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not only upon diversity of citizenship, but upon the alleged unconstitutionality of certain municipal ordinances as impairing the obligation of a contract with the municipality under prior ordinances.

had been complied with, the matter was duly considered, and finally resulted, November 29, in a vote to grant a permit to erect and maintain the gas works.

Dobbins's contractors began at once to lay That upon the 22d day of November Mrs. the foundation for said works at a cost of upwards of $2,500, when, on November 25, the city adopted an ordinance, amending that of August 26, 1901, including her properection or maintenance of gas works (which ordinance, however, seems to have proved defective), and subsequently, in February, 1902, caused certain of the employees of the gas and fuel company to be arrested, charging them with a violation of this ordinance. Subsequently, under new proceedings, certain employees of the plaintiff were arrested and the work stopped.

2. The absence of an adequate remedy at law cannot be urged by a subcontractor who has contracted to erect gas works on certain premises, as a ground for injunctive relief to prevent the enforcement, by criminal proceedings against his employees, of municipal ordinances prohibiting the erection or main-erty in the prohibited territory for the tenance of such structures within certain limits, which are alleged to infringe the obligation of the contract of the owner of the land with the municipality under prior ordinances, since his remedy, if any, is by action against the principal contractor, who is presumed to be able to respond in damages for all such which the subcontractor may have suffered by the interruption of the contract.

[No. 507.]

Submitted January 12, 1903. Decided
March 2, 1903.

APPEAL from the Circuit Court of

O the United States for the Southern Dis trict of California to review a decree which dismissed a bill to enjoin the enforcement of certain municipal ordinances alleged to impair the obligation of a contract with the municipality under prior ordinances. Affirmed.

See same case below on motion for preliminary injunction, 115 Fed. 537.

Statement by Mr. Justice Brown: This was a bill in equity filed in the circuit court for the southern district of California by appellant, a citizen of Massachusetts, to restrain the city of Los Angeles and its officers from enforcing certain municipal ordinances prohibiting the erection or maintenance of gas tanks or reservoirs within certain portions of the city.

The gravamen of the bill was that on September 1, 1901, Caroline W. Dobbins made a contract with the Valley Gas & Fuel Company, a California corporation, to build certain gas works for her, including all things necessary for the manufacture, recovery, and storage of gas, on lands thereafter to be designated; that on September 17 the appellant made a contract with the gas and fuel company to erect upon Mrs. Dobbins's premises a water tank and gas holder having a capacity of 100,000 cubic feet of gas, and that immediately thereafter it constructed and prepared the material and machinery necessary for the erection of the tank and gas holder, and shipped the same to Los Angeles; that on September 28 Mrs. Dobbins purchased certain lands in Los Angeles, which were within the limits wherein it was lawful to erect gas works as described in a municipal ordinance adopted August 26, 1901, and on November 1 applied to the board of fire commissioners for a permit to erect such gas works; that on November 22 her petition came on for hearing before the fire commissioners, and after proof had been made that all provisions of prior ordinances

Another ordinance was passed on March 3, 1902, also amending that of August 26, 1901, and other arrests were made of the employees for a violation of this ordinance. It was averred that the gas works are in an uncompleted condition, exposed to the elements and in danger of being destroyed, and

that all of the aforesaid ordinances were adopted by the common council at the instigation of the Los Angeles Light Company, which has enjoyed a monopoly of the gas business for the last ten years.

A demurrer was filed to this bill by the city for want of equity and of jurisdiction, which was sustained by the court, and the bill dismissed (115 Fed. 537), apparently upon the ground that a court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there. Whereupon an appeal was taken to this court.

Messrs. Lynn Helm, Henry T. Helm, Edward C. Bailey, Henry T. Lee, and J. R. Scott for appellant.

Messrs. Albert H. Crutcher, W. B. Mathews, Le Compte Davis, and J. R. Rush for appellee.

