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252, was the right to supply the city and its inhabitants with gas for the term granted. There was nothing in the grant of the privilege which gave the company the right to any particular location in the streets; it had the right to use the streets, or such of them as it might require in the prosecution of its business, but in the original grant to the New Orleans Gaslight & Banking Company the pipes were to be laid in the public ways and streets, "having due regard to the public convenience." And in the grant to the Crescent City Gaslight Company the pipes were to be "laid in such manner as to produce the least inconvenience to the city or its inhabitants." In the very terms of the grant there is a recognition that the use of the streets by the gas company was to be in such manner as to least inconvenience the city in such use thereof. Except that the privilege was conferred to use the streets in laying the pipes in some places thereunder, there was nothing in the terms of the grant to indicate the intention of the state to give up its control of the public streets,―certainly not so far as such power might be required by proper regulations to control their use for legitimate purposes connected with the public health and safety. In the case above cited, in which the exclusive right to supply gas was sustained, there was a distinct recognition that the privilege granted was subject to proper regulations in the interest of the public health, morals, and safety. Upon this subject Mr. Justice Harlan, speaking for the court, said (115 U. S. 671, 29 L. ed. 524, 6 Sup. Ct. Rep. 263):
"With reference to the contract in this case it may be said that it is not, in any legal sense, to the prejudice of the public health or the public safety. It is none the less a contract because the manufacture and distribution of gas, when not subjected to proper supervision, may possibly work injury to the public; for the grant of exclusive privileges to the plaintiff does not restrict the power of the state, or of the municipal government of New Orleans acting under authority for that purpose, to establish and enforce regulations which are not inconsistent with the essential rights granted by plaintiff's charter, which may be necessary for the protection of the public against injury, whether arising from the want of due care in the conduct of its business, or from an improper use of the streets in laying gas pipes, or from the failure of the grantee to furnish gas of the required quality and amount. The constitutional prohibition upon state laws impairing the obligation of contracts does not restrict the power of the state to protect the public health, the public morals, or the public safety, as the one
or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a state are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense and to the same extent as are all contracts and all property, whether owned by natural persons or corporations."
The drainage of a city in the interest of the public health and welfare is one of the most important purposes for which the police power can be exercised. The drainage commission, in carrying out this important work, it has been held by the supreme court of the state, is engaged in the execution of the police power of the state. State v. Flower, 49 La. Ann. 1199, 1203, 22 So. 623.
It is admitted that in the exercise of this power there has been no more interference with the property of the gas company than has been necessary to the carrying out of the drainage plan. There is no showing that the value of the property of the gas company has been depreciated, nor that it has suffered any deprivation further than the expense which was rendered necessary by the changing of the location of the pipes to accommodate the work of the drainage commission. The police power, in so far as its exercise is essential to the health of the community, it has been held cannot be contracted away. New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 567, 38 L. ed. 269, 272, 14 Sup. Ct. Rep. 437; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746,751, 28 L. ed. 585, 587, 4 Sup. Ct. Rep. 652; Stone v. Mississippi, 101 U. S. 814, 816, 25 L. ed. 1079. In a large city like New Orleans, situated as it is, and the entrepôt of an extensive commerce coming from many foreign countries, it is of the highest importance that the public health shall be safeguarded by all proper means. It would be unreasonable to suppose that in the grant to the gas company of the right to use the streets in the laying of its pipes it was ever intended to surrender or impair the public right to discharge the duty of conserving the public health. The gas company did not acquire any specific location in the streets; it was content with the general right to use them; and when it located its pipes it was at the risk that they might be, at some future time, disturbed, when the state might require for a necessary public use that changes in location be made.
This right of control seems to be conceded by the learned counsel for the plaintiff in error, in so far as it relates to the right to regulate the use of the surface of the streets, and it is recognized that the users
(197 U. S. 463)
of such surface may be required to adapt | IRON CLIFFS COMPANY, Cleveland Cliffs
Iron Company, William G. Mather, and
NEGAUNEE IRON COMPANY, Edward N.
