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reverse all the decisions of the state courts de- , of which is protected by that instrument termining the force and effect of the contract, against hostile state legislation." whether founded on a statute, or general rules And to come within this exception the conof law, alleged to be violated by the obnoxious struction of the state Constitution and laws statute, and thus subvert the entire policy of the must have been so firmly established as to constate upon the subject-matter of the controver- stitute a rule of property. Louisville & N. R. sy. And it would follow that the construction of Co. v. Palmes, 109 U. S. 244, 27 L. ed. 922, 3 all contracts made under state laws would be Sup. Ct. Rep. 193. brought within the overruling power of the Fed- And the Federal Supreme Court will not be eral government, whenever a state might think bound by a state decision declaring that an irfit to pass any statute in relation to such con- revocable contract was created by a state stattracts. The fallacy and danger of such a doc- ute which is directly in confict with the settled trine appear to be obvious."

adjudications of the former court, and was not A decision of the highest court of a state made in time to enter into the consideration of that a state statute establishing a charitable the parties in forming the contract. Citizens' association did not affect pre-existing provisions Sav. Bank v. Owensboro, 173 U. S. 636, 43 L. of the Code against the keeping of a gaming ta- ed. 840, 19 Sup. Ct. Rep. 571. ble is, however, conclusive on the Federal Supreme Court in reviewing a later judgment of

b. Full faith and credit. the state court in a case in which the statute

Where the Federal Supreme Court is reviewwas claimed to constitute a contract, and that ing the judgment of the state court on the a later repealing act effected an impairment ground that full faith and credit were not acof the obligation of such contract, and was,

corded the judicial proceedings of another state therefore, void. Aicardi v. Alabama, 19 Wall. it must judge for itself the true nature and ef635, 22 L. ed. 215. See also Phalen v. Vir- fect of the order relied on. Great Western ginia, 8 How. 163, 12 L. ed. 1030, supra, II. b. Teieg. Co. v. Purdy, 162 U. S. 329, 40 L. ed.

And the rule adopted by the Federal Supreme 986, 16 Sup. Ct. Rep. 810. Court on this point is subject to the qualifi.

And where the state court refused to enforce cation that the settled construction given by a judgment of a court of a sister state enforcthe state court of last resort to its Constituing the statutory liability of a corporate dition and laws must be taken as correct so far rector, because it was of the opinion that the as contracts entered into on the faith of such

statute was a penal one, the Federal Supreme construction are concerned. Louisiana v. Pils- Court is not bound by the construction given bury, 105 U. S. 278, 26 L. ed. 1090; Warbur

to such statute by the courts of the state in ton v. White, 176 U. S. 484, 44 L. ed. 555, 20

which it was enacted, but must determine for Sup. Ct. Rep. 404.

itself whether the original cause of action was However, when reviewing the final judgment | penal in the international sense. Huntington of a state court upholding a state statute pro

v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. hibiting lotteries, which was alleged to violate

Ct. Rep. 224. “The case in this regard," the contract clause of the Federal Constitution, said Mr. Justice Gray, "is analogous to one the Supreme Court of the United States, in arising under the clause of the Constitution Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. which forbids a state to pass any law impair. 553, 18 Sup. Ct. Rep. 199, refused to be bound ing the obligation of contracts, in which, if by prior decisions of the state court to the ef. the highest court of a state decides nothing fect that vested rights could be acquired in a

but the original construction and obligation of lottery franchise by an agreement with the

a contract, this court has no jurisdiction to grantee of such franchise. The court said:

review its decision; but, if the state court *The defendant insists that his rights, having gives effect to a subsequent law which is imbeen acquired when these decisions of the high-pugned as impairing the obligation of a conest courts of Kentucky were in full force, tract, this court has power, in order to detershould be protected according to the law of the mine whether any contract has been impaired, state as it was adjudged to be when those

to decide for itself what the true construction rights attached. But is this court required to

of the contract is. New Orleans Waterworks accept the principles announced by the state

Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, court as to the extent to which the contract 38, 31 L. ed. 607, 614, 8 Sup. Ct. Rep. 741. clause of the Federal Constitution restricts So, if the state court, in an action to enforce the powers of the state legislatures? Clearly the original liability under the law of another not. The defendant invokes the jurisdiction of state, passes upon the nature of that liability this court upon the ground that the rights de and nothing else, this court cannot review its nied to him by the final judgment of the high-decision ; but, if the state court declines to give est court of Kentucky, and which the state full faith and credit to a judgment of another seeks to prevent him from exercising, were ac- state, because of its opinion as to the nature quired under an agreement that constituted of the cause of action on which the judgment a contract within the meaning of the Federal was recovered, this court, in determining Constitution. This contention is disputed by whether full faith and credit have been given the state. So that the issue presented makes to that judgment, must decide for itself the it necessary to inquire whether that which the nature of the original liability." defendant asserts to be a contract was a con- The effect to be given by courts of one state tract of the class to which the Constitution to provisions for bond, sequestration, receiver, of the United States refers. This court must and injunction, made in a decree for alimony determine, --indeed, it cannot, consistently with of a court of another state, depends on local its duty, refuse to determine, -upon its own re. statutes and practice of that state, and cannot sponsibility, in each case as it arises, whether be inquired into by the Supreme Court of the that which a party seeks to have protected un- United States in reviewing a judgment of a der the contract clause of the Constitution of state court which is claimed to have denied the United States is a contract the obligation full faith and credit to a judgment of a court of another state. Lynde v. Lynde, 181 U. S. writ of error to a state court so far as to in183, 45 L. ed. 810, 21 Sup. Ct. Rep. 555.

quire whether that court prescribed any rule

of law in disregard of the owner's right to just c. Due process of law.

compensation. But it is not every error occur

ring in a state court in the administration of The doctrine of the cases holding that it is its law concerning condemnation of private for the state courts alone to construe their own property for public purposes that may be relaws (see supra, II. b) does not require the viewed, and the court is not called upon to Supreme Court of the United States, on writ search the record simply to inquire whether of error to a state court, to accept that court's there may or may not be errors in the proceedconstruction of a state statute, or a statute ing. The limit of interference is reached when enácted by the territory before its admission in- it appears that no fundamental rights have to the Union as a state, when the question is been disregarded by the state tribunals. Backwhether such statute provides for the notice us v. Ft. Street Union Depot Co. 169 U. S. required to constitute due process of law. Scott 557, 42 L. ed. 853, 18 Sup. Ct. Rep. 445 ; Chiv. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 cago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, Sup. Ct. Rep. 1108.

41 L. ed. 979, 17 Sup. Ct. Rep. 581. The Federal Supreme Court is no more bound by the state court's construction of the enact.

d. Equal protection of the laws. ment under these conditions than when the question is whether the statute created a con- In Yick Wo v. Hopkins, 118 U. S. 356, 30 tract which has been impaired by a subsequent L. ed. 220, 6 Sup. Ct. Rep. 1064, the question law of the state (see supra, III. a), or whether presented on a writ of error to a state court the original liability created by the statute was was whether due process of law, or the equal such that a judgment upon it had not been giv. protection of the laws, was denied the Chlen due faith and credit in the courts of anoth. nese by proceedings under certain municipal orer state (see supra, III. b). Ibia. “In every dinances providing that it should be unlawful such case" said Mr. Justice Gray, "this court for any person to engage in the laundry busimust decide for itself the true construction of ness in wooden buildings within the corporate the statute."

limits "without having first obtained the conA similar exception was recognized in Hoad- sent of the board of supervisors." The state ley v. San Francisco, 124 U. S. 639, 31 L. ed. court considered these ordinances as vesting 553, 8 Sup. Ct. Rep. 659, where one of the in the board of supervisors a not unusual disquestions involved on a writ of error to a state crétion in granting or withholding their assent court was whether property was taisen without to the use of wooden buildings as laundries, to due process of law by certain state legislation, be exercised in reference to the circumstances The court's first duty, said Mr. Chief Justice of each case, with a view to the protection of Waite, in delivering the opinion it. this case, the public against the dangers of fire. The was to determine whether a prior municipal or- Federal Supreme Court, however, held that the dinance vested any property rights which would power conferred by these ordinances was be taken away if such legislation were adjudged naked and purely arbitrary power, acknowledg. valid. The existence of the right, he said, was ing neither guidance nor restraint. "The deterpart of the Federal question itself. See also mination of the question whether the proceedYick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. ings under these ordinances and in enforcement 220, 6 Sup. Ct. Rep. 1064, infra, III. d.


