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*195 *Examining subsection 25, we are unable to discover any grant of authority to fix the rates for water consumption. It is therein first provided that the council may grant the right of way over the public streets to any railroad or street railroad company on such conditions as to the council may seem proper, and shall have a supervising control over the use of the same, and the council is given the right to regulate the speed of cars and signals and fare on street cars, and under like conditions and supervision, the council may grant the right of way to water companies among others. This language is certainly very far from that express authority to reg ulate rates, which is essential in order to enable municipalities so to do. The power to grant a right of way to water companies is specifically granted, and this under like conditions and supervision already provided as to railroad and street *railroad companies. This is the full measure of the grant of authority to deal with water companies. The right to regulate fares is in the same sentence which grants authority to deal with water companies, and is specifically limited

*196

to fares on street cars.

Nor do we find in other subsections of this section any provision from which the right to fix the rates of water companies can be inferentially deduced.

city council passed an ordinance providing
citizen more than another, and imposed a
that a gas company should not charge one
fine for violation of the ordinance. The city
was of the fifth class, and was given author-
ity to make "all other local police, sanitary
and other regulations, not conflicting with
the general laws.”
act for the government of this city of the
fifth class must be read in connection with
the statutes conferring power on larger
cities, and, that thus construed, there was
no grant of authority to the city to impose
a fine such as the one in question in the ab-
section from Dillon on Municipal Corpora
sence of legislative authority so to do. The

The court held that the

*197

*tions, stating that the authority of a municipality to regulate rates to be charged by public service corporations is limited to cases in which express or plain legislative authority has been given was quoted with approval. Cases from other states in which the principle has been approved were also cited.

It is true that this case is not precisely in point, but it contains a recognition by the Court of Appeals of Kentucky of the acceptbe granted to municipal corporations by a ed principle that the right to fix rates must is said, however, that our decision in Owensplain expression of legislative authority. It

boro v. Owensboro Waterworks Co., 191 U. S. Counsel call to our attention but one case 358, 24 Sup. Ct. 82, 48 L. Ed. 217, holds a confrom Kentucky, whose court of last resort trary view. So far as apposite, that case is final authority upon the construction of dealt with the power of a city of the third the statutes, and that is United Fuel & Gas class to fix rates for water consumers. As Co. v. Commonwealth, 159 Ky. 34, 166 S. W. to cities of that class, section 3290 of the 783. There the United Fuel & Gas Com- Kentucky statutes specifically provides aupany held a franchise from a city in Ken-thority to provide the city and inhabitants tucky under an ordinance providing that the grantee of the franchise should furnish for public and private use for the city and its inhabitants natural and artificial gas at a reasonable price not exceeding in any event $1 per 1,000 cubic feet, and that the grantee in delivering gas should not discriminate against the consumers in the city. The company proposed to sell gas to the inhabitants of the city at 20 cents per thousand feet if they would sign a contract for five years, but it charged persons who did not sign such a contract 25 cents a thousand feet. The

part thereof, and shall have power to punish by ordinance and impose the same penalty as for damaging or molesting any other public property, and may, subject to the rules of any water company which may establish such system, select persons who shall have the right to open, tap or make connection with such pipes or mains in streets, alleys, or public ways of said city. •

"(33) Said city council shall have legislative power to make by-laws and ordinances for the carry

ing into effect of all of the powers herein granted for the government of the city, and to do all things properly belonging to the police of incorporated cities. Said board of council may change the boundary line of any ward or wards of any city now divided into wards, or hereafter divided into wards,

under the provision of this act, not less than sixty days previous to any November election."

thereof with water, light, etc., service by contract or by works of its own, and to make regulations for the management thereof, and to fix and regulate the price to consumers and customers. Dealing with that section, and the authority conferred upon cities of the third class, this court said:

"The purpose of section 3290 was to provide the inhabitants of cities of the third class with the services mentioned-water, light, power, heat and telephone. They could be provided by the cities directly or they could be provided by private persons; but whatever way provided, the power was given to regulate the management and fix the rates of the services, and this was but the endowment of a common governmental power."

This language was used in regard to the authority given in express terms to fix rates. It was said of such authority that it was but the endowment of a common governmental power. This is undoubtedly true. But it is equally certain that the governmental power rests with the state, and must be con*198

ferred upon the municipality *in an unmistakable way. We find nothing in the Owensboro Case which at all conflicts with the

(40 Sup.Ct.)

construction which we have given to section | the bill must excuse the delay in seeking equity 3490, applicable to cities of the fourth class relief; otherwise, complainant's laches may be to which the city of Winchester belongs. taken advantage of by demurrer or on final Finding no error in the judgment of the hearing. District Court, the same is

Affirmed.

