Defendants demurred, assigning special | causes, among which were the following: "(1) Because said bill, taken in connection with Exhibits 'A' and 'B,' made a part thereof, shows that no contract was made between the city of Mobile and the Bienville Water Supply Company as to the rates to be charged the inhabitants of said city for water, but that said contract merely fixed a maximum rate that said water company was to charge the inhabitants of said city of Mobile. "(2) Because said bill of complaint shows that said city of Mobile was specially authorized and empowered by its charter and by the act of the general assembly of Alabama approved November 30, 1898 (and of which said act this court will take judicial notice), to buy or to build, erect and main-plugs therein, and built a reservoir and tain, and to operate waterworks for the supply of its inhabitants with water, and for the extinguishment of fires, and for sanitary, domestic, and other purposes. "(3) Because there is nothing shown or alleged in said bill of complaint and in said Exhibits 'A' and 'B,' made a part thereof, which precludes or estops the city of Mobile from buying, building, erecting, maintaining, and operating a system of waterworks. (4) Because said Exhibits 'A' and 'B' made a part of said bill of complaint, show that the only obligation resting upon and binding upon said city of Mobile is that it shall pay to said Bienville Water Supply Company the sum of fifty dollars ($50) each per annum, payments to be made monthly, for 260 fire hydrants placed on the streets of said city by said water supply company until the expiration of said contract on July 1st, A. D. 1900, and it is not alleged or charged in said bill of complaint that the city of Mobile has or intends to repudiate its obligation to pay for said 260 fire hydrants at the rate of $50 each per annum, payments to be made monthly." The opinion of the circuit court, Toulmin, J., is reported 95 Fed. Rep. 539, and states the facts appearing from the bill, and pertinent legislation, in substance, correctly, as follows: Complainant was a corporation chartered by the legislature of Alabama for the purpose, among other things, of supply. ing water to the city of Mobile, a municipal corporation of the state, and its inhabitants, and was authorized to construct the needed canals, ditches, pipes, aqueducts, etc., best suited for the purpose, and was "charged with the duty of introducing into the port of Mobile (city) such supply of pure water as the domestic, sanitary, and municipal wants thereof may require." Accordingly, complainant laid mains and pipes in the streets of the city, and established hydrants and fire erected pumps connecting with such mains and pipes, at large expense to itself, and used the property to supply the city and its inhabitants with water. August 15, 1888, complainant entered into a contract with the city to furnish for its use 260 fire hydrants, and to furnish water for fire service of a cer tain number of streams and pressure, and further agreed that the city should have the unrestricted use of the hydrants for such fire purposes and the free use of water for all municipal buildings, and that the company would not charge a greater or higher rate for water for domestic use than that specified in the contract. In consideration of complainant's stipulations, the city agreed to pay complainant for the use of the hydrants, monthly, at the rate of $50 a hydrant per annum, during the continuance of the contract, which was for a term of six years. April 14, 1891, the contract was changed in some particulars and the term extended to twelve years. These two contracts were annexed to the bill and marked Exhibits "A" and "B." The bill averred that complainant had "(8) Because said bill of complaint fails complied and was complying with all the obto allege any facts which show that the city ligations and requirements of the contract of Mobile has or intends to do or commit any on its part, and that the city had violated act which will impair the said contract be- and was violating the contract in that it had tween the city of Mobile and the Bienville bought and taken possession of a waterWater Supply Company, and which said con- works plant, and was now operating the tract is made a part of the bill of complaint. same, selling water to customers, and cutting "(9) Because it is shown upon the face rates below those fixed in the contract, and of said bill of complaint that the city of Mo- actually competing in the business of selling bile did not grant the complainant the fran- and furnishing water to its inhabitants, and chise to lay its said water mains and pipes that it had taken away some of complainin the city of Mobile, but that it was done ant's customers, thereby decreasing its inby the general assembly of Alabama, and come; and, further, that the city was buildfrom which it appears that said city of Mo-ing another system of waterworks to supply bile had no lawful authority to grant or to enter into a contract with complainant, conferring thereby the exclusive right or privilege of supplying water to the inhabitants of said city of Mobile." The court sustained