Error to state court-Federal questionwhen decision not involved.
themselves to regulations made in the exercise of the police power. We see no reason why the same principle should not apply to the subsurface of the streets, which, no less than the surface, is primarily under public control. The need of occupation of the soil beneath the streets in cities is constantly increasing, for the supply of water and light and the construction of systems of A decree of the state court requiring defendsewerage and drainage; and every reason of public policy requires that grants of rights in such subsurface shall be held subject to such reasonable regulation as the public health and safety may require. There is nothing in the grant to the gas company, even if it could legally be done, undertaking to limit the right of the state to establish a system of drainage in the streets. think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare. These views are amply sustained by the au- Argued March 9, 10, 1905. Decided April 3, thorities. National Waterworks Co. v. Kansas, 28 Fed. 921, in which the opinion was
ants to vacate certain lands, and enjoining them from further mining thereon, which was the relief prayed in a bill proceeding on the theory that the corporation holding a mining lease under which defendants justified their occupation as its agents was no longer in existence, is not reviewable in the Federal Supreme Court as involving a denial of the claim that in proceeding to determine the case without making the corporation a party defendant it will be deprived of its property without due process of law, since, not being a party, the rights of the corporation are not affected by such decree.
delivered by Mr. Justice Brewer, then cir-IN ERROR to the Supreme Court of the
cuit judge; Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St. 65, 19 L. R. A. 510, 40 Am. St. Rep. 648, 33 N. E. 292; Jamaica Pond Aqueduct Corp. v. Brookline, 121 Mass. 5; Re Deering, 93 N. Y. 361; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 254, 41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581. In the latter case it was held that uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation. In our view, that is all there is to this case. The gas company, by its grant from the city, acquired no exclusive right to the location of its pipes in the streets, as chosen by it, under a general grant of authority to use the streets. The city made no contract that the gas company should not be disturbed in the location chosen. In the exercise of the police power of the state, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense, none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria.
We find no error in the judgment of the Supreme Court of Louisiana, and the same is affirmed.
State of Michigan to review a decree requiring the defendants to vacate certain lands and enjoining them from mining Dismissed for want of jurisdic
See same case below, 96 N. W. 468.
Statement by Mr. Justice Day:
This case was begun in the circuit court of the state of Michigan by the defendants in error, the Negaunee Iron Company, Edward N. Breitung, and Mary Kaufman, against the Iron Cliffs Company, the Cleveland Cliffs Iron Company, William G. Mather, and Murray M. Duncan. The defendants in error, plaintiff's in the court below, claimed to be the owners of certain premises upon which there was an outstanding lease purporting to run for a term of ninety-nine years from its date, September 17, 1857, made by Charles Harvey to the Pioneer Iron Company. As the controversy in this court centers about this lease, the allegations of the bill in respect thereto may be noticed. It is alleged that the interest conveyed by Harvey on the 17th day of September, 1857, to the Pioneer Iron Company was for the sole purpose of mining and quarrying at its own expense such ores and marble as might be found on the premises, subject to the qualification that the said company should not quarry, mine, or remove any ore from said lands, except such as it could actually convert into merchantable iron in its own furnaces and forges, be
ing the furnaces and forges then being con- | have been operating together in the constructed or about to be constructed by the duct of their business, and whose officers said company at Negaunee. Complainants and agents are in the main the same perallege that at the time of the filing of the sons; that said stock is held as aforesaid bill they were, and for more than fifteen for the use and benefit of said Iron Cliffs years theretofore had been, in the actual and Company and the said Cleveland Cliffs Iron exclusive possession of all the lands de- Company. scribed in the bill, and the ore and marble thereon, claiming to be the exclusive owners thereof. That said Pioneer Iron Company, in the month of September, 1859, erected two certain ore furnaces at Negaunee, instead of one furnace, as contem-solved; and that whatever rights, if any, plated at the time of the execution of the grant or lease by Harvey to the Pioneer Iron Company.