(251 U. S. 233)

HAYS v. PORT OF SEATTLE et al.

Appeal from the District Court of the United States for the Western District of Washington.

Suit by William F. Hays against the Port of Seattle and others. From a decree dismissing the bill (226 Fed. 287), complainant

(Argued Nov. 12, 1919. Decided Jan. 5, 1920.) appeals. Affirmed.

No. 70.

1. COURTS 299-FEDERAL DISTRICT COURT HAS JURISDICTION UNDER BILL SHOWING CONTROVERSY UNDER NATIONAL CONSTITU

TION.

The averments of the bill setting up alleged obligations of complainant's contract with the state, and the contention that they were impaired by a state statute, presented a controversy

under the national Constitution, and (enough

being involved) conferred jurisdiction on the
federal District Court, irrespective of citizen-
ship of the parties.
2. COURTS

385(7)-CONTROVERSY UNDER NATIONAL CONSTITUTION PERMITS DIRECT AP

PEAL FROM DISTRICT COURT TO SUPREME
COURT.

The bill in a federal District Court claiming that a state statute violated the national Constitution warranted a direct appeal to the Supreme Court, under Judicial Code, § 238 (Comp. St. § 1215).

3. CONSTITUTIONAL LAW 121(1)—STATUTE
GIVING MUNICIPALITY TITLE TO WATERWAY
NOT IMPAIRING OBLIGATION OF CONTRACT
WITH STATE TO EXCAVATE IT.

Laws Wash. 1913, p. 195, vacating part of a waterway and conferring the title on a municipality, did not impair the obligation of complainant's contract with the state to excavate it; but its obligation remained as before, and formed the measure of his right to recover from the state for damages.

Mr. William F. Hays, of Seattle, Wash., pro se.

Messrs. L. T. Turner, C. E. Claypool, and Harold Preston, all of Seattle, Wash., for appellees.

+234

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

Appellant filed his bill in equity for an injunction to restrain the enforcement of an act of the Legislature of the state of Washington, approved March 11, 1913 (Sess. Laws, p. 195), entitled "An act vacating a portion of Smith's Cove waterway, in the city of Seattle, and vesting the title of the vacated portion in the port of Seattle," upon the ground (a) that it impaired the obligation of an existing contract between him and the state, in violation of section 10 of article 1 of the Constitution of the United States; and (b) that it deprived him of property without due process of law, contrary to section 1 of the Fourteenth Amendment. Court on final hearing dismissed the bill (226 Fed. 287), and the case is brought here by direct appeal under section 238, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § 1215]), because of the constitutional questions.

The District

The facts, shortly stated are as follows: Under an act of the Legislature approved March 9, 1893 (Sess. Laws, p. 241), which

4. CONSTITUTIONAL LAW 280-PROVISION made provision for the excavation by private

FOR ASCERTAINING AND PAYING COMPENSA-
TION AFTER TAKING FOR PUBLIC PURPOSE
DUE PROCESS.

Laws Wash. 1913, p. 195, vacating part of a waterway and conferring title on a municipality, did not deprive complainant, who had contract with the state to excavate it, of property without due process of law, as, if he had any property rights which were thereby taken, the taking was for a public purpose, and Rem. & Bal. Code Wash. §§ 886-890, as to remedy of persons having claims against the state, furnished adequate provision for compensation; the requirement of due process of law being satisfied by ascertainment of compensation after taking. 5. COURTS 347-BILL IN FEDERAL COURT

MUST EXCUSE LACHES.

In the equity practice of the federal courts, excepted from the Conformity Act by Rev. St. 913, 914 (Comp. St. §§ 1536, 1537), laches need not be set up by plea or answer, but

contract of waterways for the uses of navigation, complainant and another party to whose rights he has succeeded obtained a contract with the state, acting by the Commissioner of Public Lands, which was approved by the Governor on March 7, 1896. It provided for the excavation by complainant of Smith's Cove waterway, in Seattle Harbor, extending from the outer harbor line through the intervening tide lands to the head of Smith's Cove, the excavated material to be used for filling in and raising above high tide the adjacent tide and shore lands belonging to the state of Washington. For doing this he was to be entitled to compensation equivalent to the cost of the work plus 15 per centum and interest, for which he was to have a lien upon the tide and shore lands so filled in. The state agreed to

