right of such keepers of hotels and public | Argued October 20, 1903. Decided Novemhouses, carriers of passengers, and keepers of places of amusement, and their employees, to control the access and admission or exclusion of persons to or from public houses, means of transportation, and places of amusement, shall be as perfect and complete as that of any private person over his private house, carriage, or private theatre or places of amusements for his family." (Shannon's Code, § 3046.)

CITY OF JOPLIN, Appt.,
SOUTHWEST MISSOURI LIGHT COM- such right

•155

ten acceptance within ten days after its passage, and the commencement of the work within sixty days. It was accepted.

Subsequently (March, 1899), the city, ing 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 municipal taxation, and that appellee is compelled, by reason of such taxation, "to aid and assist in operating and maintaining defendant's (the city's) electric plant and business as a rival and competing one" with appellee's electrical plant and business.

clusion is deduced that the city is precluded from erecting its own lighting plant, and yet it is conceded that the grant to the apact-pellee is not exclusive. That is, it is conceded the city has not exhausted its power under the statute by the grant held by ap pellee, but may make another to some other person than the appellee. In other words, that the city may make a competitor to appellee, but cannot itself become such competitor. The strength of the argument urged to support the distinction is in the consideration that competition by the city would be more effective than competition by private persons or corporations-indeed, might be destructive. The city, it is further urged, could be indifferent to profits, and could tax its competitor to compensate losses. But this is speculation and it may be opposed by speculation, and there are, besides, countervailing considerations. The limitation contended for is upon a governmental agency, and restraints upon that must not be readily implied. The appellee concedes, as we have seen, that it has no exclusive right, and yet contends for a limitation upon the city 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 practi cally exclusive right. There are presumptions, we repeat, against the granting of exclusive rights, and against limitations upon the powers of government.

Messrs. C. H. Montgomery and Samuel W. Moore for appellant.

Messrs. John A. Eaton and J. McD. Trimble for appellee.

*Mr. Justice McKenna, after stating the case, delivered the opinion of the court: 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 other words, it is contended that under the statute of the state, which we have quoted, the city was given the power to construct an electrical plant and erect poles, etc., to "supply private lights for the use of the inhabitants of the city," or it could grant that right "to any person or persons or corporation" upon such terms as might be prescribed by ordinance. It chose the latter, and granted to the assignors of appellee the right given by the statute, and expressed it to be "in consideration of the benefits to be derived therefrom." And it is hence contended that thereby the city contracted not to build works of its own, and that by doing so it violated § 10 of article 1 of the Constitution of the United States, which provides that no state shall pass any law impairing the obligation of a contract, and also violated that clause of the 14th Amendment of that instrument, which provides that no state shall deprive any person of property without due process of law.

It is by implication from the statute and the ordinance passed under it, not from the explicit expression of either, that the con

Many cases illustrate this principle, and some of them were decided in response to contentions similar to those made in the case at bar. 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 stat ute 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:

In Skaneateles Waterworks

"There is no implied contract in an ordi

891.

Decree reversed and case remanded with directions to dismiss the bill.

nary grant of a franchise, such as this, that, We think, for the reasons stated and upon the grantor will never do any act by which the authorities cited, such restraint cannot the value of the franchise granted may in be implied. 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 connected with water, to be left to implica- D. N. HOLDEN and Lizzie Holden, Banktion. 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 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 village 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

rupts, Appts.,

v.

(191 U. S. 115)

J. A. STRATTON, Trustee.

Appeal in bankruptcy proceedings not proper mode of reviewing decisions of circuit courts of appeal on original petition. Certiorari, and not appeal, 18 the proper

method of obtaining a review in the Supreme Court of the United States of a decision of the circuit court of appeals, made in the exercise of its jurisdiction, under the act of July 1, 1898 (30 Stat. at L. 544, chap. 541 [U. S. Comp. Stat. 1901, p. 3418]), § 24b, to review, by original petition, proceed. ings of inferior courts of bankruptcy, which revised an order of the district court allowing an exemption, since the revising order of the circuit court of appeals is not "a final decision allowing or rejecting a claim" within the meaning of § 25b, providing for ap peals in bankruptcy proceedings to the Su preme Court of the United States.

[No. 38.]

granting of franchises to private persons to Submitted October 22, 1903. Decided No

construct waterworks in a city does not preclude the city from afterwards erecting such

works, and supplying its inhabitants with A

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.

vember 16, 1903.

PPEAL from the United States Circuit Court of Appeals for the Ninth Circuit to review a decision which revised an order of the District Court for the District of Washington, allowing an exemption in bankruptcy proceedings. Dismissed.

See same case below, 51 C. C. A. 97, 113 Fed. 141.

Statement by Mr. Chief Justice Fuller: Two separate proceedings were commenced in the district court of the United States for the district of Washington, on January 19, 1901, against D. N. Holden and Lizzie Holden, to the end that each be adjudicated a bankrupt, which were consolidated, and on the ensuing 25th of February they were, respectively, so adjudicated. The creditors of each of the bankrupts were the same.

