5. The facts relating to the making of the contract which is in dispute in this case, as detailed in the opinion of the court, show that few cases are presented showing a contract entered into with more care and prudence than this, and the court is clear in its opinion that it should be sustained. Ib.
See CORPORATION, 1, 2, 3.
CASES AFFIRMED OR FOLLOWED.
Hooper v. California, 155 U. S. 648, cited, approved and applied; Orient Insurance Co. v. Daggs, 557.
See DECISIONS WITHOUT OPINIONS, pages 641 et seq.; PATENT FOR INVENTION, 3.
CASES DISTINGUISHED.
See JURISDICTION, B, 11; PUBLIC LAND, 2.
CIRCUIT COURT OF APPEALS.
1. A judgment of a Circuit or District Court of the United States for the plaintiff in an action at law under the act of March 3, 1887, c. 359, 24 Stat. 505, is reviewable by the Circuit Court of Appeals upon writ of error. United States v. Harsha, 567.
2. The provision of the act of July 31, 1894, c. 174, § 2, 28 Stat. 162, 205, that "no person who holds an office, the salary or annual compen- sation of which amounts to the sum of two thousand five hundred dollars, shall be appointed to or hold any other office to which com- pensation is attached," does not, ex proprio vigore, create a vacancy in the office of clerk of a Circuit Court of the United States, by rea- son of the fact that at the time of its taking effect the then lawful incumbent of that office is also holding the office of clerk of the United States Circuit Court of Appeals in the same circuit, having previously resigned the latter office, and his resignation not having been accepted by the judges. Ib.
See CONSTITUTIONAL LAW, A, 6 to 9, 17.
CLAIMS AGAINST THE UNITED STATES.
The appellee's testator contracted with the United States in 1863 to con- struct war vessels. Owing to changes in plan and additional work required by the Government, the time of the completion of the work
was prolonged over a year, during which prices for labor and materials greatly advanced. Full payment of the contract price was made, and also of an additional sum for changes and extra work. In 1890 Con- gress authorized the contractor's executor to bring suit in the Court of Claims for still further compensation. The act authorizing it contained this proviso: "Provided, however, That the investigation of said claim shall be made upon the following basis: The said court shall ascertain the additional cost which was necessarily incurred by the contractors for building the light-draught monitors Squando and Nauset and the side-wheel steamer Ashuelot in the completion of the same, by reason of any changes or alterations in the plans and specifi- cations required and delays in the prosecution of the work: Provided, That such additional cost in completing the same, and such changes or alterations in the plans and specifications required, and delays in the prosecution of the work, were occasioned by the Government of the United States; but no allowance for any advance in the price of labor or material shall be considered unless such advance occurred during the prolonged term for completing the work rendered neces- sary by delay resulting from the action of the Government aforesaid; and then only when such advance could not have been avoided by the exercise of ordinary prudence and diligence on the part of the contractors." Held, that the petitioner's right of recovery for advance in prices was limited to the prolonged term, and the Court of Claims could not consider advances which took place during the term named in the contract. United States v. Bliss, 321.
See CONTRACT;
LIMITATION, STATUTES OF.
See LOUISIANA, LOCAL LAW of.
A. CONSTITUTION OF THE UNITED STATES.
1. By an act of November 28, 1883, the legislature of Washington Territory incorporated the city of Walla Walla, conferring upon it, among other powers, the power to provide a sufficient supply of water for the city, and the right to permit the use of the city streets for the purpose of laying pipes for furnishing such supply for a term not exceeding twenty- five years. The act contained a further provision fixing the limit of indebtedness of the city at fifty thousand dollars. The city, under this authority, by contract granted to the Walla Walla Water Company the right to lay and maintain water mains, etc., for twenty-five years, reserv- ing to itself the right to maintain fire hydrants and to flush sewers
during this term, each without charge. The contract further provided that it was voidable by the city, so far as it required the payment of money, upon the judgment of a court of competent jurisdiction, when- ever there should be a substantial failure of such supply, or a like fail- ure on the part of the company to perform its agreements, and that, until the contract should have been so avoided, the city should not erect, or maintain, or become interested in other water works. These provisions were accepted by the Water Company, and were complied with by it, and the contract was in force when this bill was filed. In 1893 the city authorities passed an ordinance to provide for the con- struction of a system of water works to supply the city with water, and to issue bonds for that purpose to the amount of one hundred and sixty thousand dollars, which ordinance was accepted by the necessary majority of legal voters. The Water Company then filed its bill to enjoin the city from creating the proposed water works, or from ex- pending city moneys for that purpose, or from issuing city securities therefor. To this bill the city demurred, resting its demurrer upon a want of jurisdiction, all parties on both sides being citizens of the State of Washington. Held: (1) That the allegations in the bill raise a question of the constitutional power of the city to impair the obligations of its contract with the plaintiffs by adopting the ordi- nance; (2) that the grant of a right to supply water to a municipality and its inhabitants through pipes and mains laid in the streets of a city, upon condition of the performance of its service by the grantee, is the grant of a franchise vested in the State, (which may be made by municipal authorities when the right to do so is given by their charters,) in consideration of the performance of a public service, and, after performance by the grantee, is a contract, protected by the Con- stitution of the United States against state legislation to impair it; (3) that the plaintiff has no adequate and complete remedy at law, and the court has jurisdiction in equity; (4) that as the contract was limited to twenty-five years, and as no attempt was made to grant an exclusive privilege, the city acted within the strictest limitation of its charter; (5) that if the contract for the water supply was innocuous in itself, and was carried out with due regard to the good order of the city and the health of its inhabitants, the aid of the police power could not be invoked to abrogate or impair it; (6) that the stipulation that the city would not erect water works of its own during the life of the contract did not render it objectionable; (7) that the objection that the indebtedness created by the contract exceeded the amount author- ized by the charter was without merit, under the circumstances; (8) that the act of 1883, being subsequent to the general statute of 1881, authorizing cities to provide for a supply of water, was not in violation of that act; (9) that the city was bound to procure the nul- lity of the contract before the courts, before it could treat it as void. Walla Walla City v. Walla Walla Water Co., 1.
