upon which to predicate an issue of bonds. The election resulted in the imposition of the tax.

It was not intended nor has it ever been intended, nor was it possible nor is it possible, to give any of the benefits of the drainage scheme to Weeks Island or to the salt deposit therein, directly or indirectly, its inclusion in the district being solely and only for the purpose of deriving revenue therefrom for the special benefit of the other lands subject to be improved by drainage, without any benefit to plaintiff or its property whatever. The island is the highest assessed piece of property in the district and has never received one single cent of benefit from the drainage system constructed and maintained in such district, and never can or will in the future receive any benefit whatever from the system.

Plaintiff has uniformly for the reasons detailed refused to pay the tax, and at no time prior to this year has an effort been made to collect the same, plaintiff having based its refusal to pay on its constitutional rights. But at the instance of the commissioners of the district the sheriff and ex-officio tax collector of Iberia Parish has demanded the tax on the island and its salt mine and is about to advertise the property as delinquent for the period of four years, aggregating $2,000 with the addition of the penalties provided by law.

The inclusion of the island within the district is charged to be an unconstitutional usurpation of authority and an effort to take plaintiff's property without due process of law. A like charge is made as to the assessment of the tax and its collection.

There is no doubt that a Federal right was asserted. Indeed, plaintiff was at pains, it says, "not to invoke for its protection any provision of the Constitution and laws of the State of Louisiana; not to make any attack upon any law of the State of Louisiana or of any of its subdivisions." And, further, the pleadings "were deliber

ately cast in this form so as to exclude every question of local or state law and to compel the consideration and decision of the Federal question only.'

But notwithstanding the studied effort so made and declared, defendants contend that plaintiff missed its purpose and that a Federal question was neither presented to the courts below nor decided by them, and a motion is made to dismiss. It is said that "under the law of Louisiana the action of the Legislative body (the Police Jury), in the exercise of its discretion as to what property shall be included in a Drainage District, will not be inquired into by the Court, except upon a special averment of fraud which is not pleaded." And such decision, it is further contended, was a decision upon the state law and presents no Federal question, the statute of the State not being attacked.

We cannot concur in the contention. It is true the law of the State as written is not attacked, but the law as administered and justified by the Supreme Court of the State is attacked and it is asserted to be a violation of the Constitution of the United States. The question presented is Federal and the motion to dismiss is denied. And the considerations that move a denial of the motion move a decision of the merits of the question.

The charge is that plaintiff's property was included in the district not in the exercise of "legal legislative discretion," not that the scheme of drainage would inure to the benefit of the property, even indirectly, but with the predetermined "purpose of deriving revenues to the end of granting a special benefit to the other lands subject to be improved by drainage, without any benefit" to plaintiff "or its property whatever," present or prospective.

Nothing could be more arbitrary if drainage alone be regarded. But there may be other purposes, defendants say, and, besides, that the benefit to the property need not be direct or immediate; it may be indirect, such as might

accrue by reason of the general benefits derived by the surrounding territory. But such benefit is excluded by the averments, and it certainly cannot be said that the elevated land of Weeks Island could be a receptacle for stagnant water or would be otherwise a menace to health if not included within the district or would defeat the purpose of the law, which seems to have been the ground of decision in George v. Sheriff, 45 La. An. 1232.

The case, therefore, is within the limitation of the power of the State as laid down in Houck v. Little River Drainage District, ante, p. 254, which cites Norwood v. Baker, 172 U. S. 269, and retains its principle. It has not the features which determined French v. Barber Asphalt Paving Co., 181 U. S. 324, and the cases which have followed that case, and Wagner v. Baltimore, ante, p. 207, decided coincidently with Houck v. Drainage District, and cited in the latter.

It is to be remembered that a drainage district has the special purpose of the improvement of particular property and when it is so formed to include property which is not and cannot be benefited directly or indirectly, including it only that it may pay for the benefit to other property, there is an abuse of power and an act of confiscation. Wagner v. Baltimore, ante, p. 207. We are not dealing with motives alone but as well with their resultant action; we are not dealing with disputable grounds of discretion or disputable degrees of benefit, but with an exercise of power determined by considerations not of the improvement of plaintiff's property but solely of the improvement of the property of others-power, therefore, arbitrarily exerted, imposing a burden without a compensating advantage of any kind.

