884
FEDERAL REPORTER.
sequent to the water-works charter. The case was carried by writ of error to the supreme court of the United States, and there dismissed for want'of jurisdiction;, the court deciding that DO federal question was involved, the right of the city of New Orleans to grant the license complained of being wholly a question to be decided under Louisiana law. See 8 Sup. Ct. Rep. 741. The decision of the supreme court of the state, was :rendered in 1884. In 1885 the precise question was before the sup,reme court of the United States in the case of Water- Works v. Rivers, and was then decided in favor of the water-works company, the court holding that an exclusive franchise granted to supply water to the inhabitants of pipes and mains laid through the public of a luunicipality by streets is violated by a grant to an individuaUn the municipality of the right to supply his premises with .water by means of pipes so laid. Although the case of the Water- Works. Co. v. Refinery 00. was then pending on a writ of error, and the counsel for the refining company submitted a brief in the Rivers Case, in the decision no reference whatever is made to thedeeision of the supreme court of Louisiana upon this very question, conceded to be not a federal question, but one wholly depending upon local Louisiana law. See Water- Works Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. Rep. 273. The question is thus squarely presented whether, in a matter involving solely Louisiana law, where no property rights under former decisions are involved, this court should follow the decision of the highest court of the state or the decision of the supreme court ofthe United States. This same question was presented to the supreme court of the United States in the case of Fairfield v. County of GaUatin, 100 U. S. 47. In 1874, in the case of Rnilroad Co. v. Pinckney, 74 Ill. 277, the supreme court of the state of Illinois gave a certain construction to a provision of the constitution of the state. About one year afterwards, in Town of C0ncord v.Portsmouth, 92 U. S. 625, the same constitutional provision came before the supreme court of the United States, and received a contrary construction, the case of Railroad 0'0. v. Pinckney not being called to the attention of the court. In Fairfield v. County of GaUatin, supra, the same question was again brought before the supreme court of the United States, . the defendant in error relying upon, and the court'below having followed, Town oj Concord v. PorUJmouth, supra, and it was then held, reversing the circuit conrt, and citing POlk'8 Le88ee v. W'endal,9 Cranch, 87; Ne8mith v. Sheldon,.7 How. 812; Walker.v. Commissioners, 17 Wall. 648; Elmendorf v. Taylor, 10 Wheat. 152; Green v. Neal'8 Le88ee, 6 Pet. 291; LeffingweU v. Warren, 2 Black, 599; Sumner v. Hick8, Id.532j OlcoU v. Supervisors, 16 Wall. 678; and State Rai11'oad Tax OaSe8, 92 U. S. 575,-that it is the g-eneral rule of decision to follow and adopt the decisions of the state courts in the construction of their own constitution and statutes when that construotion has been settled by the decisions of its highest tribunal; and that this rule of decision is ,to be followed even where the supreme court, of the United States has given a different construction to the state law, provided no rights are affected which have been acquired under their former decisions. See,wso, Suydam v. Williamson, 24 How. 427. To
NEW ORLEANS
V. SOUTHERl." BREWING CO.
,S3£?
the above thertl are exceptions, i. e., where rights of property have been acquirtjd under forn;ler decisions of either the state or fed. eral courts; where on the same transactions the federal court has first pllssed, and the decisiqns 01 the state court relied upon do not meet the independeIltjudgment ,of the.supreme court of the United States; and when general questions of commercial law are involved. See Pease v. Peck, 18 How. 595; MO'J"gan v. Curtenius, 20 How. 1; Thompson v. Perrine, 103 U. S. 606; Douglass v. County of Pike, 101 U. S. 677; Oates v. Bank, 100 U. S. 239; Burgess v. Seligman, 107 U. S. 20,2 Sup. Ct. Rep. 10. In Pease v. Peck, and iI}. the last cited case, it is intimated that the general rule should lose sOll}.e of its l'igidity in cases involving sies between citizens of different states. In the cases now under consideration the parties complainant and c;lt>fendant are corporations deriving life entirely from the laws of Louisiana, and these .causes are apparently brought in this court as arising under the constitution of the United $.tates, when the real question in issue is One not federal,but arising solely in tela.tion to the proper construction to be given to Louisiana laws, and where, if it is not the sole object, the main purpose is to escape the construction given by the suprerp,e court of Louisiana to the laws of the state. Heretofore, in these cases on mO"'. tions for injunctions pendente lite, where the main question argued was whether the complainant's monopoly had been extinguished by the fact that the complainant had procured and accepted remedial legislation under the present constitution of the state, (see Const. 1879, arts. 234,.258,) and considering that under the charter to complainant the city was limited in granting permits to persons actually contiguous to the river, and that such contiguity was a question for the court to determine, we have granted temporary injunctions in those cases followed the Rivers Case, where more than public ground separated the parties from the river: But now it seems that in the courts the question of contiguity cuts no particular figure, but is decided by the city council when they grant or refuse lj. permit. In the Rivers Case, as interpreted by the supreme court in Water- Works Co. v. Refinery Co., supra, it was not in and in the supreme court of the state the defense of contiguity was wholly ignored. It can easily be inferred from a close examination of the Rivers Case that the only questions there intended to be decided were whether the nopoly granted complainant in its charter was abrogated by the state constitution, and whether the city of New Orleans could make the grant to Rivers by reason of such abrogation; and that the question whether, under a fair construction of complainant's charter and the general laws of the state, the city had the right to grant a license to a citizen to lay pipes to the river to supply himself with water for his private needs, was not at all considered. In a matter so important to the public; and where the nction of the city council of New Orleans cannot be restrained, uniformity in the jurisprudence which determines the value of the permits 01' licenses granted is very desirable, and the rights of the party who receives a license should not wholly depend upon the selection made by the water-works company of the court (state or federal) to hear the cause.
