CITY OF INDIANAPOLIS v. CENTRAL TRUST CO. OF NEW YORK, 83 F. 529

WOODS, Circuit Judge, after stating the case, delivered the opinion of the court. The right of appeal to this court from interlocutory orders of injunction is given by the seventh

section of the judiciary act of 1891 only “in a cause in which an appeal.from a final decree may be taken under the provisions of this act to the circuit court of appeals”; and it is well settled by the language of the act, and by numerous decisions, that, “in any case that involves the construction or application of the constitution of the United States,” the only appeal allowed is to the supreme court, and under existing statutes that cannot be had until after final decree or judgment. Hamilton v. Drisdale's Ex’rs, 2 U. S. App. 540, 3 C. C. A. 639, and 53 Fed. 753; World’s Columbian Exposition v. U. S., 18 U.

S. App. 42, 6 C. C. A. 58, and 56 Fed. 654; Railway Co. v. Evans, 7 C. C. A. 290, 58 Fed. 433; Green v. Mills, 25 U. S. App. 388, 16 C. C. A. 516, and 69 Fed. 852; Hastings v. Ames, 32 U. S. App. 485, 15 C. C. A. 628, and 68 Fed. 726; Barr v. City of New Brunswick, 39 U. S. App. 187, 19 C. C. A. 71, and 72 Fed. 689; Holt v. Manufacturing Co., 25 C. C. A. 301, 80 Fed. 1.

The contention of appellee is, and the decision of the court below (in part, at least) was, that by force of the statute providing for the organization of street-railroad companies, and by force of the requirement of the constitution of Indiana (section 13, art. 11) that all such corporations shall be created or formed under general laws: “The siete entered into a contract with this corporation whereby it was stipulated and a,"reed that, while that statute might he either amended or repealed, such amendment or repeal should only he compassed by a geiMTál law, applicable alike to all similar corporations throughout the state, and that thus the parties investing money in such an enterprise, did so with the assurance that no legislation should he taken with reference: to them which did not apply alike to all persons interested in property similarly situated.

Western Paving & Supply Co. v. Citizens’ St. R. Co., 128 Ind. 525, 26 N. E. 188, and 28 N. E. 88; City R. Co. v. Citizens’ St R. Co., 166 U. S. 557, 17 Sup.

Ct. 653.” Tliia proposition assumes that the company liad a vested rigid or privilege, within the meaning of the contract clause of the national constitution, not in the subject-matter of the contract (that is to say, not, iu the right to construct and to operate a line or lines of street railroad, and io charge fares, iu accordance with the terras of the accepted ordinances of the city), bul in the process or form of legislation by which it might be proposed to modify or annul Hie contract.

It acquired no right, under the contract, which the slate might not modify, abridge, or annul, by amending or repealing the act of 1861; but. it is insisted that the amendment or repeal, by reason of

section 13 of

article 11 of the state constitution, can be effected only bv a general law, applicable alike to all similar corpora.¡ions throughout the state. And so the court below held, saying, among other tilings: •‘Thin richt [to ehurge a live-cect fare] cannot he modified otherwise than as provided in ilm charier contract, namely, by amendment of the act according to the terms of

section 11, when read in the light of, and wiihin the restrictions in, the Indiana consiiiifiion hearing upon the matter of amendment to that act.” From this premise it is argued that the question whether the amendatory act of 1897 is in harmony with the constitution of the state becomes a question of the impairment of contract, within the moaning of the constitution of the United States. The proposition is believed to be novel, and, for the present purpose, that may be its chief merit, since, so long as the contrary has not been established, it may be asserted with the better show of reason.

Whether it is sound or tenable is not now the question; but it is not improper to observe that, if sound, it has a wider scope than has been suggested. If there is a contract between the street-railroad company and the state to the effect that the act of 1861 can be amended only by

an act which shall conform to the constitution of the state, that refers to the present constitution, and means that it is not in the power of the people of the state to so amend their constitution as to authorize special legislation which shall affect the rights of this company under the supposed contract, or of any company organized under the act of 1861. Rights once vested, within the meaning of the national constitution, are protected against impairment by amendment of state constitutions, no less than by ordinary legislation.

The proposition may mean, too, that by no independent enactment, not purporting to amend the act of 1861, can the charters or contracts under that act be affected. For instance, the act of March 6, 3 891, whereby Indianapolis was given a new charter, contains full provisions in respect to street railroads, and, if valid, would seem to have been a repeal by implication of the act of 1861, in so far as it applied to that city. ' Bo the supreme court of the United States seems to have understood when, in the case of City R. Co. v. Citizens’ St. R.

Co., supra, it held that the charter of the latter company was not repealed by the act of 1891, because that act was not to be^given a retroactive construction. It is contended by counsel for the appellant that the inquiry, whether the legislature of Indiana, by the amendment of 1897 luis violated an implied engagement that the act of 1861 should not be amended by any statute violative of the state constitution, does not involve the application or construction of the constitutional provision against impairment of contracts, and therefore is not a federal question.