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

hold these lands subject to the operation of *235

the contract pending its execution, and *subject to the ultimate lien of the contractor thereon, and that it would perform by its authorized agents all things required by the act of 1893 to be performed by the state. The contract provided for and specified the character of the bulkheads and retaining walls to be used, reserving, however, to the Commissioner of Public Lands the right to modify these plans and specifications as to "shape, form, and character of material" as might appear necessary. The contract required complainant at his own cost to excavate also a waterway to extend from the north end of the Smith's Cove waterway across the peninsula separating the cove from Salmon Bay, such excavation to be made under the direction and in accordance with the plans of an engineer to be designated by the Governor of the state or the Secretary of War of the United States, and when excavated to be owned, possessed, and controlled by the United States or by the state, free of cost to them, if the right of way and the privilege of excavating across the peninsula should be accorded to the contractor free of cost or if fair compensation should be made to him therefor. Work was to be commenced within 60 days and completed within 2 years from the date of approval.

latter occasion he was notified to submit proper plans and specifications and to com mence operations within ten days after their approval.

ed in suspense, and pursuant to an act auWhile the excavation project thus remainthorizing establishment of port districts, approved March 14, 1911 (Sess. Laws, p. 412), the port of Seattle was established as a municipal corporation with territorial limits including Smith's Cove waterway, Salmon Bay, and the intervening peninsula. This act conferred extensive powers for the regulation, control, and improvement of the harbor and navigable and nonnavigable waters within such district, in the interest of the public.

Thereafter, by the statute that is now under attack (Sess. Laws 1913, p. 195) it was enacted that the northerly part of the Smith's Core waterway should be vacated and the title thereto vested in the port of Seattle. Complainant was fully advised of this legislative measure, even prior to its en

actment.

After it took effect, which was in June,

1913, the port commission took possession of

237

the waterway, exercised control over it, and did a considerable amount of excava*tion, filling, and bulkhead construction, having spent large sums of money therein between the taking effect of the act and November 14, 1914, when the bill of complaint was filed.

[1, 2] Coming to the questions raised upon the present appeal: The averments of the bill setting up the alleged obligations of complainant's contract with the state, and the contention that they were impaired by the act of 1913, presented a controversy under the Constitution of the United States, and (a sufficient amount being involved) conferred jurisdiction upon the federal court irrespective of the citizenship of the par

On May 4, 1896, complainant entered upon performance of the contract and commenced driving piles for the construction of a bulkhead. Almost immediately he was notified by the Commissioner of Public Lands that the latter elected to exercise the right, as provided by the contract, to change the form of bulkhead. This had the effect of requiring a suspension of work until modified plans and specifications for the bulkheads should be prepared. Complainant did suspend the ties, and at the same time warranted work, and it never was resumed thereafter. a direct appeal to this court under secThere were negotiations and correspondence tion 238, Judicial Code. Greene v. Louisbetween him and the Commissioner of Public ville & Interurban R. R. Co., 244 U. S. 499, Lands looking to the preparation of the mod-508, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. ified plans and specifications, but they result

*236

ed in nothing. *Each party seems to have insisted that it was the duty of the other to furnish them.

Complainant contends that he was at all times ready and prepared to carry out the contract on his part, but was prevented from doing so by acts and omissions of the state and its representatives, including the failure to furnish plans for the modified form of bulkhead and a failure to furnish complainant with a right of way across the peninsula between the head of Smith's Cove and Salmon Bay. Defendants contend that repeatedly, and in particular in the month of November, 1898, complainant was notified that his plans were wholly inadequate and would be insufficient for the purpose for which the retaining wall was designed, and that on the

1917E, 88.

The merits remain for determination.

[3] Upon the first constitutional point, it is important to note the distinction between a statute that has the effect of violating or repudiating a contract previously made by the state and one that impairs its obligation. Had the Legislature of Washington, pending performance or after complete performance by complainant, passed an act to alter materially the scope of his contract, to diminish his compensation, or to defeat his lien upon the filled lands, there would no doubt have been an attempted impairment of the obligation. The legislation in question had no such purpose or effect. It simply, after 17 years of delay without substantial performance of the contract, provided that the project should be abandoned and title to the

(40 Sup.Ct.)

public lands turned over to the municipality. [ courts of equity that their extraordinary reSupposing the contract had not been abandoned by complainant himself or terminated by his long delay, its obligation remained as before, and formed the measure of his right to recover from the state for the damages sustained. Brown v. Colorado, 106 U. S. 95, 98, 1 Sup. Ct. 175, 27 L. Ed. 132; St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 148150, 21 Sup. Ct. 575, 45 L. Ed. 788; Dawson

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Ann. Cas. 1915B, 133.