Mr. Justice Brown delivered the opinion of the court:

As the bill in this case is based, not only upon diversity of citizenship, but upon the alleged unconstitutionality of the municipal ordinances of November 25, 1901, and March 3, 1902, as impairing the obligation of Mrs. Dobbins's contract with the city under prior ordinances, an appeal lies directly to this court, and upon such appeal the whole case is opened for consideration. Horner v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522; Chappell v. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397. The state having delegated certain powers to the city, the ordinances of the municipal authorities in this particular are the acts of the state through one of its properly constituted instrumentalities, and their unconstitutionality is the unconstitutionality of a state law within the meaning of § 5 of the circuit

court of appeals act. [26 Stat. at L. 827, | the exception above noted, wherein, in a few chap. 517, U. S. Comp. Stat. 1901, p. 549]. cases, an injunction has been allowed to isCity R. Co. v. Citizens' Street R. Co. 166 U. sue to restrain an invasion of rights of S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; property by the enforcement of an unconsti Penn Mut. L. Ins. Co. v. Austin, 168 U. S. tutional law, where such enforcement would 685, 694, 42 L. ed. 626, 630, 18 Sup. Ct. result in irreparable damages to the plainRep. 223; St. Paul Gaslight Co. v. St. Paul, tiff. It cites in that regard the case of 181 U. S. 142, 148, 45 L. ed. 788, 791, 21 Reagan v. Farmers' Loan & T. Co. 154 U. Sup. Ct. Rep. 575. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 2. The court below did not pass upon the 560, 14 Sup. Ct. Rep. 1047, in which, under validity of these ordinances, but came to the a law of Texas giving express authority to conclusion that a bill in equity would not a railroad company or other party in interlie to restrain their enforcement, and in this est to bring suit against the railroad comaspect we shall discuss the case. As the missioners of that state, a bill was susonly method employed for the enforcement tained against such commission to restrain of these ordinances was by criminal pro- the enforcement of unreasonable and unjust ceedings, it follows that the prayer of the rates, and in the opinion a few instances bill to enjoin the city from enforcing these were cited where bills were sustained ordinances, or prevent plaintiff from carry-against officers of the state, who, under ing out its work, must be construed as de- color of an unconstitutional statute, were manding the discontinuance of such crimi- committing acts of wrong and injury to the nal proceedings as were already pending, rights and property of the plaintiff acquired and inhibiting the institution of others of under a contract with the state. It would seem that, if there were jurisdiction in a court of equity to enjoin the invasion of property rights through the instrumentality of an unconstitutional law, that jurisdiction would not be ousted by the fact that the state had chosen to assert its power to enforce such law by indictment or other criminal proceeding. Springhead Spinning Co. v. Riley, L. R. 6 Eq. 558.

a similar character.

That a court of equity has no general power to enjoin or stay criminal proceed ings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there, or to prohibit the invasion of the rights of property by the enforcement of an unconstitutional law, was so fully considered and settled in an elaborate opinion by Mr. Justice Gray, in Re Sawyer, 124 U. S. 200, 31 L. ed. 402, Sup. Ct. Rep. 482, that no further reference to prior authorities is deemed necessary, and we have little more to do than to consider whether there is anything exceptional in the case under consideration to take it out of the general rule. The plaintiff in the case of Sawyer sought to restrain the mayor and committee of a city in Nebraska from removing a city officer under charges filed against him for malfeasance in office. This was held to fall within the general rule, and not within the excep-nated by Mrs. Dobbins, a water tank and e tion.

In order to determine the exact property rights at stake in the case under consideration, it should be borne in mind that this is not a bill by Mrs. Dobbins, the owner of the land and of the proposed gas works, to enjoin the city from interfering with carrying out the permit she had obtained to erect these gas works, nor by the Valley Gas & Fuel Company, with which she had made a contract to erect these works but by a subcontractor which had made a contract with the gas and fuel company to erect for it, and upon premises to be desig