In support of this view are quoted expressions from the opinions of judges in Jackson v. Lamphire, 3 Pet. 281; Charles River Bridge v. Warren Bridge, 11 Pet. 584; Dartmouth College v. Woodward, 4 Wheat. 563; Bank v. Buckingham’s Ex’rs, 5 How. 317; Newton v. Commissioners, 100 U. S. 548; Stone v. Mississippi, 101 U. S. 817; Church v. Kelsey, 121 U. S. 282, 7 Sup. Ct. 897; Lehigh Water Co. v. Easton, 121 U. S. 388, 7 Sup. Ct. 916. But in none of those cases was there involved a question just like that, now under consideration, and what was said, however persuasive, cannot be regarded as decisive.

A further pursuit, however, of this discussion is unnecessary here, because it is plain that this phase of the case may be disposed of without determining whether there has been an impairment of contract. That the contract between the parties has been violated or impaired is asserted, on the theory of the proposition now under consideration, solely on the ground that the act of 1897 is in conflict with the state constitution.

The court below, having jurisdiction of the case by reason of the diverse citizenship of the parties, even if not on other grounds, adhered to the view which it at first declared, notwithstanding the later decision to the contrary by the supreme court of the state, and reaffirmed the unconstitutionality of the enactment.

From that conclusion, without going further, it followed that the motion to dissolve the injunction should have been overruled, as it was; and it was unnecessary in that court, and on a review of the question in an appellate court it will be unnecessary, to consider whether a question of the impairment of contract was or is involved. If, on the contrary, the conclusion had been that the act was constitutional, there could, of course, have renamed no question of the impairment of the contract on the ground that the act. had not been constitutionally passed.

The next proposition on which the jurisdiction of this court is denied is that by the ordinance of 1864, and the acceptance thereof hy the Citizens’ Street-Railway Company, there was formed a contract for a five-eent fare between the city of Indianapolis, representing the sovereignty of the state, on the one side, and the street-railroad company on the other, which contract, it is claimed, is impaired by the enactment that only three cents shall be charged.

This assumes that the act of 3807 is not in conflict with any provision of the state constilu lion, and the contention is that the company has a vested right, under the contract, to charge a five-cent fare, which by no form of legislation can be taken away. This is a distinct assertion that there is a contract right which has been impaired, and, unless the contrary is clear, it makes a case of which this court cannot take jurisdiction. The decision which, in its main features, seems to be most nearly in point, was made in Sioux City St. R. Co. v. Sioux City, 138 U. S. 98, 11 Sup. Ct. 226.

In that case the street-railway company (organized under a general law which contained a reservation of power to amend and repeal not essentially unlike the power reserved in

section 33 of the act of June -1. 1861) was required by its original charter (the ordinance of the city permitting it to occupy the streets of the city wiih its road).to pave between the rails of its track. After the company had constructed a part, of its lines, and laid the required pavement between the rails, a statute was enacted to the effect that, in cities of the first class, street-railroad companies should he required to pave between the rails, and for one foot outside of the rails.

Two years later Sioux Ciiy, having meanwhile become a city of the first class, passed an ordinance in conformity with,the statute requiring the company to pave outside, as well as within, the rails of its track. Touching the question of impairment of contract, the opinion of the supreme court says: “No question can arise as to the impairment of the obligation of a contract, when the company accepted all of its corporate powers subject to the reserved power of the state to modify its charter, and to impose additional burdens upon the enjoyment of its franchise.

Under the act of March 15, 1884, it was made a condition of the enjoyment of its franchise by the company, that, when the ciiy should determine that the streets should be paved, the. company should bear a certain portion of the cost thereof; and any prior contract between the company and the city in regard to paving was subject to the provisions of

section 1000 of the Code. There was nothing in the ordinance of December 12, 1880, which bound, or could bind, the city not to exercise its statutory authority to impose other conditions upon the exercise of the lights of the company. Our conclusion, therefore, is that there was no contract between the company and the state or the city, the obligation of which was impaired by the laying of the tax in question.” In City R. Co. v. Citizens’ St. R. Co., supra, after declaring it entirely clear that the Citizens’ Street-Railroad Company had a contract with the city, as had been decided by the supreme court of the state, it was added: “It is true that by

section 11 of the original act of 1861 a right was reserved to the general assembly to amend or repeal, at their discretion, the act authorizing the incorporation of street-railway companies; but that was a right reserved to the general assembly itself, and was 'never delegated, if, in fact, it could be delegated, to the common council of the city.” But further along in the opinion is found this statement: “The original ordinance of January 18, 1864, was plainly a proposition on the-part of the city to grant to the companjr the use of its streets for thirty years, .in consideration that the company lay its track, and operate a railway thereon, upon certain conditions prescribed by the ordinance.

This proposition, when accepted by the company, and the road built and operated as specified, became a contract, which the state was not at liberty to impair during its continuance.” In view of this utterance, the soundness of which it is not for us to question, it cannot be said to be clear that the company is not right in contending that it has a vested right to charge a five-cent fare until' the original period of thirty years, and the additional period of seven years given by a later ordinance, which the supreme court declared valid, shall have expired.

There is, to say the least, too much foundation for the contention to admit of the inference that it is made in bad faith; and, that being so, the question is one for the supreme court,, and not for this court. The appeal is therefore dismissed.