886
This desirable uniformity is better attained by following the long line of decisions of the supreme court of the United States declaring that the federal courts should adopt and follow the decisions of the highest court of the state in the construction of its own constitution and statutes, than in following one decision of the supreme court on what is now conceded not to be a fede.ral question. As these cases are now presented to the court, and upon final hearing, I am of the .opinion that decrees should go for the defendants. Bn.LINGs, J., (dissenting.) Complainant submits as his case that by the legislative action of the state the obligation of his contract is impaired. In such a case I understand the supreme court of the United States recognizes it as the.constitutional mandate that that court shall by its own judgment interpret the contract, and decide as to its being impaired. This, therefore, is not a case where the construction of a charter by the court of last resort of a state'is necessarily a part of the charter, and conclusively binding. The federal court must still measure the obligation and the effect of the hostile legislation. Jefferson Branch Bank v. Skelly, 1 Black, 436, 443. In the case of Water- Works Co. v. Rivers, 115 U. S. .R. 674,681,6 Sup. Ct. Rep. 273, the supreme court have construed this charter in respect to the point here involved While I agree with the circuit judge that the construction by the state supreme court is contrary to that by the United States supreme court in the Rivera Case, and that with reference to every other class of cases the construction of a charter by the state court of last resort would be obligatory upon the United States supreme court, and upon this court, I nevertheless think that the views of the supreme court in the Rivera Case should still control the action of this court as to the meaning of the charter already declared by it, and that the complainant should have a decree perpetuating the injunction. As to the meaning of the expression "contiguous persons." Contiguousmay have so broad a meaning as to make it proper to speak of the entire city of New Orleans as contiguous to the Mississippi river. This is not the meaning. The use oithe word com pels us to atop somewhere. is no middle point. I think the word was meant, in the charter, to include only the proprietors who are actually riparian; that is, only those proprietors whose land by actual contact adjoins the river.
l'IERSON V. l'HILIl'S. \
837
PIERSON
1).
PHILIPS
et al.
(Oircuit Oourt, E. D. Texas. December 18, 1888.) COURTS-FEDERAL JURISDICTION-UNITED STATES MARSHAL-ACTION ON BOND.
The circuit court of the United States has not original jurisdiction in suits on United States marshal's bonds, where the amount in controversy does not exceed $500. '
At Law. Action on United States marshal's bond. Waul &- Walker, for· plaintiff. S. 0. Hanscomb, for defendants. PARDEE, J. This suit was instituted June 23,1886, and is against the late United States marshal and his sureties on his official bond to reCOVE:f the sum of $291.76, alleged damages for the breach of said bond, and the further sum of $9.50 costs, with interest on the whole at 8 per cent. per annum from June 8, 1885. It is then a suit of civil nature at common law arising under the laws of the United States, (see Feibelman v. Packard, 109 U. S. 421, 3 Sup. Ct. Rep. 289,) in which the sum involved does not exceed $500. The proof submitted makes out the plaintiff's case, and he is entitled to the judgment asked if the circuit court has jurisdiction of the cause. When the suit was brought the act of March 3, 1875, entitled" An act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes," was in force. and that act seems to be. the first statute of the United States that seeks to give to the circuit court original jurisdiction of suits of a civil nature arising under the constitution and of the United States, regardless of the citizenship of the parties. In that act the only limitation on the jurisdiction in .'mch cases is that the matter in dispute shall exceed the sum or value of $500, exclusive of costs. There is no special c5r other act that in terms gives the circuit court jurisdiction in suits on United States marshal's bonds. The plaintiff contends that in suits on marshal's bonds the jurisdiction of the circuit court attaches, irrespective of the amount involved, by virtue of the act of congress of April 10, 1806, now found in section 784, Revised Statutes, to the effect that, "in case of a breach of the tion of a marshal's bond, any person thereby injured may institute in his own name and for hili sale use a suit on said bond, and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form," and relies upon a line o{ decisions rendered prior to the jurisdiction act of 1875. See Wetmore' v. Rice, 1 Biss. 237; U. S. v. Davidson, Id. 433; Adler v. Newcomb, 2 Dill. 45, and the number of such cases may be largely increased. The theory seems to have been as stated by Judge TREAT in Adler v. Newcornb, that the federal courts have jurisdiction, because the act of 1806 giving the right to a party injured by breach of the bond to sue thereon in his own name" puts such party in the place of the United States, and