of them are in conflict with the Constitution Errors of state courts in respect to the de- and laws of the United States," said Mr. Justails of assessments by municipal corporations tice Matthews, in delivering the unanimous for street improvements which are claimed opinion of the court, “necessarily involves the not to furnish due process of law cannot be meaning of the ordinance which, for that purconsidered by the Supreme Court of the United pose, we are required to ascertain and adStates on writ of error to the state court. The judge." only inquiry open is whether sufficient provi- See also Hoadley y. San Francisco, 124 U. sion has been made by law for contesting the s. 639, 31 L. ed. 553, 8 Sup. Ct. Rep. 659 ; assessment by an appropriate proceeding in the Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, ordinary courts of justice. Corry v. Campbell, 14 Sup. Ct. Rep. 1108, supra, III, c. 154 U. S. 629, Appx. and 24 L. ed. 926, 14 Sup. The decision of the supreme court of a state Ct. Rep. 1183.

that it is competent on a new assessment to deOn writ of error to a state court to review termine questions of benefit from the proof, ev. a judgment in an action in the nature of quo en though in so doing a different result would warranto alleged not to constitute due process be reached from that which had been arrived of law the question before the Supreme Court at when a former assessment which has been of the United States is not whether the courts set aside was made, decides merely a local below having jurisdiction of the case and of the question, which cannot be considered in review. parties have followed the law, but whether the ing the judgment of the state court. Lombard law, if foilowed, would have furnished the pro- v. West Chicago Park, 181 U. S. 33, 45 L. ed. tection guaranteed by the Federal Constitution. I 731, 21 Sup. Ct. Rep. 507. The court said : Irregularities and mere errors in the proceed-"The theory lying at the foundation of all the ing must be corrected in the state court. The arguments advanced to show that the court Supreme Court of the United States will only below committed error of a Federal nature is examine the power of the court below to pro- this, and nothing more,—that the equal proteccecd at all. Kennard v. Louisiana, 92 U. S. tion of the laws was denied by the supreme 480, 23 L, ed. 478.

court of Illinois because that court, although Proceedings had in the state court under it treated the assessing ordinance as invalid for state authority for the appropriation of private the purposes of the

assessment, upproperty to public purposes may be examined held that ordinance as valid for

the by the Supreme Court of the United States on second assessment. This but asserts that,


because it is considered that there was in.

IV. Conclusion. consistency in the reasoning by which the supreme court of Illinois sustained its conclusion, The whole merits of the controversy are not therefore the equal protection of the laws was open to consideration by the Federal Supreme denied. If the proposition as thus understood Court because the record in the state courts was held to be sound, as it cannot be, every presents a Federal question which confers jucase decided in the courts of last resort of risdiction of the writ of error. In general onthe several states would be subject to the rely Federal questions, and those so presented visory power of this court, wherever the los: by the record as, if standing alone, would coning party deemed that the reasoning by which fer such jurisdiction, can be considered. Nearthe state court had been led to decide adversely to his rights was inconsistent with the rea- ly, if not quite, all the exceptions will be insoning previously announced by the same court cluded if the general rule be so modified as to in former cases. In thus stating the ultimate permit the review of such questions as are so deduction to which the proposition necessarily interwoven with the Federal question as to leads, we do not wish to be understood as im- require determination in order intelligently to plying that we think the reasoning upon which decide that question. the supreme court of the state of Illinois placed Questions of fact, even if Federal in their na. its decision in this case is amenable to the ture, are excluded from consideration by rea. inconsistency which it is insisted it embodies. son of the distinction between appeals and As that consideration is wholly beyond the pale writs of error which the Federal courts have of our jurisdiction, we have not even ap- consistently observed.

