[230 U.S. 98, 99] Messrs. Richard H. Johnson and Richard Z. Johnson for plaintiff in error.
Messrs. Charles C. Cavanah, Charles F. Reddoch, John J. Blake, and John F. MacLane for defendant in error.
Mr. Justice Lurton delivered the opinion of the court:
This is a writ of error seeking to review a judgment of the circuit court of appeals of the ninth circuit, reversing and remanding for a new trial a judgment of the circuit court for the district of Idaho, for 'license fees' or rentals claimed to be due to Boise City under ordinance No. 678, which had accrued prior to the claim involved in cases No. 573 and 639, argued with this case and disposed of by an opinion just handed down. [ 230 U.S. 84 , 57 L. ed. --, 33 Sup. Ct. Rep. 997.]
This writ of error must be dismissed. The jurisdiction of the circuit court, as shown by the plaintiff's pleading, depended upon diversity of citizenship, and upon that ground the water company removed the action from the state court to the circuit court of the United States. One of the defenses of the water company, asserted in its answer, was that it had by purchase and agreement succeeded to grants to street easements which had not expired, and that ordinance No. 678 of June 7, 1906, imposing upon it a license fee or rental for the use and occupation of the streets of the city with its pipes and appliances for the distribution of water, was in derogation of the street rights theretofore granted, and void as in contravention of article 1, 10 of the Constitution of the United States, and in violation of the 14th Amendment thereto. This claim was denied and the ordinance held valid. Upon that and other issues in the case the circuit judge found for the plaintiff, the facts being stipulated and a jury waived. The case was therefore one [230 U.S. 98, 100] in which jurisdiction had been invoked wholly upon diversity of citizenship, but in the course of the case there arose a question as to the constitutionality of the ordinance which was the foundation of the plaintiff's right. The unsuccessful party had, therefore, a right to bring the case direct to this court, or, at its election, carry it to the circuit court of appeals. It elected the latter course. The circuit court of appeals might have certified the question to this court, or it might decided it along with the other questions in the case. But from its judgment no writ of error will lie to this court, as the judiciary act of 1891 [26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488] does not contemplate two reviews, one by the circuit court of appeals and another by this court in such cases. For this reason the writ of error must be dismissed. Robinson v. Caldwell, 165 U.S. 359 , 41 L. ed. 745, 17 Sup. Ct. Rep. 343; Loeb v. Columbia Twp. 179 U.S. 472 , 45 L. ed. 280, 21 Sup. Ct. Rep. 174; Macfadden v. United States, 213 U.S. 288 , 53 L. ed. 801, 29 Sup. Ct. Rep. 490.