That said Pioneer Iron Company carried on the business of manufacturing iron at its said furnaces from the time they were constructed until about the 1st day of January, 1866. That said Pioneer Iron Company, in carrying on its said business, procured no iron from the premises, or any portion of the premises described in said lease executed by the said Charles T. Harvey to the said Pioneer Iron Company, but procured all of their ore for the manufacturing of iron from other lands.
Complainant alleges that on the 1st day of January, 1866, the Pioneer Iron Company ceased to do business, and has not since that time manufactured or operated under the lease, but, on the contrary, at and from the date aforesaid abandoned the same. On the 10th day of March, 1866, the Pioneer Iron Company entered into an agreement with and leased to the Iron Cliffs Company for the period of ten years its entire real and personal property situated in the county of Marquette, Michigan, consisting of all its iron works, buildings, lands, and property rights. That after making said lease and agreement with the Iron Cliffs Company the said Pioneer Iron Company made and filed no reports as required by the laws of the state of Michigan.
"That at some time prior to the 1st day of January, 1873, the said Iron Cliffs Company became the owner of all the capital stock of said Pioneer Iron Company, and said stock has since that time been held in the names of different individuals for the uses and purposes of said Iron Cliffs Company, and the certificates of stock representing said capital stock of said Pioneer Iron Company have been and now are held in the names of different individuals who are officers, directors, stockholders, agents, or servants of the said Iron Cliffs Company and of the Cleveland Cliffs Iron Company, a corporation organized under the laws of the state of West Virginia and doing business at Negaunee, in said county of Marquette, Michigan, which two corporations
"That on the 2d day of April, A. D. 1887, the corporate existence of said Pioneer Iron Company, by the terms of its articles of association, expired by limitation, and said corporation became and was thereby dis
the said Pioneer Iron Company had and held under and by virtue of said lease, were thereby terminated and extinguished, and such rights and interest thereby reverted to and became vested in said Charles T. Harvey and his grantees.
"That all the lands hereinbefore specially described are mineral lands, and have therein large deposits of valuable iron ore, and that the chief value of said lands consists in the iron ore situated therein, and the mining and removing therefrom of said iron ore by the defendants would take from said lands their principal value, and would work and would be to your orators an irreparable injury.
"That the officers and agents of said Iron Cliffs Company and said Cleveland Cliff's Iron Company, who are engaged in and carrying out the said scheme and plan to defraud your orators, and to mine and remove the iron ore from said lands under the cover and by the use of the name of the Pioneer Iron Company, are, so far as they are known to your orators, William G. Mather, who is the president of said Iron Cliff's Company and also president of said Cleveland Cliffs Iron Company, and Murray M. Duncan, who, your orators are informed and believe, and upon information and belief charge the truth to be, is the managing agent of the said Iron Cliffs Company and of the said Cleveland Cliffs Iron Company. That said Duncan and said Mather and their confederates, as aforesaid, well know that the corporate existence of the said Pioneer Iron Company has long since been terminated and said corporation dissolved, and that the rights and privileges granted in said lease of date September 17, 1857, have reverted to the said Charles T. Harvey and his grantees; notwithstanding which said Duncan, under the pretense that he is acting as agent of said Pioneer Iron Company, is engaged in superintending and directing said work which is being done on said lands by various persons who are laborers acting under his orders." The prayer of the bill is
"(1) That by the decree of this honorable court, all the rights and privileges in the
mineral and stone granted in said lease, ex-¡ have been carried on by the Pioneer Iron ecuted by the said Charles T. Harvey as aforesaid, to the said Pioneer Iron Company, be declared to be terminated and of no binding force or effect as against your orators or their said lands.
"(2) That in so far as it affects your orators' said lands, said lease be canceled and the cloud upon your orators' title as aforesaid be removed, and your orators' title to all the iron ore and marble in and upon their said lands be quieted and confirmed in your orators.