Thereupon J. A. Stratton was duly elected trustee in bankruptcy of the estate of each of the bankrupts, and qualified as such. The bankrupts, and each of them, applied for exemption in their favor of two certain policies of life insurance in the hands of the trustee. D. N. Holden was insured, and Lizzie Holden was the beneficiary, in both,

with the provision that if she should not survive him, payment should be made to his executors, administrators, and assigns.

The exemption was disallowed by the referee, who reported his action to the court. The bankrupts filed exceptions to the report, and the court on July 16, 1901, set it aside and adjudged the policies to be exempt. Stratton then filed a petition in the circuit court of appeals for the ninth circuit for a revision of this order. It was therein alleged among other things that the policies had a present cash surrender value combined of about $2,200. The circuit court of appeals, accepting the ruling of that court in the previous case of Re Scheld, 52 L. R. A. 188, 44 C. C. A. 233, 104 Fed, 870, held that the policies were not exempt, and decreed a revision of the order of the district court accordingly. 51 C. C. A. 97, 113 Fed. 141. From this decree an appeal was prayed to this court, and allowed February 12, 1902, and the record was filed here April 14, 1902. And subsequently a certificate of a justice of this court was filed herein that in his opinion the determination of the questions involved was essential to a uniform construction of the bankruptcy act throughout the United States.

The appeal was submitted on a motion to dismiss, and also on the merits.

Messrs. George Turner, P. P. Carroll, and John E. Carroll for appellants.

Mr. Frederick Bausman for appellee.

sion contemplated being substantially the same as in the prior act, and the provision for appeals not embracing appeals from decrees in revision.

Section 25a provides "that appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals of the United States, and to the supreme court of the territories, in the following cases, to wit, (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of $500 or over.'

And § 256 for appeals to this court "from any final decision of a court of appeals, allowing or rejecting a claim under this act," where the amount in controversy exceeds the sum of $2,000, and the question involved was one which might have been taken from the highest court of a state to the Supreme Court of the United States; or where some justice of the Supreme Court certifies that "in his opinion, the determination of the question or questions involved in the allow ance or rejection of such claim is essential to a uniform construction of this acto throughout the United States."

This case was not taken to the court of* appeals by appeal, as in equity cases, to be re-examined on the facts as well as the law, nor could it have been, for it was not one of the cases enumerated in § 25a. The order of the district court was not "a judgment allowing or rejecting a debt or claim of $500

Mr. Chief Justice Fuller delivered the or over," or the revising order of the circuit opinion of the court:

court of appeals, "a final decision, allowing It will be perceived that the jurisdiction or rejecting a claim," within the intent and of the circuit court of appeals was invoked meaning of either subdivision a or b. By on an original petition under §*246 of the § 2, sub. 2, courts of bankruptcy are vested bankruptcy law, which provides: "The sev- with the power to "allow claims, disallow eral circuit courts of appeal shall have ju- claims, reconsider allowed or disallowed risdiction in equity, either interlocutory or claims, and allow or disallow them against final, to superintend and revise in matter of bankrupt estates;" and § 57 comprehensivelaw the proceedings of the several inferiorly covers the subject of the proof and allow. courts of bankruptcy within their jurisdic-ance of claims, treating them as moneyed tion. Such power shall be exercised on due notice and petition by any party aggrieved." [30 Stat. at L. 553, chap. 541, U. S. Comp. Stat. 1901, p. 3432.]

demands.

And while the word "claim" is used in its signification of the demand or assertion of a right in sub. 11 of § 2, in respect of "all claims of bankrupts to their exemptions," it is also used in many parts of the act, and, as we think, in § 25, as referring to debts (which by sub-sect. 11 of § 1 include "any debt, demand, or claim provable in bankruptcy") presented for proof against estates in bankruptcy. Hutchinson v. Otis, 190 U. S. 552, 555, 47 L. ed. 1179, 1180, 23 Sup. Ct. Rep. 778; Re Whitener, 44 C. C. A. 434, 105 Fed. 180; Re Columbia Real Estate Co. 50 C. C. A. 406, 112 Fed. 645.

This supervisory jurisdiction in matter of law was conferred on the circuit courts by the act of March 2, 1867 (14 Stat. at L. 518, chap. 176, § 2; Rev. Stat. § 4986), and it was settled under that act that appeals to this court did not lie from the decisions of the circuit courts in the exercise of that jurisdiction. Morgan v. Thornhill, 11 Wall. 65, 20 L. ed. 60; Conro v. Crane, 94 U. S. 441, 24 L. ed. 145. The ruling is decisive here unless the present act elsewhere otherwise provides. But this it does not do, the The allowance or rejection of a debt or special and summary character of the revi- 'claim is a part of the bankruptcy proceed

1.

2.

ST. LOUIS HAY & GRAIN COMPANY, at the rate of one sixtieth daily, as required

Contracts right to maintain a quantum contract rates. The claimant seeks compen.