gas holder; and, without even alleging that* The general rule that a circuit court of the gas and fuel company had refused to the United States sitting as a court of carry out its contract, or pay to plaintiff equity cannot stay by injunction proceed- damages, or that Mrs. Dobbins had refused ings pending in a state court to enforce the to settle any claim the gas and fuel comcriminal laws of such state was applied in pany might have against her, seeks to enjoin Harkrader v. Wadley, 172 U. S. 148, 43 L. the city of Los Angeles in the assumed right ed. 399, 19 Sup. Ct. Rep. 119, to a case of Mrs. Dobbins from interfering with its where the plaintiff sought to enjoin pro- servants and employees, and from preventceedings against him for the embezzlement ing plaintiff from carrying out the work of of the assets of a bank; and in Fitts v. Mc-erecting the water tank and gas holder, and Ghee, 172 U. S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269, to a suit brought by the receiver of a railroad against the attorney general of the state to restrain him from instituting or prosecuting criminal proceedings to enforce against the plaintiff the provisions of a state law reducing the tolls which had been exacted of the public by the railroad, of which the plaintiff was receiver. This was held to be in reality a suit against the state to enjoin the institution of criminal proceedings, and hence within the general rule. See also Prout v. Starr, 187 U. S. —, ante, 398, 23 Sup. Ct. Rep. 398.

Plaintiff seeks to maintain its bill under

also to desist and refrain from enforcing its ordinances. It sets up no contract of its own with the city which the municipal ordinances have impaired, but a contract of the city with Mrs. Dobbins, to which it was no party, in which it had no direct interest, and that, too, without averring that the gas and fuel company was insolvent, or unable to respond to its claim for damages. It proceeds wholly upon the assumption that the revocation of Mrs. Dobbins's license will operate injuriously to it, and that it cannot obtain a full and adequate remedy at law by an action against the gas and fuel company upon its contract to pay the price agreed upon between them.

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It is true the bill is based upon the the- 123 Sup. Ct. Rep. 20; Wellington, Petitioner, ory that plaintiff would suffer great and ir- 16 Pick. 87, 96, 26 Am. Dec. 631; Sinclair reparable loss by the interference of the city v. Jackson, 8 Cow. 543; Jones v. Black, 48 and by the exposed condition of the works, Ala. 540; Shehane v. Bailey, 110 Ala. 308, and that the refusal of an injunction would 20 So. 359; Dejarnett v. Haynes, 23 Miss. result in innumerable actions at law and a 600. multiplicity of suits, which would have to In this connection, also, the appellant be instituted at great expense and without cites the case of Reagan v. Farmers' Loan the possibility of recovering indemnity. & T. Co. 154 U. S. 362, 393, 38 L. ed. 1014, We are not, however, bound by this allega- 1022, 4 Inters. Com. Rep. 560, 14 Sup. Ct. tion, when the facts set forth in the bill Rep. 1047, in which we held that the trustee show that, if the plaintiff be entitled to a of the bondholders of a railway corporation remedy at all, it has an action against the could maintain a suit against the state railgas and fuel company, which is presumed way commission to restrain the enforcement at least to be able to respond in damages of unreasonable and unjust rates. The for all such as plaintiff may have suffered case, however, was put upon the express by the interruption of the contract. Wheth-ground that the bondholders were the equit er the gas and fuel company in such actionable and the beneficial owners of the prop-, could defend upon the ground that the mu-erty of the corporation, and in that capacnicipality had forbidden the prosecution of ity might "invoke the judgment of the Fedthe work might depend somewhat upon the eral courts as to whether the contract terms of the contract, and upon the right of rights created by the charter, and of which the gas and fuel company to take advantage it is the beneficial owners, are violated by of the interference of the city. As to this subsequent acts of the state in limitation of we express no opinion. It is true the em- the right to collect tolls." In that case the ployees of the plaintiff were arrested, but bondholders were not only the beneficial that fact alone wrought no legal injury to owners of the property, but a reduction of the plaintiff, since, if it were prevented from the tolls might have resulted in the practiany cause for which the gas and fuel com- cal destruction of their securities, and unpany were chargeable, it might bring an ac- less the bill were maintained they were tion for damages against that company, practically remediless. The case has but a with which alone its contract was made, remote analogy to the one under consideraand recover such damages as it could prove tion. to have sustained.

PANY, Plff. in Err.,

v.

