[233 U.S. 652, 653] Messrs. G. C. Groce and Jack Beall for plaintiff in error.
[233 U.S. 652, 654] Mr. Rhodes S. Baker for defendant in error.
Mr. Chief Justice White delivered the opinion of the court:
In March, 1909, the city of Ennis passed an ordinance which purported to be a contract with A. M. Morrison, the owner of a waterworks system in the city, granting to him for the term of thirty years the privilege of supplying water to the city and its inhabitants from certain lakes or reservoirs owned by the city. Morrison accepted the ordinance and assigned his rights to the Ennis Water Works, the plaintiff in error. In April 1909, the city passed an ordinance declaring that Morrison and the Ennis Water Works had derived no rights from the supposed contract made with them because the ordinance pur- [233 U.S. 652, 655] porting to confer such rights was originally void, and directing suit to be brought 'to adjudicate the nullity of said claim of franchise and to regain for the city its rights in the premises.' Suit was then brought to have it decreed that the alleged contract with Morrison was void. Pending the suit, and before its decision, in March, 1910, for reasons which the record does not disclose, another ordinance in terms like the previous one was adopted by the city, which was brought into the case by an amendment to the bill. A judgment in favor of the city was affirmed by the court of civil appeals and by the supreme court (105 Tex. 63, 144 S. W. 930). This writ of error is prosecuted upon the assumption that the original ordinance was a contract, and that the decree below gave effect to the subsequent ordinances, thus impairing the obligation of the contract, in violation of the Constitution of the United States.
At the outset our jurisdiction is challenged upon three grounds: 1. Because, even under the assumption that the city ordinances were the sole authority for bringing the suit, those ordinances did not purport in any way to impair the contract if one existed, but simply directed a legal test to be made, and therefore there was no subsequent act of impairment. 2. That even if the ordinances could be tracted as impairing the supposed contract, the court below did not decide the case upon any theory that there was power to impair the contract if one existed, but exclusively rested its action upon the independent ground that the original ordinance, at the time of its adoption, was repugnant to the state Constitution, and was therefore void. 3. That even if it be the duty of this court to determine for itself whether the state court rightly concluded that there was originally no contract, nevertheless there is no jurisdiction in this case because the court below, in deciding that there was originally no contract, based its action upon a rule of state law which had been so conclu- [233 U.S. 652, 656] sively determined at the time the alleged ordinance relied on as a contract was adopted, that the assertion that there is a contract right is of so frivolous and unsubstantial a character as to afford no basis for jurisdiction.
The face of the record so clearly manifests the correctness of the third proposition that we pass at once to its consideration. It is apparent on the face of the opinion of the court below that it did not at all rest its conclusion upon original reasoning concerning the asserted contract, but only applied to the decision of that question a doctrine which, long prior to the adoption of the ordinance relied on as a contract, had been announced by the court of last resort of Texas in Brenham v. Brenham Water Co. 67 Tex. 542, 4 S. W. 143, decided in 1887, in which case there was involved a city ordinance which was substantially identical with the one which is here under consideration. Nothing could more conclusively demonstrate this view than does the following excerpt from the opinion of the court below:
After pointing out that the doctrine of the Brenham Case was consecrated by other decisions which had followed it, and that the principle of interpretation which it applied could not be said to be clearly erroneous, the court said:
It is insisted, however, that since it is our duty when the assertion is made that contract rights are impaired to determine for ourselves whether or not there was a valid contract, we must hence now determine this controversy by resort to original reasoning without regard to the action of the court below in applying the state rule. But while the premise upon which this contention rests is well founded, the error lies in the deduction which seeks to make it applicable to this case. This is clearly the case, since the doctrine which the premise embodies is subject to this qualification, that where a contract which is relied upon arises from a state law or municipal ordinance having the effect of such law, in interpreting for itself such law or ordinance this court will not give to it a meaning in conflict with the settled rule of the state at the time the law was enacted or the ordinance adopted. In other words, that where we come to consider a contract arising from a state law or ordinance, we will treat it as if there was embodied in their text the settled rule of law which existed in the state at the time the state action relied upon as a [233 U.S. 652, 658] contract was taken. Burgess v. Seligman, 107 U.S. 20 , 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Warburton v. White, 176 U.S. 484 , 44 L. ed. 555, 20 Sup. Ct. Rep. 404; Gulf & S. I. R. Co. v. Hewes, 183 U.S. 68 , 46 L. ed. 87, 22 Sup. Ct. Rep. 26; Freeport Water Co. v. Freeport, 180 U.S. 587 , 45 L. ed. 679, 21 Sup. Ct. Rep. 493; Great Southern Fire Proof Hotel Co. v. Jones, 193 U.S. 532, 548 , 48 S. L. ed. 778, 787, 24 Sup. Ct. Rep. 576.
As by the application of this settled rule the absolute want of foundation for the asserted claim of Federal right appears on the face of the ordinance relied upon, it follows that there was no foundation whatever for the theory upon which the jurisdiction of this court was invoked, and hence it is our duty to dismiss the cause for want of jurisdiction because of the absolutely unsubstantial and frivolous character of the Federal right relied upon.
Dismissed for want of jurisdiction.