W. W. N. proached its consideration."




Robert GAYLORD, Appt.,

stead v. Camp, 33 Conn. 532, 89 Am. Dec.

221; Fuller v. Chicopee Mfg. Co. 16 Gray, SANITARY DISTRICT OF CHICAGO et al. 43; Pratt v. Lamson, 2 Allen, 275; Lowell

v. Boston, 111 Mass. 454, 15 Am. Rep. 39. (204 Ill. 576.)

The mills acts are interpreted broadly.

Angell, Waters, 6th ed. $ 488. 1. The legislature cannot authorize the

The improvement of navigation is a public condemnation of private property for

use. the erection of public mills and chinery generally, without anything to show

Flazen v. Esscx Co. 12 Cush. 475; Re what is meant by a public mill, or anything Burns, 1.55 N. Y. 25, 49 N. E. 246; Calking to give the public any interest in a mill v. Balduin, 4 Wend. 669, 21 Am. Dec. 168; after it is erected.

Valley City Salt Co. v. Brown, 7 W. Va. 2. Private property cannot be taken 198.

for a private use under a constitutional provision that such property shall not be

If the land of the sanitary district is detaken or damaged for public use without voted to a public use, the proposed use will just compensation.

not interfere with its present use, and there

fore express legislative authority to flow the (October 26, 1903.)

land is not necessary. A PPEAL by petitioner from a judgment 822; Gold v. Pittsburgh,C. C. & St. L. R.CO.

Steele v. Empson, 142 Ind 397, 41 N. E. of the Circuit Court for Will County 153 Ind. 232, 53 N. E. 285; Baltimore & 0. S. dismissing a petition to acquire property by W. R. Co. V. Jackson County, 156 Ind. 260, right of eminent domain. Affirmed.

58 N. E. 837, 59 N. E. 856; St. Louis & C. The facts are stated in the opinion. Mr. Thomas A. Moran, with Mr. N. E. 382; Southern P. R. Co. v. Southern

R. Co. v. Postal Teleg. Co. 173 Ill. 508, 51 Charles A. Munroe, for appellant:

The mills and millers’ act is valid, and California R. Co. 111 Cal. 221, 43 Pac. 602; authorizes the petitioner to acquire all the South Western Teleg. & Teleph. Co. v. Gulf, property described in the petition.

C. & 8. F. R. Co. (Tex. Civ. App.) 52 S. W. Head v. Amosk.eag Mfg.Co. 113 U. S. 9, 106; Postal Teleg. Cable Co. v. Oregon Short 28 L. ed. 859, 5 Sup. Ct. Rep. 441; Olm-Line R. Co. 23 Utah, 474, 90 Am. St. Rep.

705, 65 Pac. 735; Postal Teleg. Cable Co. v. NOTE.—As to dowage of land for mill pur-Oregon Short Line R. Co. 114 Fed. 787. poses, see note to Turner v. Nye, 14 L. R. A.

Whether the power of eminent domain As to what is a public purpose for which the shall be put in motion for any particular water power of a stream may be appropriated purpose, and whether the exigencies of the by eminent domain, see, in this series, Re Barre occasion and the public welfare require or Water Co. 9 L. R. A. 195 ; Avery v. Vermont Electric Co. 59 L. R. A. 817; and Fallsburg justify its exercise, are questions which rest Power & Mfg. Co. v. Alexander, 61 L. R. A. 129. I entirely with the legislature. When the


use is public the necessity or expediency of Com. 439; Angell, Waters, $$ 94, 132; appropriating any particular property is Agawam Canal Co. v. Edwards, 36 Conn. not a subject oi judicial cognizance.

497. 1 Lewis, Em. Dom. 2d ed. $ 238; Schuster Water power is the difference in level bev. Sanitary Dist. 177 Ill. 627, 52 N. E. 855; tween the surface where the stream first Chicago, R. I. & P. R. Co. v. Lake, 71 Ill. touches the land and the surface where it 333; Lake Shore & M. S. R. Co. v. Chi- leaves it. cago & W'. I. R. Co. 97 Ill. 506; Smith v. M'Calmont v. Whitaker, 3 Rawle, 90, 23 Chicago & W. 1. R. Co. 105 Ill. 511; Chicago Am. Dec. 102; Brown v. Bush, 45 Pa. 66; & E. I. R. Co. v. Wiltse, 116, Ill. 449, 6 N. Lawson v. Mowry, 52 Wis 219, 9 N. W. 280. E. 49; National Docks R. Co. v. Central R. Messrs. John P. Wilson and Henry S. Co. 32 N. J. Eq. 755.