[4] We deem it clear also that the act of 1913 had not the effect of depriving complainant of property without due process of law, in contravention of the Fourteenth Amendment. Assuming he had property rights and that they were taken, it clearly was done for a public purpose, and there was adequate provision for compensation in sections 886-890, Rem. & Bal. Code of Washington, which entitle any person having a claim against the state to begin an action thereon in a designated court upon the mere giving of security for costs, whereupon service of the complaint is to be made upon the Attorney General and secretary of state, the action is to proceed in all respects as other actions, with a right of appeal to the Supreme Court, and, in case of a final judgment against the state, a transcript of it is to be furnished to the auditor of state, who is required thereupon to "audit the amount of damages and costs therein awarded, and the same shall be paid out of the state treas

lief will not be accorded to one who delays the assertion of his claim for an unreasonable length of time, especially where the delay has led to a change of conditions that would render it unjust to disturb them at his instance. It is for the complainant in his bill to excuse the delay in seeking equitable relief, where there has been such; and if it be not excused his laches may be taken advantage of either by demurrer or upon final hearing. Maxwell v. Kennedy, 8 How. 210, 222, 12 L. Ed. 1051; Badger v. Badger, 2 Wall. 87, 95, 17 L. Ed. 836; Marsh v. Whitmore, 21 Wall. 178, 185, 22 L. Ed. 482; Sullivan v. Portland, etc., R. R. Co., 94 U. S. 806, 811, 24 L. Ed. 324; National Bank v. Carpenter, 101 U. S. 567, 25 L. Ed. 815; Lansdale v. Smith, 106 U. S. 391, 1 Sup. Ct. 350, 27 L. Ed. 219; Hammond v. Hopkins, 143 U. S. 224, 250, 12 Sup. Ct. 418, 36 L. Ed. 134; Galliher v. Cadwell, 145 U. S. 368, 371-373, 12 Sup. Ct. 873, 36 L. Ed. 738; Hardt v. Heidweyer, 152 U. S. 547, 559, 14 Sup. Ct. 671, 38 L. Ed. 548; Abraham v. Ordway, 158 U. S. 416, 420, 15 Sup. Ct. 894, 39 L. Ed. 1036; Willard v. Wood, 16! U. S. 502, 524, 17 Sup. Ct. 176, 41 L. Ed. 531; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 696-698, 18 Sup. Ct. 223, 42 L. Ed. 626.

Decree affirmed.

(251 U. S. 221)

UNITED STATES v. POLAND et al.

ury." If his claim has not been barred by (Argued Nov. 19, 1919. Decided Jan. 5, 1920.)

No. 29.

IN

SUIT TO CANCEL PATENT AS PROCURED BY
FRAUD NOT SUSTAINED BY AFFIDAVIT FILED
TO PROCURE PATENT.

limitation of time, this statute constitutes an adequate provision for assured payment of any compensation due to complainant 1. PUBLIC LANDS 120 — ALLEGATION without unreasonable delay; and hence satisfies the requirement of due process of law as clearly as if the ascertainment of compensation had preceded the taking. Bragg V. Weaver, 251 U. S. 57, 40 Sup. Ct. 62, 64 L. Ed. - decided December 8, 1919.

[5] The District Court, besides finding complainant's case to be otherwise without merits, held in effect that he was barred from relief in equity by laches, because after the taking effect of the act of 1913 he stood by for more than a year and permitted the port commission to enter upon extensive improvements and expend large moneys on the waterway and adjoining lands, before he began his suit. The only answer made to this is that the defense of laches was not pleaded.

*239

In suit to cancel a patent for Alaskan lands, the allegation of the complaint that patent was fraudulently procured, in that among the proofs presented to the land officers was an affidavit falsely representing that the two tracts to be patented were more than 80 rods apart, when in truth they were adjoining tracts, candavit set forth do not sustain the pleader's connot be considered, where the words of the afficlusion as to what was represented, and the complaint makes it certain the application for patent and other entry papers disclosed the tracts were contiguous.

2. PUBLIC LANDS 35(2)—ENTRY OF ALAS

KAN LANDS UNDER SOLDIERS' ADDITIONAL
RIGHTS VIOLATIVE OF STATUTE.

