31

2. CONSTITUTIONAL LAW298(2) -DUE PROCESS-RATES FIXED BY COMMISSION-DETERMINATION OF REASONABLENESS.

Laws of a state, construed as precluding inquiry into reasonableness of rates, fixed by its Railroad Commission, in action to recover charges in excess thereof, made and collected by a carrier, are not violative of Const. U. S. Amend. 14, where opportunity to have validity of the ordered rates judicially determined in suit for that purpose had been provided and availed of by the carrier, resulting in sustaining thereof.

In Error to the Supreme Court of the State of Michigan.

Separate actions by the Fletcher Paper

Company, by the Island Mills Lumber Company, by the Churchill Lumber Company, by the Richardson Lumber Company, and by the Michigan Veneer Company, all against the Detroit & Mackinac Railway Company. Judgments for plaintiffs were affirmed by the Supreme Court of Michigan (164 N. W. 528), and defendant brings error. Affirmed.

Messrs. James McNamara and Fred A. Baker, both of Detroit, Mich., for plaintiff in

error.

Messrs. Edward S. Clark, of Bay City, Mich., and Irwin S. Canfield, of Alpena, Mich., for defendants in error.

*Mr. Justice HOLMES delivered the opinion of the Court.

These five suits were actions of assumpsit brought to recover the difference between the rates fixed by the Michigan Railroad Commission on logs carried wholly within the

cannot deal. Such are whether the orders of the Commission were in force pending an injunction and before the defendant railroad had fixed rates in pursuance of a mandate of the State Court; whether the State laws permit an action to be maintained without an order of reparation by the Commission; and whether the statutes purport to make the order fixing the rates conclusive in the present suits. These questions depend upon the construction of the State laws, as to which, upon writs of error to the State Court that Court has the last word. Its power would not be diminished if similar provisions in an Act of Congress had been differently construed by this Court. The only question properly before us is whether the statutes as construed run against the Fourteenth Amendment of the Constitution of the United States. It is argued that they do, a if, as was held, they preclude an inquiry in these proceedings into the confiscatory character of the rates in present circumstances. But the defendant had had its chance to have the validity of the rates judicially determined in a suit for that purpose and had used it. Detroit & Mackinac Ry. Co. v. Michigan Railroad Commission, 235 U. S. 402, 35 Sup. Ct. 126, 59 L. Ed. 288. There is nothing to hinder a State from providing that after a judicial inquiry into the validity of such an order it shall be binding upon the parties until changed. The defendant was

free to apply to the Commission.

A milling-in-transit rate allowing the de

fendant to add fifty cents a thousand feet on lumber if, instead of being carried on, after it was manufactured, on the through rate, the product was not reshipped by the defendant's line, was held to be permitted by

the statute. It is said that this would be contrary to the interstate commerce act if these cases involved interstate commerce, which they do not. We see no question concerning it that requires to be dealt with here. Judgment affirmed.

State, from points on the defendant's (the UNITED STATES 111 - CLAIMS - ASSIGN

MENT.

Rev. St. § 3477 (Comp. St. 1916, § 6383), does not prohibit claimant from assigning a claim against the United States.

plaintiff in error's) road to Alpena, and the
higher rates that the defendant actually
charged. The plaintiffs got judgments which
were affirmed by the Supreme Court of Michi-
gan, 164 N. W. 528, and the cases are brought
here upon lengthy assignments of error. The of Mississippi.
plaintiffs now move to dismiss or affirm.
We are of opinion that the judgments should
be affirmed.

[1, 2] Most of the assignments of error concern questions of local law with which we

In Error to the Supreme Court of the State

Suit by J. F. Lay and others against R. C. Lay and others. Judgment for plaintiffs was reversed by the Supreme Court of Mississippi (79 South. 291), and plaintiffs bring error. On motion to dismiss or affirm. Affirmed.

☑☑ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Mr. John C. Bryson, of Vicksburg, Miss., [tion were required, the legal effect of the words, for plaintiff in error.

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#reciting that the Cincinnati *Southern Rail- | to supply a roadbed for a trunk line, neces

way now is controlled by a competitor of the sitating considerable expenditure on the part Western & Atlantic road and that the West- of the grantee, confirms, if confirmation were

ern & Atlantic needs the space, Georgia undertook to repeal the former Act and to treat it as giving a license only, that the State was free to revoke. The defendants say that the words "there is hereby granted to the Trustees of the Cincinnati Southern Railway, for the use of said railway, the use of that portion of the right of way of the Western & Atlantic Railroad" &c., grant a right of way in fee.

