[28]

rian proprietor to draw water from the river
for its own use, that its pipes were being laid
for its own use only, that the plaintiff had no
exclusive privilege that would impair such use
of the water by the defendant Company, and
that the rights and privileges claimed by the
plaintiff would constitute a monopoly and be
therefore null and void.

thought it unnecessary and "entirely out of
place" to consider the effect of that provision
upon the exclusive privilege of the plaintiff;
and it was not suggested, either in the petition
for the writ of error, or in the assignment of
errors, or in any of the briefs filed in this court,
that any effect was given by the judgment of
the state court to that provision of the Consti-
tution of the State.

The evidence showed that the pipes of the
defendant Company were being laid exclusive- The only grounds on which the plaintiff in
ly for the use of its factory, and that no private error attacks the judgment of the state court
ownership intervened between it and the river, are that the court erred in its construction of
but only a public street, and a broad quay or the contract between the State and the plaintiff,
levee, owned by the city and open to the pub-contained in the plaintiff's charter; and in not
lic, except that some large sugar sheds occu- adjudging that the ordinance of the city coun-
pied by lessees of the city, stood upon it, and cil, granting to the defendant Company permis-
that the tracks of a railroad were laid across it. sion to lay pipes from its factory to the river,
The grounds upon which the Supreme Court was void because it impaired the obligation of
of Louisiana gave judgment for the defendant that contract.
appear by its opinion, which, under the prac-
tice of that State, is strictly part of the record,
and has always been so considered by this court
on writs of error, as well under the Judiciary
Act of 1789, which provided that "no other er-
ror shall be assigned or regarded as a ground
of reversal than such as appears on the face of This being a writ of error to the highest
the record," as under the later Acts, in which court of a State, a federal question must have
that provision is omitted. Acts Sept. 24, 1789, been decided by that court against the plaintiff
chap. 20, § 25, 1 Stat. at L. 86; February 5, in error; else this court has no jurisdiction to
1867, chap. 28, § 2, 14 Stat. at L. 386; Rev. review the judgment. As was said by Mr.
Stat. § 709; Almonester v. Kenton, 50 U. S. Justice Story, fifty years ago, upon a full re-
9 How. 1, 9 [13:21, 24]; Grand Gulf R. Co. v. view of the earlier decisions: "It is sufficient if
Marshall, 53 U. S. 12 How. 165 [13:938];Cousin it appears by clear and necessary intendment
v. Labatut, 60 U. S. 19 How. 202 [15: 601]; Del- that the question must have been raised, and
mas v. Merchants Mut. Ins. Co. 81 U. 8. 14 must have been decided in order to have in-
Wall. 661, 663, 667 [20:757-759]; Crossley v.duced the judgment,” and “it is not sufficient
New Orleans, 108 U. S. 105 [27: 667]; Crescent
City Co. v. Butchers Union Co. 120 U. S. 141,
146 [30:614, 616].

The arguments at the bar were principally
directed to the question whether upon the facts
proved the factory of the defendant Company
was contiguous to the river.
But that is not a [29]
question which this court upon this record is
authorized to consider.

"

to show that a question might have arisen or
been applicable to the case, unless it is further
shown, on the record, that it did arise, and was
That opinion, as printed in 35 La. Ann. 1111, applied by the state court to the case." Стого
and in the record before us, shows that the ell v. Randell, 35 U. S. 10 Pet. 368, 398 [9:458,
grounds of the judgment were: that the right 470]. The rule so laid down has been often
conferred by the Legislature of the State upon affirmed, and constantly acted on.
Grand Gulf
the Commercial Bank by its charter in 1833, R. Co. v. Marshall, 58 U. 8. 12 How. 165, 167
and confirmed to the plaintiff by its charter in [13:938,939]; Bridge Proprietors v. Hoboken
1877, was the exclusive privilege of supplying Co. 68 U. S. 1 Wall. 116, 143 [17:571,576];
the city and its inhabitants with water by means Steines v. Franklin County, 81 U. S. 14 Wall.
of pipes and conduits through the streets and 15, 21 [20:846,848]. In Klinger v. Missouri,
lands of the city; that by the general law of Louis- 80 U. S. 13 Wall. 257, 263 [20:635, 637], Mr.
iana, independently of anything in those stat- Justice Bradley declared the rule to be well set-
utes, riparian or contiguous proprietors had the tled that "Where it appears by the record that
right of laying pipes to the river to draw the the judgment of the state court might have
water necessary for their own use, subject to been based either upon a law which would
the authority of the State and the city, in the raise a question of repugnancy to the Consti-
exercise of the police power, to regulate this tution, laws, or treaties of the United States,
right, as the public security and the public or upon some other independent ground, and it
good might require; that section 18 of the appears that the court did, in fact, base its
plaintiff's charter had no other object than to judgment on such independent ground, and
secure, beyond the possibility of doubt, this not on the law raising the federal question, this
right of the contiguous owners and the control court will not take jurisdiction of the case,
of the municipal authorities; and that the city even though it might think the position of the
was authorized to permit the defendant Com-state court an uusound one." And in many
pany to lay pipes across the quay and through
the streets from the river to its factory, for the
purpose of supplying it with water for its own