Company, and deny that the charter of said company has expired; admit that said company through its agents has continued to carry on the operations begun by the Pioneer Iron Company under the direction of William G. Mather, as one of the officers of said company, and deny any interest in the matter set forth in the bill except as some or all of them may be stockholders or officers in the Pioneer Iron Company.
After issue joined and proofs taken, the bill of complaint was amended so as to charge that the defendants claim and pretend that under the provisions of number 142 of the Public Acts of 1889, and under number 60 of the Public Acts of 1899 of the state of Michigan, said Pioneer Iron Company has been reorganized, and that by reason of said act such reorganized company had the right to mine ore under the said lease. The defendants answered the
"(3) That the said William G. Mather, Murray M. Duncan, the said Iron Cliffs Company, and the said Cleveland Cliffs Iron Company, and their officers, directors, agents, attorneys, and employees, be perpetually enjoined and restrained from setting up in the name of said Pioneer Iron Company or in any other manner any right or title, under said lease from said Charles T. Harvey to said Pioneer Iron Company, amendment, and admitted that in April, in or to your orators' said lands, and enter- | ing upon or removing from said lands any iron ore or marble, and for such other and such further relief as to the court shall seem meet and proper."
1901, the Pioneer Iron Company had caused to be filed in the office of the secretary of state and in the office of the clerk of Marquette county certain perfected articles of incorporation of the said company in renewal of the original organization of said company, and under said reorganization, as well as previous filings, claimed to be a valid corporation. The record discloses that certain articles of association undertaking to reorganize the Pioneer Iron Company were adopted October 18, 1889, and filed in the office of the secretary of state, April 8, 1900, and amended articles were filed on April 8, 1901.
And, raising a Federal question, William G. Mather made the following answer:
One of the defendants, Murray M. Duncan, answering separately, took issue upon the allegations of the bill, and denied specially that the Pioneer Company is dissolved, or any of its rights or property under the lease or conveyance terminated, and avers that the said Pioneer Iron Company is still the owner of the property rights and interests granted and conveyed; admits that he, as an agent of the said company, has actively engaged in conducting operations on some of the lands covered by the conveyance, for the purpose of discovering iron ore to be used in the furnaces of the Pioneer Iron Company, and that if ore sufficient in quantity and quality is discovered on the premises the said Pioneer Iron Company intends immediately to purchase the right to the surface, as re-mination or expiration of said ninety-ninequired in the agreement, and intends to continue explorations until it finds ore on said lands for the use of its furnaces, or discovers the nonexistence of such ore; and further says that he has no personal interest in the lands set forth in the bill, but in all his actions is merely the agent of the Pioneer Iron Company, and not the agent of any other corporation or person whatsoever.
"And this defendant, William G. Mather, answering for himself, says he owns in his own right and as trustee 3,940 shares of stock of said company; and that if any decree be rendered in this case by the court in any way declaring a forfeiture or ter
year lease, or in any way affecting the rights of the Pioneer Iron Company thereunder, that said Pioneer Iron Company not being made a party to this proceeding, he as such stockholder, and said Pioneer Iron Company would thereby be deprived of its and his property without due process of law, in violation of the provisions of the 14th Amendment of the Constitution of the United States, which forbids any state to The Iron Cliffs Company and Cleveland deprive any person of life or liberty or Cliffs Iron Company and William G. Mather property without due process of law; and answer together, taking issue upon the al- this defendant avers that any decision or legations of the bill, admitting the exist- findings of the court in any way limiting, ence of the lease of the Pioneer Iron Com- terminating, changing, modifying, annulling, pany, and aver that the entering and ex- or diminishing the value of any of the plorations on the lands were made and 'rights of the Pioneer Iron Company under
said ninety-nine-year lease, and as expressed | was necessary to supply such furnaces. therein, would be void and of no effect under said provision of said Amendment of the Constitution of the United States."