Robbins for appellees. The encouragement of mills has always been a favorite object with the legislatures Wilkin, J., delivered the opinion of the of the various states, and, though the reason court: of it may have ceased, the favor of the legis- Appellant filed his petition in the circuit lature continues.

court of Will county, in conformity with the Wolcott Woollen Mfg. Co. v. Upham, 5 eminent domain law of this state, against Pick. 292.

appellee and others, alleging that "he is the Those invested with the power of eminent owner of the bed and banks of the Des domain for a public purpose can make their Plaines river, in sections 20 and 21, townown location according to their own views siip 35 north, range 10 east of the third of what is best or expedient, and their dis- principal meridian, from the south line of cretion cannot be interfered with by the section 16 to the west line of section 20; court.

that he is about to build a public gristmill, 2 Lewis, Em. Dom. 2d ed. § 393.

and also construct other machinery, as well The power to construct the gristmill and as also the improvement of the navigation improve the navigation of the Des Plaines of the Des Plaines river at a point on said river rests on the public use, not on the land described as follows [here follows dedisposition of the water power incidentally scription); that in order to construct, developed

operate, and equip said public gristmill and State, Slingerland Prosecutor, v. Newark, other public machinery, and also the im54 N. J. L. 62, 23 Atl. 129; State v. Eau provement of the navigation of the Des Claire, 40 Wis. 512, 37 Wis. 400.

Plaines river, it is necessary to take and When once tle character of the use is injure private property without the owner's found to be public, the court's inquiry ends, consent; that the parties with whom peand the legislative policy is left supreme, al- titioner is unable to agree as to their just though it appears that private ends will be compensation are the Atchison, Topeka, & advanced by the public user.

Santa Fé Railroad Company

and South Chicago R. Co. v. Dix, 109 Ill. 237; the sanitary district of Chicago.” Then folChicago & E. I. R. Co. v. Wiltse, 116 Ill. 449, lows a description of a particular piece of 6 N. E. 49; St. Louis, I. M. & 8. R. Co. v. land in which the sanitary district has an Petty, 57 Ark. 359, 20 L. R. A. 434, 21 s. interest, with the prayer that a jury be imW. 834; State, De Camp, Prosecutor, v. paneled to assess the damages in pursuance Hibernia Underground R. Co. 47 N. J. L. of the provisions of “An Act in Regard to 43; National Docks R. Co. v. Central R. Mills and Millers,” etc., approved March 2, Co. 32 N. J. Eq. 755.

1872, and in force July 1, 1872. Rev. Stat. T'he defendant cannot question the in- 1874, p. 701, chap. 92. tention of the petitioner to devote the Petitioner was able to agree with all the property to the public use specified in the defendants as to their just compensation, petition.

except the sanitary district of Chicago, State, Slingerlond, Prosecutor, v. Newark, which appeared in the circuit court and 54 N. J. L. 62, 23 Atl. 129; Aurora & C. R. entered its motion to dismiss the petition : Co. v. Lawrenceburgh, 56 Ind. 87; State ex “First, because this statute is unconstiturel. Cofer v. Kingan, 51 Ind. 142; Mills tional, in that it attempts to authorize the Act, $ 5.

taking of private property without the A running stream is quasi of public con- owner's consent for a private, and not a cern like highways and

The public, usc; second, because petitioner seeks right to the use of the water is publici by this proceeding to acquire the property juris.