use.

The Constitution of Louisiana of 1879 does provide, in article 258, that "The monopoly features in the charter of any corporation now existing in the State, save such as may be contained in the charters of railroad companies, are hereby abolished." But the opinion of the Supreme Court of the State shows that it

recent cases, under section 709 of the Revised
Statutes, this court, speaking by the Chief Jus
tice, has reasserted the rule that to give it ju-
risdiction of a writ of error to a state court, it
must appear affirmatively, not only that a fed-
eral question was presented for decision to the
highest court of the State having jurisdiction,
but that "its decision was necessary to the de-
termination of the cause, and that it was act-
ually decided, or that the judgment as ren-
dered could not have been given without de

ciding it." Brown v. Atwell, 92 U. S. 327 [23: | of this article of the Constitution of the Unit511]; Citizens Bank v. Board of Liquidation, ed States. 98 U. S. 140 [25:114]; Chouteau v. Gibson, 111 [30] U. S. 200 [28:400]; Adams County v. Buriing ton & M. R. Co. 112 U. S. 123 [28:678]; Detroit City R. Co. v. Guthard, 114ˇU. S. 133 [29: 118].

[311

In order to come within the provision of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired but it must have been impaired by a law of the State. The prohibition is aimed at the legislative power of the State, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.

"

For instance, the power of determining what persons and property shall be taxed belongs exclusively to the legislative branch of the government, and, whether exercised by the Legislature itself, or delegated by it to a municipal corporation, is strictly a legislative power. U. S. v. New Orleans, 98 U. S. 381, 392 [25:225]; Meriwether v. Garrett, 102 U. S. 472 [26:197]. Accordingly, where the city council of Charleston, upon which the Legislature of South Carolina, by the city charter, had conferred the power of taxing persons and property within the city, passed ordinances assessing a tax upon bonds of the city, and thus diminishing the amount of interest which it had agreed to pay, this court held such ordinances to be laws impairing the obligation of contracts, for the reason that the city charter gave limited legislative power to the city council; and when the ordinances were passed under the supposed authority of the legislative Act, their provisions became the law of the State. Murray v. Charleston, 96 U. S. 432, 440 [24:760, 761]. See also Home Ins. Co. v. City Council of Augusta, 93 U. S. 116 [23:825].