(189 U. S. 1)

ARGONAUT MINING COMPANY.
(No. 49)

KENNEDY MINING & MILLING COM-
PANY, Plff. in Err.,

v.

ARGONAUT MINING COMPANY. (No. 58)

As the appellant has shown no legal inIt is true that in a number of cases bills terest in this litigation, and no lack of a have been sustained by one or more stock-complete and adequate remedy at law, it reholders in a corporation against the corpo-sults that the bill was properly dismissed, ration and other parties, to restrain the en- and the decree of the court below is thereforcement of an unconstitutional law fore affirmed. against the corporation itself, but it has always been held, and general equity rule 94 requires, that such bill must contain an al- KENNEDY_MINING & MILLING COMlegation under oath that the suit is not a collusive one to confer on a court of the United States jurisdiction, and must also contain an allegation that the directors of a corporation have refused to institute the proceedings themselves in the name of such corporation, and the efforts of the plaintiff to secure such action on the part of the directors, and the cause of his failure to obtain it. Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; Hawes v. Oakland, 104 U. S. 450, sub nom. Hawkes v. Contra Costa Water Co. 26 L. ed. 827; Corbus v. Alaska Treadwell Gold Min. Co. 187 U. S. 455, ante, p. 157, 23 Sup. Ct. Rep. 157. This rule, however, has no application to subcontractors, who stand in no position to enforce the right of their immediate contractors, such as was the gas and fuel company, or of the owner of the property, who had agreed with such immediate contractors to do the work. The plaintiff in this case stands practically in the position of one who seeks to take advantage of the unconstitutionality of a law in which it has only an indirect interest, and by the enforcement of which it has suffered no legal injury. In this it stands much in the position of the plaintiff in Ty2. ler v. Registration Ct. Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206; and in Turpin v. Lemon, 187 U. S. 51, ante, 20,

Error to state court-Federal questionmining claims extralateral rights estoppel.

A Federal question reviewable in the Supreme

Court of the United States is involved in a
decision of a state court in favor of plaintiff
In a controversy over the ownership of ore,
in which defendant claimed that under the
act of May 10, 1872 (17 Stat. at L. 91, chap.
152, §§ 2, 3), title thereto passed to it
through its patent, instead of to plaintiff, be-
cause the end lines of the latter's patent were
not parallel, plaintiff contending that its ti-
tle was acquired under the act of July 26,
1866 (14 Stat. at L. 251, chap. 262), which
did not require parallelism of end lines.
One of two coterminous mining proprietors
is estopped to assert that, because of the non-
parallelism of the end lines of the other's
1 U. S. Comp. St. 1901, p. 1425.

2

[blocks in formation]

| and paid for; and the patent was dated August 12, 1872.

ceedings a conflict arose as to a segment of During the pendency of the patent proground lying at the north end of the Pioneer, and at the south end of the Kennedy. This controversy was subsequently adjusted by an agreement between the then owners of the two properties. Both parties had sunk working shafts, the openings of which did not start at the apex, but each intersected the vein, and all the workings of both were on this vein. The vein on its Silva mining claim belonging to the Kendownward course passed underneath the nedy Mining & Milling Company, located and patented on another vein, which had its apex within the Silva ground. This Silva ground was patented to the Kennedy Mining & Milling Company, February 6, 1993, and the patent recited an entry made in October, 1892.

The patent contained this reservation: "That the premises hereby granted, with the exception of the surface, may be entered by the proprietor of any other vein, lode, or ledge, the top or apex of which lies outside of the boundary of said granted premises, should the same in its dip be found to penetrate, intersect, or extend into said premises, for the purpose of extracting and removing the ore from such other vein, lode, or ledge."