for a private use, and his claim that he deDruley v. Adam, 102 Ill. 177; Batavia sires to equip and operate a public gristmill Mig. Co. v. Newton Wagon Co. 91 Ill. 230; is a mere subterfuge, under which he seeks Lancey v. Clifford, 54 Me. 496, 92 Am. Dec. to acquire the property for the mere private 561; Pratt v. Lamson, 2 Allen, 287; 3 Kent, purpose of developing an extensive water



power; third, because the property sought in this and many other states of the Union to be taken had been acquired and was used from a very early day,-in Illinois and by appellee for the purpose of carrying off several others while yet under territorial the sewerage of Chicago, and, being thus al- organization,-and are generally known as ready devoted to a public use, could not be “mill acts." They were manifestly passed taken by appellant under this statute, at a time when water power was practically which contemplates only the taking of the only means of running such mills, and private property." Evidence was heard in which, in the then existing condition of sosupport of and against the motion, and an ciety, were a public necessity. As was to order entered sustaining the same, to re- be expected, in view of the demands for verse which appellant prosecutes this ap- mills to grind grain for food and to saw peal.

timber into building material for the erecSection 1 of the statute under which ap- tion of houses, as well as of the fact that pellant claims the right to condemn the land had little or no market value, these property of appellee provides as follows: laws were enforced and acquiesced in for a "When any person or persons owning land great many years, until valuable rights had on one or both sides of any stream or water been acquired under them. Those of course, any part of the bed of which be- Illinois, found in Laws 1819, p. 264 (Rev. longs to such person or persons, shall desire Code 1827, p. 297; Rev. Laws 1833, p. 449), to build or repair any public gristmill, saw. were each limited to water gristmills and mill, or other public mill or machinery, or sawmills, except that of 1819, which was to erect, repair, or increase in height any confined to gristmills. They were dam across such stream or water course, to called in question, so far as we are advised, supply water for any such mill or machin. and certainly not in this court. The later ery, or to improve the navigation of any statutes in other states like the act under such stream or water course for the use of which this proceeding is brought, have atsuch mill or machinery, and it shall be tempted to extend the power to other than necessary to take or injure private property public gristmills, authorizing the taking or without the owner's consent, and the com- damaging of private property for the erecpensation therefor cannot be agreed upon by tion and operation of mills generally; our the parties interested, it shall be lawful for statute, as will appear from the first the person or persons desiring to build or section quoted above, extending to "other repair such mill or machinery, or to erect, public mill or machinery," and "to improve repair, or increase the height of any such the navigation of any such stream or water dam, to cause the damage or compensation course for the use of such millor mato be paid to the owner or other person chinery." When mill acts came to be interested in the property to be taken or questioned, many considerations conspired injured, to be ascertained in the manner to influence the courts to be inclined to provided by law for the taking or damaging sustain them, and hence decisions are to of private property for public use: Pro- be found placing their validity upon various vided,” etc. Other sections provide that grounds. In every instance, so far as we no dam shall be erected to the injury of any are advised, acts providing for condemmill lawfully existing on the same stream, nation proceedings for the benefit of public nor to the injury of the health of the neigh-gristmills have been upheld upon the ground borhood, and the right to the judgment of that taking private property for that purcondemnation shall be availed of within a pose is for a public use, and not for a mere certain time; otherwise to revert, etc. individual purpose; and some of the ablest Section 6 prescribes the duty of the owner courts of last resort have sustained laws or occupier of every public gristmill within authorizing the taking or damaging of land the state, rcquires him to grind the grain for water power for running mills, and brought to his mill in due turn, and author.

factories generally, by water power. See izes him to take certain tolls for different kinds of grain. The next section attaches

cases cited in note to § 180 of Lewis on a penalty for his failure to promptly and Eminent Domain, where the author says: punctually attend to the duties imposed.

“The constitutionality of acts for this purSection 8 makes him accountable for the pose

has been seriously questioned, but safe-keeping of grain received in his mill nevertheless upheld either on the ground for the purpose of being ground, and 9 of authority, or long and general acquiesimposes a penalty for taking illegal tolls. cence and usage, in Iowa, Kansas, Maine, Section 11 relates to dams erected across Minnesota, Nebraska, and Wisconsin. On any river or water course in this state the other hand, such acts have been held to under the authority of any law of this be unconstitutional, as authorizing the state, and has no application to this case. taking of private property for private use,

This class of statutes has been in force' except in case of public mills, in the states

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