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(273 F.) means of a libel either in personam or in rem, under the provisions of the second section of the act mentioned.

In this case the libelants have expressly elected that the suit shall proceed as if it were a proceeding in rem. At the same time, by section 3 of the act, it is provided that an election so to proceed shall not preclude the libelants in any proper case from seeking relief in personam in the same suit. If Middleton & Co. have any interest under the libel, then, as they reside and have their principal place of business in the Eastern district of South Carolina, the libel is well filed in that district, and it may be that that should be determined by the claim of the libelant, notwithstanding the ultimate decision may be against such claim.

Assuming, however, that the Japanese corporation is the party alone interested, then, inasmuch as it neither resides nor has any principal place of business in any district in the United States, it would be impossible for it to sue, under the construction placed upon the act by the counsel for the government, in any district in the United States, save one in which the vessels might be found. If no vessel can be found within the United States, then no matter how meritorious the claim of the alien may be, whether in rem or in personam, it would be impossible for him to sue.

This would not appear to be in accordance with the intention of the statute. Under the principles to be deduced from preceding decisions of the federal courts in analogous cases, it would appear that, where the provision of the act is that the suit must be brought in the district of the residence of one of the parties, then in the case of an alien defendant such restriction does not apply, as that would mean that, unless the alien sued should be found capable of service in the district of the residence of the citizen desiring to sue him, he could not be sued at all. The principle would seem to be that an alien may be considered for the purposes of jurisdiction, if he enters the United States, or is brought into it, for the purposes of suit, to reside in any district.

If this is a proceeding in personam, brought on behalf of the Japanese corporation alone, an alien corporation, under the principles of these decisions it would appear that it could sue in any district in the Unlied States.

Again, the language of the act is that the suit shall be brought in the District Court for the district in which the parties so suing, or any of them, reside. If Middleton & Co. are authorized to sue on behalf of the Japanese corporation, it would seem that they are the parties suing, although they may be suing on behalf of the Japanese corporation.

The motion to dismiss for want of jurisdiction is accordingly refused, but without prejudice to the defendant to renew it at the trial upon the testimony submitted to the court.

At the same time, leave is hereby given to the libelants, if they see fit, within five (5) days from the date of this order, to amend their libel so as by proper allegations to make it a proceeding in personam as well as in rem, serving within the time limited a copy of the libel in full as amended upon the United States Attorney for this district.

SILVEY et al. v. COMMISSIONERS OF MONTGOMERY COUNTY,

OHIO, et al.

(District Court, S. D. Ohio, W. D. June 1, 1921.)

No. 29.

1. Navigable waters om 26 (36)-One not injured in a manner different from

the general public cannot complain of construction of dam without authority of Congress or Secretary of War.

Though storage dams constructed over the Great Miami river under the Ohio Conservancy Law were not authorized by act of Congress or Secretary of War, the United States only or some individual injured differently from the general public in degree and kind, can complain that the erection was in violation of Act March 3, 1899, Š 10 (Comp. St. $

9910), on theory the river was navigable. 2. Constitutional law E233, 290(1)-Conservancy Law held not to deprive

taxpayer of property without due process, or deny equal protection,

The Conservancy Law of Ohio does not, as to a taxpayer of the city of Dayton, work a deprivation of property without due process of law, or

deny equal protection of the law. 3. Constitutional law Omanl—Ohio Conservancy Law, providing for organiza

tion and membership of common pleas court in district including more than one county, not an unlawful delegation of legislative power.

The Ohio Conservancy Law, by providing for the organization and membership of the common pleas court in a district embracing territory within more than one county, and conferring jurisdiction and authority on such court to establish conservancy districts, is not invalid under the state and federal Constitutions as unlawfully delegating legislative power

to such court. 4. Courts E366 (30)–Propriety of authorizing local court to frame conserv.

ancy district is state question.

The propriety of delegating authority to a local court to frame a con

servancy district is a state question, 5. Constitutional law w 127—Conservancy Law, intended to prevent floods,

not a violation of home rule charter.

Though the city of Dayton, in 1913, prior to the passage of the Conservancy Law, and pursuant to Const. Ohio, art. 18, § 7, adopted a home rule charter, the powers conferred upon the city in view of section 3, article 18, are not only purely local and municipal, but are purely governmental, and the charter is not a contract which would render the subsequently enacted Conservancy Law, designed to prevent floods in that

district, invalid as violating the contract. 6. Municipal corporations 79—By granting home rule charter, state does

not deprive itself of the right to exercise its police power.