This court, therefore, has no jurisdiction to
review a judgment of the highest court of a
State, on the ground that the obligation of a
contract has been impaired, unless some legis-
lative Act of the State has been upheld by the
judgment sought to be reviewed. The general
rule, as applied to this class of cases, has been
clearly stated in two opinions of this court,
delivered by Mr. Justice Miller. "It must be
the Constitution or some law of the State, But the ordinance now in question involved
which impairs the obligation of the contract, no exercise of legislative power. The Legis-
or which is otherwise in conflict with the Con- lature, in the charter granted to the plaintiff,
stitution of the United States; and the decision provided that nothing therein should be so
of the state court must sustain the law or Con- construed as to prevent the city council from
stitution of the State, in the matter in which granting to any person or persons, contiguous
the conflict is supposed to exist, or the case for to the river, the privilege of laying pipes to the
this court does not arise.' Missouri & M. R. river, exclusively for his or their own use."
Co. v. Rock, 71 U. S. 4 Wall. 177, 181 [18:381, The Legislature itself thus defined the class of
882]. "We are not authorized by the Judi- persons to whom, and the object for which,
ciary Act to review the judgments of the state the permission might be granted. All that was
courts, because their judgments refuse to give left to the city council was the duty of deter-
effect to valid contracts, or because those judgmining what persons came within the defini
ments, in their effect, impair the obligation of
contracts. If we did, every case decided in a
state court could be brought here, where the
party setting up a contract alleged that the
court had taken a different view of its obliga-
tion to that which he held.' Knoxv. Exchange
Bank, 79 U. S. 12 Wall. 379, 383 [20:414, 415].
As later decisions have shown, it is not strict-
ly and literally true that a law of a State, in
order to come within the constitutional prohi-
bition, must be either in the form of a statute
enacted by the Legislature in the ordinary
course of legislation, or in the form of a con-
stitution established by the people of the State
as their fundamental law.

In Williams v. Bruffy, 96 U. S. 176, 183 [24: 716, 717], it was said by Mr. Justice Field, delivering judgment, "Any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State within the meaning of the clause cited relating to the jurisdiction of this court" (Rev. Stat. § 709); and it was therefore held that a statute of the so called Confederate States, if enforced by one of the States as its law, was within the prohibition of the Constitution.

So a by-law or ordinance of a municipal corporation may be such an exercise of legislative power delegated by the Legislature to the corporation as a political subdivision of the State, having all the force of law within the limits of the municipality, that it may proper ly be considered as a law, within the meaning

tion, and how and where they might be per-
mitted to lay pipes, for the purpose of securing
their several rights to draw water from the
river, witnout unreasonably interfering with the
convenient use by the public of the lands and
highways of the city. The rule was established
by the Legislature, and its execution only com-
mitted to the municipal authorities. The
power conferred upon the city council was
not legislative, but administrative, and might
equally well have been vested by law in the
mayor alone, or in any other officer of the city.
N. O., M. & T. R. Co. v. Ellerman, 105 U. Š.
166, 172 [26:1015, 1017]; Day v. Green, 4 Cush.
433, 438. The permission granted by the city
council to the defendant Company, though put
in the form of an ordinance, was in effect but
a license, and not a by-law of the city, still less
a law of the State. If that license was within
the authority vested in the city council by the
law of Louisiana, it was valid; if it transcended
that authority, it was illegal and void. But
the question whether it was lawful or unlaw
ful depended wholly on the law of the State,
and not at all on any provision of the Consti-
tution or laws of the United States.

The cases of New Orleans Water Works Co. v.
Rivers, 115 U. S. 674 [29:525], and St. Tammany
Water Works Co. v. New Orleans Water Works Co.
120 U. S. 64 [30:563], on which the plaintiff re-
lied in support of its bill, were essentially dif
ferent from the case at bar. In each of those
cases, the validity of the article of the Consti-

[32]

[33]

[34]

1887.

tution of 1879 abolishing monopolies was drawn | from the record that the judgment of the count
in question by the bill, and relied on by the
defendants. Rivers did not contend that his
property was contiguous to the river. The St.
Tammany Water Works Company had been in-
corporated since the New Orleans Water Works
Company, under a general statute of the State,
for the purpose of supplying the whole city
and its inhabitants with water. And both
those cases were appeals from the Circuit Court
of the United States, upon which this court
was not restricted to the consideration of fed-
eral questions decided below, but had juris-
diction to determine the whole case.

