John King Mfg Co v. City Council of August, 392

• Citation: 72 L.Ed. 801,48 S.Ct. 489,277 U.S. 100
• Decision Date: 14 May 1928
• Docket Number: No. 392,392
• Parties: JOHN P. KING MFG. CO. v. CITY COUNCIL OF AUGUST et al
• Court: United States Supreme Court

277 U.S. 100

48 S.Ct. 489

72 L.Ed. 801

JOHN P. KING MFG. CO.

v CITY COUNCIL OF AUGUST et al.

No. 392.

Argued March 12, 1928.

Decided May 14, 1928.

Mr. Bryan Cumming, of Augusta, Ga., for plaintiff in

error.

Mr. E. H. Callaway, of Augusta, Ga., for defendants in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is a suit brought in a state court in Georgia to restrain the enforcement of an ordinance of the city of Augusta fixing rates for water power supplied from a canal owned and maintained by the city. The plaintiff is a manufacturing company which operates a mill adjacent to the canal with water power supplied therefrom. The objection urged against the ordinance is that it is repugnant to the contract clause of the Constitution of the United States, and therefore invalid, in that it impairs the obligation of a prior contract whereby the city undertook to supply water power for the plaintiff's mill in perpetuity at a lower rate than that fixed in the ordinance. The court of first instance held the ordinance valid and accordingly dismissed the suit. This was affirmed by the Supreme Court of the state, 164 Ga. 306, 138 S. E. 159; and the case is here on writ of error allowed by the Chief Justice of that court.

Counsel on both sides treat the case as one which rightly may be brouhgt to this court on writ of error, but some members of the court doubt that it is such a case. Therefore this question will be given immediate consideration.

The jurisdiction of this court to review on writ of error judgments or decrees of state courts of last resort is defined by section 237(a) of the Judicial Code, as set forth in the amendatory Act of February 13, 1925, c. 229, 43 Stat. 936, 28 USCA § 344(a). As there defined this jurisdiction extends to two classes of cases:

(1) 'Where is drawn in question the validity of a treaty or statute of the United States, and the decision is against its validity;'

(2) 'Where is drawn, in question the validity of a statute of any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity.'

Plainly the present case is not within the first provision. Is it within the second? This depends on the sense in which the words 'a statute of any state' are used therein. If they are used as narrowly comprehending only an enactment of the state Legislature, the case is excluded; but, if they are used as broadly comprehending any legislation proceeding from the lawmaking agencies of the state, the case is included.

In usage, 'statute' is a term which has both a restricted and a broad signification. This is reflection in the following excerpt from Bouvier's Law Dictionary, Rawle's Revision:

'Statute.-A law established by the act of the legislative power. An act of the Legislature. The written will of the Legislature, solemnly expressed according to the forms necessary to constitute it the law of the state.

'This word is used to designate the written law in contradistinction to the unwritten law.

'Among the civilians, the term 'statute' is generally applied to laws and regulations of every sort; every provision of law which ordains, permits, or prohibits anything is designated a statute, without considering from what source it arises.'

The Constitution of the United States does not use the term 'statute,' but it does employ the term 'law,' often regarded as an equivalent, to describe an exertion of legislative power. Thus it is declared that a bill presented in either house of Congress, if receiving prescribed favorable consideration, shall 'become a law,' article 1, § 7; that Congress may 'make all laws' necessary and proper for carrying into execution various enumerated powers, article 1, § 8, cl. 18; that no stated 'shall pass' any 'ex post facto law, or law impairing the obligation of contracts,' article 1, § 10, cl. 1; that no state 'shall make or enforce any law' abridging the privileges or immunities of citizens of the United States, Fourteenth Amendment, § 1; that the Constitution, 'laws,' and treaties of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or 'laws' of any state to the contrary notwithstanding, article 6, cl. 2; and that the judicial power of the United States shall extend, among others, to all cases in law and equity arising under the Constitution, 'laws,' and treaties of the United States, article 3, § 2.

It of course rests with each state to determine in what form and by what agencies its legislative power may be exerted. It may legislate little or much in its Constitution, may permit the electorate to make laws by direct vote, may intrust its Legislature with wide lawmaking functions, and may delegate legislative authority to subordinate agencies, such as municipal councils and state com- missions. But whether this power be exerted in one form or another, or by one agency or another, the enactments put forth, whether called constitutional provisions, laws ordinances, or orders are in essence legislative acts of the state; they express its will, and have no force otherwise. As respects their validity under the Constitution of the United States, all are on the same plane. If they contravene the restraints which that instrument places on the legislative power of a state, they are invalid, no matter what their form or by what agency put forth; for, as this court has said, the protection which these restraints afford applies, 'whatever the form in which the legislative power * * * is exerted; that is, whether it be by a Constitution, an act of the Legislature, or an act of any subordinate instrumentality of the state exercising delegated legislative authority, like an ordinance of a municipality or an order of a commission.' Standard Scale Co. v. Farrell, 249 U. S. 571, 577, 39 S. Ct. 380, 382 (63 L. Ed. 780).

The jurisdictional provision we are considering is designed to be in aid of such protection. It proceeds on the theory that through inadvertence or design those who are intrusted with the legislative power of a state may exercise the same in a manner forbidden by the Constitution of the United States, and that the state courts may uphold such legislation when it should be held invalid. Unlike other state action, legislation consists of rules having continuing force and intended to be observed and applied in the future; and this regardless of the state agency from which it proceeds.

Were the question an open one, these considerations would afford impelling reasons for holding that the jurisdictional provision uses the words 'a statute of any state' in their larger sense and is not intended to make a distinction between acts of a state Legislature and other exertions of the state's lawmaking power, but rather to include every act legislative in character to which the state gives its sanction. But the question is not an open one; it heretofore has been resolved in keeping with the view just indicated.

The jurisdictional provision originally was part of section 25 of the Act of September 24, 1789, c. 20, 1 Stat. 73, 85 (28 USCA § 344), which authorized this court to review on writ of error judgments and decrees of state courts of last resort in cases—

(1) 'Where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;'

(2) 'Where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and decision is in favor of such their validity;'

(3) 'Where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clasue of the said Constitution, treaty, statute or commission.'

By the Act of February 5, 1867, c. 28, 14 Stat. 385 (28 USCA § 344), that section was re-enacted-the first and second provisions without change, and the third to read as follows:

(3) 'Where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority.'

The three provisions-the third as so amended-were carried into section 709 of the Revised Statutes of 1873 and into section 237 of the Judicial Code of 1911. By the Act of September 6, 1916, c. 448, 39 Stat. 726 (28 USCA § 344), the third provision was eliminated so far as a review on writ of error is 1925, supra, the first and second provisions 1925 supra, the first and second provisions were amended by omitting from both the with that change were re-enacted in section 237(a). 237(a).

In order that the second provision-the material one in this case-and the change made therein may be accurately in mind, we now quote the provision in both its original and its amended from—

'(Act 1789) where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity.'

'(Act 1925) where is drawn, in question the validity of a statute of any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity.'

It will be seen that the phrase 'a statute of any state' has been in the provision from the time of its original enactment, and that this phrase was retained in the...