In view of Const, Ohio, art. 18, 8 3, the state does not, as to municipalities adopting, pursuant to section 7, a home rule charter, lose its right to exercise police and sanitary regulations; section 3 merely allowing the municipality to enforce local, police, and sanitary regulations not in con

flict with the general law. 7. Statutes Cw3534-An emergency act is not subject to referendum.

The Ohio Conservancy Law, declared to be an emergency act, necessary for the immediate preservation of public health and safety, by protecting cities, villages, farms, and highways from inundation, is not subject to the referendum authorized by Const. Ohio, art. 2, § 1e, or the charter of the city of Dayton or Const. art. 2, § 1d, recognizing the necessity of exempting emergency acts from referendum.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(273 F.) 8. Constitutional law On 254, 290 (1)-Provisions of Ohio Conservancy Law

for appointment of officers or assessment are not invalid under Fourteenth Amendment.

Const. U. S. Amend. 14, does not deprive the state of Ohio of the power of determining whether officers of the conservancy district shall be appointed or elected by the people, or prescribing the duties to be performed, nor does such amendment invalidate a tax levy, or an assessment law

fully made by such officers for a duly authorized improvement. 9. Courts On284—Suit for injunction, based on federal question decided by

previous decisions, will be dismissed.

Following the familiar practice of the Supreme Court, for the purpose of discouraging frivolous appeals and writs of error dependent on the existence of a federal question, to dismiss the same without consideration of the merits, if the question has been explicitly foreclosed by previous decisions, so as to leave no room for controversy, a suit for injunc

tion involving only frivolous federal questions will be dismissed. 10. Courts On 262 (4)-Where it was doubtful whether officers of district

were state officials, application for teniporary injunction, under Judicial Code, 8 266, will merely be dismissed.

It being doubtful whether officers of an Ohio conservancy district were state officials, in such a sense as to justify a hearing or an application for temporary injunction, pursuant to Judicial Code, $ 266, the federal District Court as constituted under such section, consisting of at least one Circuit and two District Judges, will merely deny an application for temporary injunction, and though complainant appeared entitled to no relief, will leave the question of the denial of the bill for determination

of the judge of the district. In Equity. Suit by William L. Silvey and others. against the Commissioners of Montgomery County, Ohio, and others. On application for temporary injunction. Denied.

Alexander R. Hawthorne, of Troy, Ohio, for plaintiffs.

John A. McMahon and O. B. Brown, both of Dayton, Ohio, for defendants.

Before DENISON, Circuit Judge, and SATER and PECK, District Judges.

PER CURIAM. The plaintiff, a taxpayer of the city of Dayton, Ohio, and a citizen of Ohio, for himself and others similarly situated, assails the constitutionality of the Conservancy Law of Ohio, entitled:

"An act to prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts.” 104 0. L. 13.

The city of Dayton, Ohio, certain of its officers, the Miami Conservancy District, and several railroad corporations are made defendants. A hearing on the plaintiff's application for a temporary injunction has been had in accordance with the requirements of section 266 of the Judicial Code (Comp. St. $ 1243).

[1] The claim is vaguely made that the construction of storage dams by the Miami Conservancy District across the Great Miami river and its tributaries and the Miami and Erie Canal has not been affirmatively authorized by Congress, that no plans were submitted to or recommended by the Chief of Engineers or authorized by the Secretary

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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of War for the building of such dams, and that therefore their erection is in violation of section 10 of the Act of March 3, 1899, 30 Stat. 1151 (section 9910, Comp. Stat.). In Koehne v. City of Dayton, 97 Ohio St. 341, 119 N. E. 651, it was held that the Great Miami river is not a navigable stream at any of the points at which dams are in process of erection, and that neither such dams nor the public works incident to future protection against floods in any wise impede or impair navigation; but, aside from the conclusion thus reached by the state court, the fact still remains, if the plaintiff's contention be true, that the only party entitled to complain of the action taken is the United States, unless the plaintiff is individually injured differently from the general public in degree and kind. Mayor of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 98, 9 L. Ed. 1012; Carver v. San Pedro, L. A. & S. L. R. Co. (C. C.) 151 Fed. 334. The plaintiff has not brought himself within the prescribed exception.

The act in question is charged to be obnoxious in 6 different respects to the Constitution of the United States and to some 37 provisions of the Constitution of Ohio. Most of the objections urged are unimportant and even frivolous. Only those will be considered which are deemed worthy of notice.