of original jurisdiction was rendered before
that article was adopted, we could not enter-
tain jurisdiction when the decision in that par-
ticular point was placed on a ground which ex-
isted as a fact and was beyond our control, an
was sufficient to support the judgment, because
another reason was given which, if it had been
the only one, we could review and might re-
Delmas v. Merchants Mut. Ins. Co. 81
verse."
U. S. 14 Wall. 661, 666 [20: 757, 759]. In Del-
mas v. Insurance Co., just cited, where the
judgment of the Louisiana court was put
wholly upon that article of the Constitution,
The difference in the extent of the jurisdic- this court therefore took jurisdiction, and re-
tion of this court on writ of error to the high-versed the judgment, but said that where a de-
est court of a State, and on appeal from a Čir- cision of the highest court of a State, "whether
cuit Court of the United States-as affected by holding such contract valid or void, is made
the ground of the decision of the court below-upon the general principles by which courts
is illustrated by the cases of contracts payable determine whether a consideration is good or
in Confederate currency, or made in consider- bad on principles of public policy, the decision
ation of loans of Confederate currency, during is one we are not authorized to review." And
the war of the rebellion, and by the cases of in Tarver v. Keach, 82 U. S. 15 Wall. 67 [21:82],
promissory notes given before that war for the as well as in Dugger v. Bocock, 104 U. S. 596,
601 [26:846, 848], the proposition thus stated
price of persons sold as slaves.
So in Steven-
was affirmed, and was acted on by dismissing
a writ of error to a state court.

In Thorington v. Smith, 75 U. S. 8 Wall. 1
[19:361], this court, reversing a judgment of
the Circuit Court of the United States in Ala-son v. Williams, 86 U. S. 19 Wall. 572 [22:162],
bama, held that a contract for the payment of where a judgment of the Supreme Court of
money in Confederate currency was not un- Louisiana, annulling a judgment of a lower
lawful. Like decisions have often been made court, on the ground that the promissory notes
in later cases brought here from the Circuit on which it was rendered had been given for a
Courts of the United States. Planters Bank loan of Confederate money, was brought here
v. Union Bank, 83 U. S. 16 Wall. 483, 497 [21: by writ of error, this court, speaking by Mr.
473, 479]: Confederate Note Case, 86 U. S. 19 Justice Field, after disposing of a distinct fed-
Wall. 548 [22:196]; Wilmington & W. R. Co. v. eral question, and observing that the aforesaid
King, 91 U. 8. 3 [23:186]; Cook v. Lillo, 103 ground would not be deemed, in a federal
U. S. 792 [26:460]. Yet in Bethel v. Demaret, court, sufficient to set aside the judgment, said:
77 U. S. 10 Wall. 537 [19:1007], where a suit on "But the ruling of the state court, in these par-
a mortgage to secure the payment of promis- ticulars, however erroneous, is not subject to
It presents no federal question
sory notes given for a loan of Confederate cur-review by us.
rency had been dismissed by the Supreme Court for our examination. It conflicts with no part
of Louisiana, on the ground that the notes and of the Constitution, laws or treaties of the
mortgage were nullities, because the Confeder- United States. Had the state court refused to
ate currency, which constituted the considera- uphold the judgment because of the provision
tion, was illegal by the general law of the in the Constitution of the State, subsequently
State, this court dismissed the writ of error, adopted, prohibiting the enforcement of con-
because no statute of the State was drawn in tracts founded upon Confederate money, a
question. And in Bank of West Tennessee v. federal question would have been presented.
Citizens Bank of Louisiana, 80 U. S. 13 Wall. That provision, however, does not appear to
432 [20:514]; S. C. 81 U. S. 14 Wall. 9 [20:514], have caused the ruling." 86 U. S. 19 Wall. 576,
where the Supreme Court of Louisiana, affirm- 577 [22:163, 164]. Those cases clearly estab-
ing a judgment rendered by an inferior court of lish that, on a writ of error to a state court,
the State before the adoption of article 127 this court had jurisdiction to review and re-
of the State Constitution of 1868, by which "all verse the judgment, if that judgment was based
agreements, the consideration of which was wholly upon the State Constitution; but that
Confederate money, notes or bonds, are null if it was based on the previous law of the State,
and void, and shall not be enforced by the this court had no jurisdiction to review it, al-
courts of this State," dismissed a suit to recover though the view taken by the state court was
money payable in Confederate notes, basing its adverse to the view taken by this court in ear-
judgment both upon that article of the Consti- lier and later cases coming up from a Circuit
tution and upon adjudications in that State Court of the United States.
before its adoption, this court, speaking by
Mr. Justice Swayne, dismissed a writ of error,
and said: "The result in this case would have
been necessarily the same if the Constitution
had not contained the provision in question.
This brings the case within the authority of
Bethel v. Demaret," above cited. In another
case at the same term, the disposition by this
court of the case of Bank of West Tennessee v.
Citizens Bank of Louisiana was thus explained
by Mr. Justice Miller: "As it was apparent