[1-5] The Ohio statute under which the Cincinnati Southern Railway was constructed by the City of Cincinnati provided for a board of trustees to be appointed and kept filled by the Superior Court of the city, to have control of the fund raised by the city, and to acquire and hold all the necessary real and personal property and franchises either in Ohio or in any other State into which the line of railroad should extend. Therefore the grant to the trustees was the proper form for a grant in effect to the Railway, as it was styled in the title of the Geor

required, the legal effect of the words unexplained. City of Louisville v. Cumberiand Telephone & Telegraph Co., 224 U. S. 649, 663, 32 Sup. Ct. 572, 56 L. Ed. 934; Llanelly Ry. & Dock Co. v. London & Northwestern Ry. Co., L. R. 8 Ch. 942, 950; Great Northern Ry. Co. v. Manchester, Sheffield & Lincolnshire Ry. Co., 5 De G. & Sm. 138.

[6,7] We think it unnecessary to refer to the language in detail beyond saying that there is nothing in the statute to suggest an intent to limit the scope of the grant and that such expressions as "provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right of way shall always be the same as that of the Western & Atlantic Railroad," further confirms our interpretation, as does also the requirement of the consent of the lessees "as to the term of their lease," since those words imply that that grant is of something more that does

gia act, or to the city if the city was in not require their assent. Elaborate discusstrictness the cestui que trust. No other sion of the circumstances seems to us sufacts of much importance appear. Considera- perfluous. But it is necessary to mention tions are urged on behalf of Georgia to show the objection that by the Constitution of that the motives for a perpetual grant were Georgia (article 7, § 16) the general assemweak, but nothing that affects the construc- bly was forbidden to "grant any donation tion of the words used or that shows that or gratuity in favor of any person, corporathey are not to be given their ordinary mean- tion or association," and that there was no ing, as indeed the argument for the plaintiff consideration for this grant. Even if the agrees. But if that be true, cadit quæstio. contemplated and invited change of position A grant of the use of a right of way is the grant of a right of way in the ordinary meaning of words, and a grant of a right of way to a corporation or to perpetual trustees holding for the corporate uses does not need words of succession to be perpetual. The consideration, we are of the opinion that

words "and its successors" or "in fee" would

not enlarge the content of a grant to a corporation. Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 66, 33 Sup. Ct. 988, 57 L. Ed. 1389; Detroit v. De

troit Citizens' Street Ry. Co., 184 U. S. 368,

395, 22 Sup. Ct. 410, 46 L. Ed. 592; *Great Northern Ry. Co. v. Manchester, Sheffield & Lincolnshire Ry. Co., 5 De G. & Sm. 138, 146. If a grantor wishes to limit the effect of words sufficient on their face to convey a fee it should express the limitation in the instrument. The purpose of the grant in this case,

to the track of the Western & Atlantic Railroad to leave the distance between the centers of tracks fourteen feet, and between the nearest rails of the two railroads nine feet: Provided always, that this grant is subject to the consent and approval of the lessees of the Western & Atlantic Railroad as to the term of their lease: Provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right-of-way shall always be the same as that of the Western & Atlantic Railroad.

Sec. 2. Be it further enacted, That all Acts and parts of Acts inconsistent with this Act are hereby repealed.

on the part of the Cincinnati & Southern Railway and the benefit to the State expressly contemplated as ensuing from it were not the conventional inducement of

the grant, and so, were not technically a

the grant was not a gratuity within the

meaning of the State Constitution. A con-* veyance in aid of a public purpose from which great benefits are expected is not within the class of evils that the Constitu

tion intended to prevent and in our opinion

is not within the meaning of the word as it naturally would be understood. We deem further argument unnecessary to establish that the State of Georgia made a grant which it cannot now revoke.

COURTS399(2)-ERROR TO STATE COURT-
FEDERAL QUESTION-JURISDICTION.

Writ of error to state court, based on a federal question being involved, because of a contract authorizing sale of land belonging to the United States covered by an inchoate home

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

88

stead entry, will be dismissed; the state court, | decision of which by state Supreme Court is con

on sufficient evidence, expressly finding that such land was not included in the contract.

In Error to the Supreme Court of the State

trolling with federal courts; no federal right being involved.

8. EMINENT DOMAIN 70-AMENDMENTS OF FEDERAL CONSTITUTION-APPLICABILITY TO STATE.

As against act by the state, one cannot claim that he is deprived of property without compensation, in violation of Const. U. S. Amend. 5. 4. COURTS 391(3) - ERROR TO STATE COURT -FEDERAL QUESTION-JURISDICTION.