[2] The bill charges that the act deprives the plaintiff and other similarly situated property owners of their property without due process of law and denies them the equal protection of the law. The fallacy of this claim has been conclusively settled by Miami County v. Dayton, 92 Ohio St. 215, 110 N. E. 726, Orr v. Allen (D. C.) 245 Fed. 486 (a three-judge case), and Orr v. Allen, 248 U. S. 35, 39 Sup. Ct. 23, 63 L. Ed. 109. See, also, O'Neill v. Leamer, 239 U. S. at page 253, 36 Sup. Ct. 54, 60 L. Ed. 249.

[3, 4] The averment is made that the Conservancy Act, by providing for the organization and membership of the common pleas court in a district embracing territory within more than one county, and by conferring jurisdiction and authority on such court to establish conservancy districts, delegates legislative power to such court, and thereby violates both the state and the federal Constitution. This contention was decided adversely to plaintiff in Snyder v. Deeds, 91 Ohio St. 407, 110 N. E. 1068, and Miami County v. Dayton, 92 Ohio St. 215, 234, 235, 110 N. E. 726. Drainage or conservancy districts may, like school districts, be established by legislative sanction. The power conferred on the court of common pleas is not unlike that delegated to township trustees, county commissioners, and other bodies, authorizing them to organize districts for the construction of public improvements and for taxing or assessing the lands benefited thereby. Such enactments have almost uniformly been held to be a delegation of legislative power, not prohibited by the organic law. The propriety of delegating authority to a local court to frame a conservancy district is, in any event, a state question. O'Neill v. Leamer, 239 U. S. at pages 247, 248, 253, 36 Sup. Ct. 54, 60 L. Ed. 249.

[5] On August 12, 1913, prior to the passage of the Conservancy Law, the city of Dayton, by virtue of section 7, art. 18, of the state

(273 F.) : Constitution, providing for home rule by municipalities, adopted a charter securing to itself local self-government. The plaintiff claims that by the adoption of such charter the city and the state of Ohio became bound in contract, whereby there were vested in the city's officers all matters of local improvements and taxation, and that legislative enactments involving the exercise of the police power, and seeking to guard the public health, safety, convenience, and welfare, are without application to such municipality. It is averred that the officials charged with the execution of the provisions of the Conservancy Act are appropriating property of and within the city and availing themselves of funds realized by the taxation of such property, and in so conducting themselves are impairing the obligations of the contract existing between the city and the state, and consequently violating both the state and the federal Constitutions. If the officials of the conservancy district are abusing the power conferred on them by statute, that fact cannot be considered as action of the state forbidden by the federal Constitution. It is also clear that the home rule provisions of the Ohio Constitution authorize and the adoption of the Dayton charter thereunder constitutes governmental and not contractual action. Section 3 of article 18 provides that

“Municipalities shall have authority to exercise all powers of local selfgovernment and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws."

The powers conferred upon chartered cities by the provisions of sections 3 and 7, art. 18, are not only purely local and purely municipal, but purely governmental. State v. Cooper, 97 Ohio St. 86, 91, 119 N. E. 253; State v. French, 96 Ohio St. 172, 184, 117 N. E. 173, Ann. Cas. 1918C, 896; State v. Lynch, 88 Ohio St. 71, 102 N. E. 670, 48 L. R. A. (N. S.) 720, Ann. Cas. 1914D, 949. These cases cannot be reconciled with the theory of a contractual relation between the city and the state. Prior to the decision of Miami County v. Dayton, the Supreme Court not only knew that the city of Dayton had adopted a charter in pursuance of the home rule provisions of the Constitution, but had considered certain

features of such charter. State v. Edwards, 90 Ohio St. 305, 107 N. E. 768. In the Dayton Case the court found no inconsistency in the coexistence and contemporaneous operation of the Conservancy Act and the home rule method of government that may have been adopted by any municipality within the bounds of the conservancy district, and expressly held, in 92 Ohio St. at page 236, 110 N. E. 732, that the home rule doctrine in no wise applies to the creation of drainage or conservancy districts where the power to be exercised is peculiarly a state, sovereign, police power.

[6] The state could not bargain with or deprive itself of the right properly to exercise its police power, nor could the city of Dayton bind itself by a contract which is or might become injurious to the peace, order, health, or welfare of its people. Telephone Co. v. Cleveland, 98 Ohio St. 358, 365, 121 N. E. 701; Stone v. Mississippi, 101 U. S. 814, 819, 25 L. Ed. 1079. The general laws referred to in sec

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