In view of the circumstances in which the But in the equity practice of the courts *of the United States (excepted from the Con- provision was incorporated in Act Cong. March 3, 1903 (Comp. St. § 5046), amending Act Cong. formity Act, see Rev. Stat. §§ 913, 914 [Comp. May 14, 1898, extending the homestead laws St. §§ 1536, 1537]), laches is a defense that to Alaska, and providing that no more than need not be set up by plea or answer. It 160 acres shall be entered in any single body rests upon the long-established doctrine of by means of soldiers' additional homestead

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

rights, it is in contravention of the provision to make separate entries of lands in point of contiguity and compactness constituting a single body of 319.75 acres, where both entries are by the same person and are based upon soldiers' additional homestead rights.

of Appeals, one judge dissenting, 231 Fed. 810, 145 C. C. A. 630, and the case is here on writ of certiorari.

Of course, it rested with Congress to determine whether, when, and with what restrictions the general land laws should be

3. PUBLIC LANDS 120-CANCELLATION OF extended to Alaska. For many years there

PATENT GRANTED EXCEPT AS AGAINST BONA
FIDE PURCHASER.

Where a second patent to Alaskan lands was issued by the land officers in violation of law, the United States government is entitled

to demand that it be canceled unless a successor
of the patentee is a bona fide purchaser.

4. PUBLIC LANDS 120-BURDEN OF PROOF
OF AFFIRMATIVE DEFENSE OF BONA FIDE PUR-
CHASER IN SUIT TO CANCEL PATENT ON DE-
FENDANT.

In suit by the United States government to cancel patent to public lands as issued in violation of law, the defense of bona fide purchaser is affirmative, and must be set up and established by such purchaser.

5. PUBLIC LANDS 130-PATENTEE AFTER CANCELLATION CAN ASK REPAYMENT OR EX

ERCISE HIS RIGHTS TO PATENT.

If a patent to public lands is canceled, the patentee or his assignee will be free to exercise the rights with which the patent was obtained, and also to ask repayment, under Act Cong. June 16, 1880 (Comp. St. §§ 4595-4598), of the fees and commissions paid to the land officers.

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Mr. Justice VAN DEVANTER delivered the opinion of the Court.

was no affirmative action upon the subject. The first steps consisted of limited extensions of the laws relating to mining claims, Act May 17, 1884, c. 53, § 8, 23 Stat. 24, 26, and Town Sites Act March 3, 1891, c. 561, § 11,

⚫223

*26 Stat. 1095, 1099 (Comp. St. § 5079); but with these we are not now concerned. The homestead laws were the next to receive attention. By the Act of May 14, 1898, c. 299, 30 Stat. 409, they were extended to that district with the restrictions (a) that "no homestead" should exceed eighty acres in extent, and (b) that "no entry" should extend more than eighty rods along the shore of any navigable water, and along such shore a space of at least eighty rods should be reserved from entry between all such claims. And by the amendatory Act of March 3, 1903, c. 1002, 32 Stat. 1028 (Comp. St. § 5046), the extension of the homestead laws was rePeated and confirmed, but with the qualifications (a) that an actual settler intending to comply with the requirements in respect of continued residence, cultivation, etc., should be entitled to enter three hundred and twenty acres or a less quantity, (b) that "no more than one hundred and sixty acres shall be entered in any single body" by means of soldiers' additional homestead rights, and (c) that "no entry" should extend more than one hundred and sixty rods along the shore of any navigable water, and along such shore a space of at least eighty rods should be reserved from entry between all such claims. Further restrictions were imposed, but there is no present need for noticing them.

The controversy here is over the meaning and purpose of the provision that no more entered in any single body by means of than one hundred and sixty acres shall be soldiers' additional homestead rights.

The material facts to be gathered from the complaint are these: Poland, who was the assignee of certain soldiers' additional homestead rights entitling their owner to enter and acquire in the aggregate 319.75 acres, wished to use them in entering and acquiring certain land in Alaska. The regular public surveys had not been extended to that locality, so he caused a special survey of the land to be made at his expense, as was permitted

$224

This is a suit to cancel a patent issued to William B. Poland for one hundred and sixty acres of land in Alaska, the gravamen of the complaint being that by this and another patent, both based upon soldiers' additional homestead rights, Poland acquired a single body of land of larger acreage than was permitted by the statute under which by applicable *regulations. 32 Land Dec. 424; the patents were sought and issued. The de- 28 Land Dec. 149. By that survey the land, fendants, who were the patentee and another which was in a compact or single body, was claiming under him, separately demurred divided into two tracts-one of 159.75 acres, to the complaint, and the court sustained designated as survey No. 241, and the other the demurrers and dismissed the suit. That of 160 acres, designated as survey No. 242. decision was affirmed by the Circuit Court As surveyed the north boundary of one tract For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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