No federal question being presented by the record, writ of error to state court will be dismissed by the court sua sponte.

In Error to the Supreme Court of the State of Ohio.

Action by Albert Palmer and others against the State of Ohio. Judgment dismissing the petition was affirmed by the Supreme Court of the state (96 Ohio St. 513, 118 N. Ε. 102), and plaintiffs bring error. Dismissed.

Messrs. John G. Romer, of St. Henry, Ohio, and T. F. Raudabaugh, of Celina, Ohio, for plaintiffs in error.

Messrs. Clarence D. Laylin and Frank

Davis, Jr., both of Columbus, Ohio, for the

State of Ohio.

The case is here in reliance upon a federal question based upon the assumption that the authority to sell included land belonging to the United States covered by an inchoate homestead entry. But the court below expressly *found that such land was not includ- | ion of the Court. ed in the contract, hence the sole basis for the asserted federal question disappears.

And this result is not changed by considering, to the extent that it is our duty to do so, the question of fact upon which the existence of the alleged federal question depends. Northern Pac. R. R. Co. v. North Dakota, 236 U. S. 585, 593, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Creswill v. Grand Lodge K. P., 225 U. S. 246, 261, 32 Sup. Ct. 822, 56 L. Ed. 1074; Kansas City Southern R. R. Co. v. C. H. Albers Commission Co., 223 U. S. 573, 591, 32 Sup. Ct. 316, 56 L. Ed. 556. We so conclude because the result of discharging that duty leaves us convinced that the finding below was adequately sustained; indeed, that the record makes it clear that the alleged ground for the federal question was a mere afterthought. The case, therefore, must be and is Dismissed for want of jurisdiction.

(248 U. S. 32)

PALMER et al. v. STATE OF OHIO. (Submitted on Motion to Affirm Oct. 28, 1918. Decided Nov. 18, 1918.)

No. 260.

1. STATES191 (1) - ACTION BY INDIVIDUAL -SOURCE OF RIGHTт.

Right of individuals to sue a state can come only from consent of the state, and not from Constitution or laws of United States.

2. COURTS366(1)-FEDERAL COURTS-FOLLOWING DECISION OF STATE COURT-LOCAL

LAW.

Whether state Constitution gave consent of state to be sued is a question of local state law,

Mr. Justice CLARKE delivered the opin

The plaintiffs in error sued the state of Ohio for damages for flooding lands by elevating the spillway of a state-maintained dam. The Supreme Court of the state affirmed the action of the lower courts in dismissing the petition on the ground that the state had not consented so to be sued, and we are asked to review this decision.

The plaintiffs in error agree, as they must, that their suit cannot be maintained without the consent of the state, but they claim that such consent was given in an amendment to section 16 of article 1 of the state Constitution, adopted in 1912, which reads: "Suits may be brought against the state, in such courts and in such manner, as may be provided by law."

The state Supreme Court held that this amendment is not self-executing, and that the General Assembly of the state having failed to designate the courts and the manner in which such suits might be brought, effective consent to sue had not been given. This decision, the plaintiffs in error claim, vaguely and indefinitely, somehow deprives them of their property without due process of law, in *violation of the Fourteenth Amendment to the Constitution of the United States.

[1, 2] The right of individuals to sue a state, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state. Beers v. State of Arkansas, 20 How. 527, 15 L. Ed. 991; Railroad Co. v. Tennessee, 101 U. S. 337, 25 L. Ed. 960; Hans v. Louisiana, 134

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842. [3] The further claim that the plaintiffs Whether Ohio gave the required consent in error are deprived of their property withmust be determined by the construction to be given to the constitutional amendment quoted, and this is a question of local state

out compensation in violation of the Fifth Amendment to the Constitution of the United States, is palpably groundless. Barron

8 L. Ed 672; Brown v. New Jersey, 175 U. S. 172, 174, 20 Sup. Ct. 77, 44 L. Ed. 119.

law, as to which the decision of the state v. Mayor, etc., of Baltimore, 7 Pet. 243, 250,

Supreme Court is controlling with this court, no federal right being involved. Elmendorf v. Taylor, 10 Wheat. 152, 159, 6 L. Ed. 289; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116, 33 Sup. Ct. 967, 57 L. Ed. 1410; Memphis Street Railway Co. v. Moore, 243 U. S. 299, 301, 37 Sup. Ct. 273, 61 L. Ed. 733. 39 SUP.CT.-2

[4] No federal question being presented by the record the motion to affirm is denied and this court sua sponte, dismisses the writ of error for want of jurisdiction. Dismissed.