In actions brought upon promissory notes given for the purchase of slaves before the war, the same distinction has been maintained. The Constitutions adopted in 1868, by the States of Arkansas, Georgia and Louisiana, respectively, provided that the courts of the State should not enforce any contract for the purchase or sale of slaves. In Osborn v. Nicholson, 80 U. S. 13 Wall. 654 [20:689], a judgment rendered for the defendant by the Circuit Court of the United States for the District of Arkansas, in an ac

613

135

36]

tion on a promissory note for the purchase of a R. Co. v. Palmes, 109 U. S. 244 [27: 922]; Mem-
slave, was reversed, because this court was of phis Gas Light Co. v. Shelby County, 109 U. S. [37]
opinion that the contract was valid at the time 398 [27: 976]; Vicksburg S. & P. R. Co. v.
when it was made, and therefore its obligation Dennis, 116 U. S. 665 [29: 770]. In each of
was impaired by the subsequent Constitution. those cases, the state court upheld a right
For like reasons, this court, in White v. Hart, claimed under the later statute, and could not
80 U. S. 13 Wall. 646 [20:685], reversed a sim- have made the decision that it did without up-
ilar judgment rendered by the Supreme Court holding that right; and thus gave effect to the
of the State of Georgia, and based upon the law of the State drawn in question as impair-
provision of its Constitution. But in Palmering the obligation of a contract.
v. Marston, 81 U. S. 14 Wall. 10 [20:826], The distinction between the two classes of
where the Supreme Court of Louisiana, in a cases-those in which the state court has, and
similar action, had placed its judgment for the those in which it has not, given effect to the
defendant upon the law of the State, as estab- statute drawn in question as impairing the ob-
lished and acted upon before the adoption of ligation of a contract-as affecting the consider-
the Constitution of 1868 and since adhered to, ation by this court, on writ of error, of the true
and had declined to pass upon the question construction and effect of the previous contract,
whether the provision of that Constitution was is clearly brought out in Kennebec & P. R. Co. v.
valid or invalid as an Act of Legislation and in Portland & K. R. Co. 81 U. S. 14 Wall. 23 [20:
relation to the article of the Constitution of the 850]. That was a writ of error to the Supreme
United States against impairing the obligation Judicial Court of Maine, in which a foreclos
of contracts, because it was unnecessary and ure, under a Statute of 1857, of a railroad mort-
could have no practical influence upon the re-gage made in 1852, was contested upon the
sult, this court dismissed a writ of error, for ground that it impaired the obligation of the
want of jurisdiction, saying: "It thus appears contract, and the parties agreed that the opin
that the provision of the State Constitution ion of that court should be considered as part
upon the subject of slave contracts was in no of the record. Mr. Justice Miller, in delivering
wise drawn in question. The decision was judgment, after stating that it did appear that
governed by the settled principles of the juris- the question whether the Statute of 1857 im-
prudence of the State. In such cases this court paired the obligation of the mortgage contract
has no power of review." "Substantially the 'was discussed in the opinion of the court, and
same question arose in Bank of West Tennessee that the court was of the opinion that the stat
v. Citizens Bank of Louisiana [supra], hereto- ute did not impair the obligation of the con-
fore decided. The writ of error was dismissed tract," said: "If this were all of the case, we
for want of jurisdiction. The same disposition should undoubtedly be bound in this court to in-
must be made in this case."
quire whether the Act of 1857 did, as construed
by that court, impair the obligation of the con-
tract. Bridge Proprietors v. Hoboken Co. 68 U.
S. 1 Wall. 116 [17: 571]. But a full examina
tion of the opinion of the court shows that its
judgment was based upon the ground that the
foreclosure was valid, without reference to the
Statute of 1857, because the method pursued
was in strict conformity to the mode of fore-
closure authorized, when the contract was
made, by the laws then in existence. Now, if
the state court was right in their view of the
law as it stood when the contract was made, it
is obvious that the mere fact that a new law
was made does not impair the obligation of the
contract. And it is also clear that we cannot
inquire whether the Supreme Court of Maine
was right in that opinion. Here is, therefore, [38]
a clear case of a sufficient ground on which the
validity of the decree of the state court could
rest, even if it had been in error as to the effect
of the Act of 1857 in impairing the obligation
of the contract. And when there is such dis-
tinct and sufficient ground for the support of
the judgment of the state court, we cannot take
jurisdiction, because we could not reverse the
case, though the federal question was decided
erroneously in the court below against the
plaintiff in error. Rector v. Ashley, 73 U. S.
6 Wall. 142 [18: 733]; Klinger v. Missouri, 80
U. S. 13 Wall. 257 [20: 635]; Steines v. Frank-
lin County, 81 U. 8. 14 Wall. 15 [20: 846].
The writ of error must therefore be dismissed
for want of jurisdiction." Kennebec & P. R.
Co. v. Portland & K. R. Co. 81 U. S. 14 Wall
25, 26 [20: 851].