Upon hearing, the circuit court, after setting forth certain findings, entered the following decree:
"Now, therefore, in consideration of the foregoing findings and determinations of the court concerning the particular matters set forth in the complainants' bill of complaint, it is ordered, adjudged, and decreed that the defendants, their counselors, attorneys, solicitors, and agents, and each and every of them, whether acting in their individual or representative capacity, immediately vacate and remove from the lands described in the bill of complaint, and that they and each of them be and they hereby are perpetually enjoined from further entering upon the said lands of the complainants for the purpose of exploring for or taking therefrom any minerals or iron ore, or for any purpose whatever, without the consent and authority of the complainants." This decree, upon appeal, was affirmed by the supreme court of Michigan. 96 N. W. 468.
That, as the right to mine the ore under the lease was appurtenant to the blast furnaces erected and intended to manufacture the iron so mined, the abandonment and destruction of the furnaces destroyed the right to mine the ore under the lease. The Pioneer Company, after the execution of the ninety-nine-year lease, having found ore in nonpaying quantities, had abandoned explorations, and for forty-three years had made no attempt to mine on the lands. That in 1866 the Pioneer Iron Company conveyed to the Iron Cliff's Company, for a period of ten years, all its iron works, buildings, lands, and property rights. The Iron Cliffs Company afterwards became the owner of all the stock of the Pioneer Company, and thereafter carried on the furnace business. That the Pioneer Iron Company was regarded as merged in the Iron Cliffs Company, and never thereafter made or filed any reports as required by the laws of the state of Michigan. That the complainants and those under whom they claim right and title, beginning about the year 1870, spent large sums of money in exploring and developing the lands and opening valuable
From this judgment a writ of error was mines thereon, and that the rights thus . sued out to this court.
Messrs. James H. Hoyt, Elihu Root, and Hoyt, Dustin, & Kelley for plaintiffs in
Messrs. Scott W. Shaull, Benton Hanchett, Arch B. Eldredge, H. F. Pennington, and Charles R. Brown for defendants in error.
acquired, with the knowledge of those in interest, had worked an estoppel of any claim of right under the lease. For these, among other reasons, the supreme court affirmed the decree of the circuit court.
It is apparent that the questions decided in the state supreme court were of a nonFederal character, and give no right of review here unless it is true that in this judgment the Pioneer Iron Company has
Mr. Justice Day delivered the opinion of been concluded and its property rights taken the court:
The Federal question, from which alone this court can take jurisdiction, is alleged to arise from the adverse decision made upon the answer of William G. Mather, setting up, in substance, that in proceeding to determine the case and render a decree without the presence of the Pioneer Iron Company as a party defendant in the action the said company and Mather, as a stockholder therein, were deprived of property without due process of law, in violation of the 14th Amendment to the Constitution of the United States. It is elementary that, unless such Federal right set up in the state court was denied the plaintiff in error, this court has no jurisdiction. An examination of the opinion and decision of the supreme court of Michigan shows the court held, among other things, that the lease to the Pioneer Iron Company and the rights acquired thereby were appurtenant to the furnaces then existing upon the lands, and that it acquired no right to mine more ore than
without giving it an opportunity of being heard in the case. It is fundamental that no person can be deprived of property rights by any decree in a case wherein he is not a party. Not being made a party to the suit, the rights of the Pioneer Iron Company cannot be affected in any way by the decision of the court. Finley v. Bank of United States, 11 Wheat. 304, 307, 6 L. ed. 480; New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 480, 41 L. ed. 518, 523, 17 Sup. Ct. Rep. 161.
But it is urged that, notwithstanding the Pioneer Iron Company is not a party to the record, its rights are necessarily adjudged in the decision, which affects the lease granted to it, and under which the defendants in their answer claim to act. But we cannot concede this proposition. It may be answered primarily that the Pioneer Iron Company cannot thus be denied its rights. The affirmative relief granted to the complainant must be on the case made in the bill, its amendment, and the testimony sup