telephone Co., 218 U. S. 624; West. Un. Tel. Co. v. Ann Arbor R. R. Co., 178 U. S. 239; San Francisco v. United Railroads, 190 Fed. Rep. 507; Seattle Elec. Co. v. Seattle &c. R. Co., 185 Fed. Rep. 365.

Appellant's arguments considered, defendant is not estopped to question jurisdiction.

That a suitor has his choice of forum is not denied.

The guaranty of due process contained in the constitution of California has not been impaired by judicial construction. Seattle Elec. Co. v. Seattle &c. R. Co., 185 Fed. Rep. 365.

The conclusion does not follow that the adoption of defendant's contention herein would mean the destruction of Federal jurisdiction to enforce the guaranties of the Fourteenth Amendment. Raymond v. Chicago Union Traction Co., 207 U. S. 20.

The penal provisions of the ordinance do not operate to deny to appellant the equal protection of the law, nor does that phase of the case present an independent ground for Federal jurisdiction. Ex parte Young, 209 U. S. 123.

Appellant's authorities do not support its contention that action by a city, in violation of the state constitution, is state action. Dobbins v. Los Angeles, 195 U. S. 223; Yick Wo v. Hopkins, 118 U. S. 356; Ex parte Virginia, 100 U. S. 339; Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U, S. 370; Scott v. McNeal, 154 U. S. 34; Chicago &c. R. Co. v. Chicago, 166 U. S. 226; Raymond v. Chicago Union Traction Co., 207 U. S. 20; Memphis v. Telephone Co., 218 U. S. 624; San Francisco v. Union Railroads, 190 Fed. Rep. 507; Seattle Elec. Co. v. Seattle &c. R. Co., 185 Fed. Rep. 365; Louisville v. Telephone Co., 155 Fed. Rep. 725.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

The appellant, a California corporation furnishing telephone service in the city of Los Angeles, sued the city and certain of its officials to prevent the putting into effect of a city ordinance establishing telephone rates for the year commencing July 1, 1911.

It was alleged that by the constitution and laws of the

State the city was given a right to fix telephone rates and had passed the assailed ordinance in the exercise of the general authority thus conferred. It was charged that the rates fixed were so unreasonably low that their enforcement would bring about the confiscation of the property of the corporation, and hence the ordinance was repugnant to the due process clause of the Fourteenth Amendment. The averments as to the confiscatory character of the rates were as ample as they could possibly have been made. The charge of confiscation was supported by statements as to the value of the property, and the sum which might reasonably be expected from the business upon the application of the rates assailed. The confiscatory character of the rates, it was moreover alleged, had been demonstrated by the putting into effect during the previous year of rates of the same amount as those assailed which it was charged the corporation at great sacrifice had after protest submitted to in order to afford a practical illustration of the confiscation which would result.

Being of the opinion that no jurisdiction was disclosed by the bill, the court refused to grant a restraining order or allow a preliminary injunction, and thereafter, on the filing of a formal plea to the jurisdiction, the bill was dismissed for want of power as a Federal court to consider it. This direct appeal was then taken.

The plea to the jurisdiction was as follows:

that this Court ought not to take jurisdiction of this suit for that the said suit does not really or substantially involve a dispute or controversy properly within the jurisdiction of this Court, for as much as the Constitution of the State of California, in Article 1, section 13 thereof, provides that 'No person shall be

deprived of life, liberty, or property without due process of law'; that this complainant, a citizen of the State of California, has never invoked the aid or protection of its said State to prevent the alleged taking of its prop