These cases are quite in harmony with the line of cases, beginning before these were decided, in which, on a writ of error upon a judgment of the highest court of a State, giving effect to a statute of the State, drawn in question as affecting the obligation of a previous contract, this court, exercising its paramount authority of determining whether the statute up. held by the state court did impair the obligation of the previous contract, is not concluded by the opinion of the state court as to the validity or the construction of that contract, even if contained in a statute of the State, but determines for itself what that contract was. Leading cases of that class are Bridge Proprietors v. Hoboken Co. 68 U. S. 1 Wall. 116 [17: 571], in which the state court affirmed the validity of a statute authorizing a railway viaduct to be built across a river, which was drawn in question as impairing the obligation of a contract, previously made by the State with the proprietors of a bridge, that no other bridge should be built across the river; and cases in which the state court affirmed the validity of a statute, imposing taxes upon a corporation, and drawn in question as impairing the obligation of a contract in a previous statute exempting it from such taxation. Piqua Branch of State Bunk v. Knoop, 57 U. S. 16 How. 369 [14: 977]; Ohio Life Ins. & T. Co. v. Debolt, 57 U. S. 16 How. 416 [14: 997]; Mechanics & Traders Bank v. Debolt, 59 U. 8. 18 How. 380 [15: 458]; Jeffer. son Branch Bank v. Skelly, 66 U. S. 1 Black, 436 [17: 173]; New Jersey v. Yard, 95 U. S. 104 [24: 352]; Memphis & C. R. Co. v. Gaines, 97 U. S. 697, 709 [24: 1091, 1094]; University v. People, 99 U. S. 309 [25: 387]; Louisville & N.

The result of the authorities, applying ta cases of contracts the settled rules, that in or

[39]

[109]

der to give this court jurisdiction of a writ of |
error to a state court, a federal question must
have been, expressly or in effect, decided by
that court, and, therefore, that when the rec-
ord shows that a federal question and another
question were presented to that court and its
decision turned on the other question only, this
court has no jurisdiction, may be summed up
as follows: When the state court decides against
a right claimed under a contract, and there was
no law subsequent to the contract, this court
clearly has no jurisdiction. When the existence
and the construction of a contract are undis-
puted, and the state court upholds a subsequent
law, on the ground that it did not impair the ob-
ligation of the admitted contract, it is equally
clear that this court has jurisdiction. When the
state court holds that there was a contract confer-
ring certain rights, and that a subsequent law did
not impair those rights, this court has jurisdic-
tion to consider the true construction of the
supposed contract; and if it is of opinion that
it did not confer the rights affirmed by the state
court, and therefore its obligation was not im-
paired by the subsequent law, it may on that
ground affirm the judgment. So, when the
state court upholds the subsequent law, on the
ground that the contract did not confer the right
claimed, this court may inquire whether the
supposed contract did give the right, because,
if it did, the subsequent law cannot be upheld.
But when the state court gives no effect to the
subsequent law, but decides, on grounds inde-
pendent of that law, that the right claimed was
not conferred by the contract, the case stands
just as if the subsequent law had not been
passed, and this court has no jurisdiction.