Statement by Mr. Chief Justice Fuller: This was an action for damages for the value of ore alleged to have been taken by the Kennedy Mining & Milling Company from ground belonging to the Argonaut The ore in dispute, although taken from Mining Company, situated in Amador the Pioneer-Kennedy vein, was south of the county, California. The Kennedy Mining Kennedy south end boundary, as shown by & Milling Company denied taking any ore its patent, and the Kennedy Mining & Millor gold-bearing rock which was the prop-ing Company did not assert any right to it erty of the Argonaut Mining Company, and by virtue of its ownership of the Kennedy averred that it was the owner of the vein mine. The ore, though taken from beneath or lode from which the rock was taken. The the surface of the Silva location, was taken case was submitted to the trial court on an from the discovery lode of the Pioneer loagreed statement of facts, and resulted in a cation, which was the only lode that had its judgment in plaintiff's favor, which judg- apex within that location. It entered the ment was affirmed by the supreme court of location near the middle point of the southCalifornia. 131 Cal. 15, 63 Pac. 148.ern end line, and ran northerly through the Writ of error was then allowed, and each party docketed the case in this court, but the record was only printed in No. 49.

The parties are coterminous mining proprietors upon the same vein or lode, the top or apex of which passes through the Pioneer location, belonging to the Argonaut company, into the Kennedy location, belonging to the Kennedy Mining & Milling Com

pany.

A certain map of the Pioneer and Kennedy mining claims was made part of the findings of fact, but the supreme court of California made use of a diagram simplified from that exhibit, which is as follows:

[See opposite page.]

location in a direction practically parallel to the side lines, through the center of the northern end line.

Plaintiff in error admitted the ownership by the Argonaut Mining Company of the Pioneer mine, and that the lode had its apex within its surface location, but denied that the quartz taken by it from that lode was within that location, on the ground that because of non-parallelism of the end lines of the Pioneer, it carried no extralateral rights; and that if the court could, as matter of law, construct for it parallel end lines, the southerly end line being the base line from which the location was projected, the parallel would be made by extending the northern end line in a direction parallel to the direction of the southerly end line.

The common boundary is the line A-B, crossing the lode at the point marked 1 on this diagram. The line A-B-B' is this end The supreme court of California held that line produced indefinitely in the direction the Argonaut company was entitled to all of the dip or downward course of the vein. the rights which would attach under the The Kennedy mine was entered, and pay-act of 1866, and to any additional rights ment made in November, 1871, and the patent was issued July 29, 1872.

The Pioneer was located under the law of 1866; on February 23, 1872, it was entered

which inured under the act of 1872; that the act of 1866 did not require parallel end lines, and the failure to so parallel them in the Pioneer location did not deprive that

claim of extralateral rights; that the ex-|joyment of all the surface included within tralateral rights on lodes located under the act of 1866, where end lines were not parallel, were to be defined by drawing lines at right angles to the general course of the lode, at the extreme points of the lode within the location; that the contention of plaintiff in error, that because the description in the Pioneer patent commenced attend outside the vertical side lines of said the south end of the claim, and the south end line was first run, the inequalities arising through diverging end lines should be adjusted by drawing a produced line from 1 to 6 in the diagram, parallel to the produced south end line from 3 to 5 in the diagram, could not be sustained.

The ore bodies in controversy were south of the northern end line plane of the Pioneer as made by agreement the boundary line between it and the Kennedy mining claim, and also within the extralateral right planes constructed at right angles to the general course of the lode through the extreme points of the lode within the location.

The act of July 26, 1866 (14 Stat. at L. 251, chap. 262), provided that patentees thereunder should have "the right to follow such vein or lode with its dips, angles, and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." [§ 2.]

The act of May 10, 1872 (17 Stat. at L. 91, chap. 152, §§ 2, 3), provided that the end lines of each claim should be parallel to each other, and that locators should have "the exclusive right of possession and en

the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to ex surface locations: Provided, That their right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges."

Messrs. John Garber, John M. Wright, and Byron Waters for plaintiff in error on original argument

Messrs. Čurtis H. Lindley, Henry Eickhoff, and W. J. McGee for defendant in

error.

Messrs. John Garber and John M. Wright for plaintiff in error on reargument.

Mr. Curtis H. Lindley for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

Plaintiff in error contended in the courts below that, by force of §§ 2 and 3 of the act of Congress of May 10, 1872,1 title to the ore in question passed to it through its patent to the Silva mine, and did not pass

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