2. Under the legislation and contracts set forth in the opinion of the court in this case, the water power incidentally created by the erection and maintenance of the dam and canal for the purpose of navigation in Fox River is subject to control and appropriation by the United States, and the plaintiff in error is possessed of whatever rights to the use of this incidental water power could be granted by the United States. Green Bay & Mississippi Canal Co. v. Patten Paper Co., 58.
3. At what points in the dams and canal the water for power may be with- drawn, and the quantity which can be treated as surplus with due re- gard to navigation, must be determined by the authority which owns and controls that navigation. Ib.
4. The plaintiff's declaration, in a case pending in a nisi prius court in Virginia, set forth that he was the owner in fee of a lot of land front- ing on Eighth street between Cary and Canal streets, in Richmond, on which were located two brick buildings, the first floor of which was used for store purposes and the second story as dwellings; that said property, previous to the obstruction of Eighth street, as hereinafter described, was very profitable as an investment, being continuously rented to good tenants, who promptly paid remunerative rents for the same; that on the 25th day of June, 1886, the city council of Rich- mond, by ordinance, authorized the Richmond and Alleghany Railway Company to obstruct for the distance of sixty feet (commencing at Canal street in the direction of Cary street) Eighth street, and by vir- tue of which said railway company wholly obstructed and occupied said street for said distance with its tracks, sheds, fences, etc., except to pedestrians, for whom said company was required to provide by overhead bridge and stairway approaches thereto. It further was
averred that by means of this obstruction, so made by said company by authority of said city, travel along said street was arrested and the property rights of the petitioner, as an abutter upon said street, were not only substantially injured, but practically destroyed; that the city had no right under the Constitution and laws of the land to authorize the said railroad company to close said street or place obstructions therein without proper legal proceedings for that purpose and the mak- ing of just compensation to such abutting owners as might be injured by said action; that this unconstitutional and illegal action rendered said defendants liable to the petitioner, as trespassers on his property, for all damages that he had sustained not common to the public; that the obstructions were in themselves nuisances which the city was charged with the duty of abating and moving, and that every day's continuation of the same was a new offence. A general demurrer being entered, judgment was given for defendants. The plaintiff moved to set aside said judgment, solely on the ground that the act of the general assembly of Virginia, approved May 24, 1870, providing a charter for the city of Richmond, so far as it authorized the passage of the ordinance in the declaration mentioned, as well as said ordinance,
is unconstitutional and void, because in conflict with the Fourteenth Amendment of the Constitution of the United States, which prohibits any State from depriving any person of property without due process of law, and therefore there was no warrant of law for the closing of said street; but the court overruled said motion and refused to grant said motion and to set aside said judgment; to which action of the court the plaintiff excepted. The Supreme Court of Appeals of the State sustained that judgment, whereupon a writ of error was sued out to this court. Held, (1) That the constitutional question so raised was set up in time, and this court has jurisdiction; (2) that the judg- ment of the state court was right, and should be affirmed. Meyer v. Richmond, 82.
5. On the 29th of May, 1862, the plaintiff below (plaintiff in error here) filed a bill in the Circuit Court of the city of Norfolk, Virginia, to es- tablish the genuineness of certain coupons tendered by him in pay- ment of taxes, and obtained a judgment there in his favor. When the suit was commenced, the highest court of Virginia had often decided against the right to require the State to accept such coupons in pay- ment of taxes. This court, on the other hand, in a series of decisions reaching from 1880 to 1889, had been uniform and positive in favor of the validity of the act authorizing the issue of such bonds, and of the liability of the State to accept the coupons in payment of taxes. In the present case the Supreme Court of Appeals of Virginia dismissed the plaintiff's petition, on appeal, and awarded costs to the Common- wealth, on the ground that the coupon provision of the act of 1871 was void. In the previous cases there had been no direct decision by the state court that such provision was entirely void, although the intima- tion was clear that such was the opinion of the judges then composing the court. It was contended by the State that this court has no juris- diction of this case, for the reason that the state Court of Appeals does not consider, in its opinion, the subsequent legislation of the State, passed with a view to impair the act of 1871, but limits itself to the consideration of that act, which it adjudges to be void, and also that the repeal of the act of 1882, after the judgment in the trial court be- low, amounts to a withdrawal of the consent of the State to be sued, and is fatal to the maintenance of this action. Held: (1) That the lawful owner of such coupons has the right to tender the same after maturity in payment of taxes, debts and demands due the State; (2) that this court has the right to inquire and judge for itself with re- gard to the making of the alleged contract with the holder of the coupons without regard to the views or decisions of the state court in relation thereto; (3) that the owner's right to pay taxes in coupons is not affected by the consideration that some taxes, other than the ones now in question, were, when the act of 1871 was passed, required to be paid in money; (4) that while it is true that the state court placed its decision on the ground that the act of 1871 was void, in so
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