Therefore, the judgment of the Supreme Court of Louisiana is reversed and the case remanded for further proceedings not inconsistent with this opinion.

So ordered.

Syllabus.

239 U.S.

NORTHWESTERN LAUNDRY v. CITY OF DES MOINES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA.

No. 121. Argued December 9, 1915. Decided January 10, 1916.

Where the decree of the District Court is a general one, and there is no attempt to make separate issue on the question of jurisdiction, but the constitutional question is the basis of appeal to this court, the appeal brings up the whole case.

Where no state statute is shown giving an adequate remedy at law to

one endeavoring to enjoin enforcement of an ordinance, this court must deal with the questions both state and Federal as they appear on the face of the bill.

A State may, by direct legislation or through authorized municipalities, declare the emission of dense smoke in cities or populous neighborhoods a nuisance and restrain it; and regulations to that effect, if not arbitrary, are not unconstitutional under the due process clause of the Fourteenth Amendment even though they affect the use of property or subject the owner to expense in complying with their

terms.

Whether a statute, which repeals a former statute but reënacts the identical matter, affects the validity of ordinances established under the earlier statute, is a state matter.

The state courts not having passed upon the question of whether the ordinance involved in this case is in excess of the legislative grant, this court finds that it is not, and also finds that the Smoke Abatement Ordinance of Des Moines, Iowa, is not invalid under the state statute.

An ordinance, otherwise valid, which applies equally to all coming within its terms is not unconstitutional as denying equal protection of the law if there is reasonable basis for the classification, even though other businesses not affected might have been included within its scope.

The fact that a state police statute includes certain municipalities and omits others does not render it unconstitutional as denying equal protection of the law.

The Des Moines Smoke Abatement Ordinance is not unconstitutional

239 U. S.

Argument for Appellant.

under the due process or equal protection provision of the Fourteenth Amendment; nor is it in excess of the powers of the city under the existing statutes of the State of Iowa.

THE facts, which involve the constitutionality, under the due process and equal protection provisions of the Fourteenth Amendment, and also the validity under the state laws and Constitution, of the Smoke Abatement Ordinance of the City of Des Moines, Iowa, are stated in the opinion.

Mr. O. M. Brockett, for appellant, submitted:

Injunction lies to restrain enforcement of invalid municipal ordinances, the execution of which injuriously affects private rights. Deems v. Baltimore, 80 Maryland, 164; Mobile v. Louisville R. R., 84 Alabama, 115; Stevens v. St. Mary's School, 143 Illinois, 336; Austin v. Cemetery Assn., 87 Texas, 330; Bear v. Cedar Rapids, 147 Powa, 341.

It is a violation of the Fourteenth Amendment to vest in any officer or body of officers wholly arbitrary and unregulated discretion to grant or withhold licenses to hold and enjoy the natural and lawful rights of property and occupation, as is attempted by provisions of the ordinance complained of. Yick Wo. v. Hopkins, 118 U. S. 359; Richmond v. Dudley, 129 Indiana, 112; Grainger v. Douglass Jockey Club, 148 Fed. Rep. 513.

Prior to the enactment of Chap. 37, cities had no power to declare what should constitute nuisances, or prescribe punishment for their maintenance, nor to bring actions in court for their abatement. Everett v. Council Bluffs, 46 Iowa, 66; Cole v. Kegler, 64 Iowa, 59; Nevada v. Hutchins, 59 Iowa, 506; Knoxville v. C. B. & Q. R. R. Co., 83 Iowa, 636; Chariton v. Barber, 54 Iowa, 306; City of Ottumwa v. Chinn, 75 Iowa, 407.

If the repealing clause, found in § 3 of the act of the thirty-fifth general assembly, in fact repealed the act of the thirty-fourth general assembly, the only authority