In the present case. the Supreme Court of
Louisiana did not, and the plaintiff in error
does not pretend that it did, give any effect to
the provision of the Constitution of 1879 abol-
ishing monopolies. Its judgment was based
wholly upon the general law of the State, and
upon the construction and effect of the charter
from the Legislature to the plaintiff Company,
and of the license from the city council to the de-
fendant Company, and in no degree upon the
Constitution or any law of the State subsequent
to the plaintiff's charter. The case cannot be
distinguished in principle from the cases above
cited, in which writs of error to state courts
have been dismissed for want of jurisdiction.
As was said in Bank of West Tennessee v. Citi-
zens Bank of Louisiana, 80 U. S. 13 Wall. 432
[20: 514], above cited, "The result in this case
would have been necessarily the same if the
Constitution had not contained the provision in
question."

Writ of error dismissed for want of jurisdic

State aid bonds—when create no lien on railroad 1. Where state bonds, issued to aid a railroad, are void as being in violation of the State Constitution. the acceptance and use of the bonds by the railroa company does not create a lien in favor of the State upon the income of the road for the amount of the bonds, of which a purchaser of the bonds can avail himself as against a subsequent purchaser of the road.

2. A new company, organized by purchasers of such road on mortgage foreclosure, took the road free of incumbrance in favor of the State, and neither the State nor its bondholders are entitled to a sequestration of the income arising therefrom in [Nos. 70, 71.]

its hands.

Argued Jan. 17, 18, 1888. Decided March 19,1888.

APPEALS from judgments of the Circuit Court of the United States for the Eastern District of Arkansas, dismissing actions to subject the income of defendants' railroads to the payment of the interest due on state aid bonds. Affirmed.

Reported below, 18 Fed. Rep. 344, 21 Fed. Rep. 370.

The facts are fully stated in the opinion. Messrs. John R. Dos Passos, U. M. Rose, John McClure, and A. H. Garland, for appellants:

The Act of the General Assembly of the State of Arkansas, of July 21, 1868, created an equitable or statutory lien or charge in favor of the State, upon the income and revenue of the roads.

Eames v. Johnson, 4 Allen, 383; Const. art. 10, 2; Fletcher v. Oliver, 25 Ark. 295; 1 Desty, Taxation, § 1; Heine v. Levee Comrs. 86 U. S. 19 Wall. 655 (22:223); Tompkins v. Little Rock & F. S. R. Co. 15 Fed. Rep. 6; Coats v. Hill, 41 Ark. 149.

The usual course of enforcing a lien in equity, if not discharged, is by a sale of the property to which it is attached."

2 Story, Eq. Jur. 12th ed. § 1217; Neate v. Marlborough, 3 Mylne & C. 407, 415; Price v. Palmer, 23 Hun, 504; Perry v. Board of Missions, 3 Cent. Rep. 62, 102 N. Y. 99.

The right to foreclose is incident to a mort gage.

Hull v. Sullivan R. Co. C. C. U. S. per Cur tis, J., 11th Monthly Law Rep. N. S. 138-144. A lien given by a statute may be enforced in court of equity, although no mode for its enforcement is given by the statute.

a

2 Desty, Taxation, 734, and cases cited. Where the parties came to an agreement as to the produce of land, equity will specifically enforce the agreement against the party who makes it and all persons with notice.

Ketchum v. St. Louis, 101 U. S. 306 (25:999); Legard v. Hodges, 3 Bro. Ch. 531-538; Ex Parte Wills, 1 Ves. Jr. 162; 8. C. 2 Cox, Eq. 233; Abbott v. Stratten, 3 Jones & La T. 603; Smith v. Patton, 12 W. Va. 541; Smith Company v. McGuinness, 14 R. I. 59; Roach v. Ahern, 17 N. Y. Week. Dig. 188.

A lien is a right to possess and retain property until some charge attaching to it is paid or discharged.

1 Story, Eq. Jur. § 506; Bisph. Prin. Eq. § 351.

The generality of the language creating the lien forms no objection to its validity.

Wilson v. Boyce, 92 U. S. 325 (23:610); Payne v. Wilson, 74 N. Y. 348.

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