the demurrer on the foregoing grounds, and gave complainant fifteen days in which to amend, and, no amendment having been made, dismissed the bill. From that decree an appeal to this court was allowed and perfected, and motions to dismiss or affirm submitted. itself and its inhabitants with water, and that it claimed the right so to do under*the provisions of its charter and an act of the legislature of Alabama of November 30, 1898. The charter provided that the city might contract for, build, purchase, or otherwise acquire public works subject to the approval of a majority vote of the citizens of Mobile at a special election called therefor; and in July, 1897, such an election was held, and a majority of the votes cast were in fa $113 114 pany, Ex parte. (175 U. S. 114) vor of the city contracting for or otherwise lation to that end. Such being the state of acquiring waterworks to be owned and the case, the circuit court did not err in disoperated by the city, and the issuing of missing the bill, and, as there was color for bonds to pay for the same. The act of No- the motion to dismiss, the motion to affirm vember 30, 1898, authorized the issuing of will be sustained. Decree affirmed. bonds for that purpose. It was further averred that acting under and by virtue of the power granted by the charter and the act of November 30, the city had entered into a Re C. G. BLAKE, and Rogers, Brown, & Comcontract to have a system of waterworks built, and that the building of the same was now going on, and that it had made a contract with certain persons to take said bonds, who had already taken and paid for a part of them. Complainant contended that the city had no legal right to impair the value of its plant and to destroy or diminish its income therefrom, which would be the effect of the city's action in building waterworks and furnishing water to its inhabitants, and it was averred that defendant was insolvent, and that the only way complainant could protect itself was through the interposition of a court of equity. It was not asserted by complainant that it had been Mandamus to correct mistake in execution of mandate to state court. Writ of error, and not mandamus, is the proper remedy to correct the action of a state court in failing to give full effect to a 19andate from the Supreme Court of the United States by mistaking or misconstruing its judgment. [No. Original.] Submitted October 30, 1899. Decided November 13, 1899. granted an exclusive franchise to furnish APPLICATION for leave to file a petition nied. See same case below, 52 S. W. 1001. for a of mandamus to the Supreme water to the city and its inhabitants, but Court of Tennessee to compel it to correctly that under the contracts the city had no execute a mandamus which it had received right to furnish water to other persons, or from the United States Supreme Court. De to build or acquire a system of waterworks to supply water to itself and its inhabitants, and that to do this was a violation thereof. The circuit court observed that the city of Statement by Mr. Chief Justice Fuller: Mobile granted complainant no rights or The Embreeville Freehold, Land, Iron, privileges whatever, but that the legislature Railway Company, Limited, was a corpora of the state granted it the right to build tion organized under the laws of Great Brit waterworks and to use the streets of the city ain and Ireland for mining and manufacturfor water purposes, and authorized com- ing purposes, carrying on business in the plainant and the city to contract together state of Tennessee, as authorized by a law of for the purpose of supplying the city with that state of March 19, 1877. The 5th secwater. The contract was made, but there tion of the act gave priority in the distribuwas no express provision in it for furnishing tion of assets to resident creditors of the the inhabitants with water, and no stipula- state. The company having become insoltion by complainant that it would do so, vent McClung and others filed an original though it was clear that the parties contem- creditors' bill in the proper court, asking the plated that complainant would contract appointment of a receiver and the adminis with the inhabitants to supply them with tration of the affairs of the company as an water for domestic purposes, since it was insolvent corporation. The case resulted in stipulated that complainant should not a final decree by the supreme court of Tencharge for water so supplied higher rates nessee adjudging that the Tennessee credit than those specified therein. On the other ors were entitled, under said section, to prihand, the city was authorized and empow- ority in the distribution of the assets over ered by its charter and the act of the legis-simple-contract creditors of other states and lature of Nevember 30, 1898, to build or oth- countries. Among the creditors affected erwise acquire waterworks of its own to sup ply water to itself and its inhabitants for the extinguishment of fires and for sanitary and domestic purposes, and the city in its contracts with complainant did not agree not to do so. It did agree to pay complain: ant for a certain number of hydrants erected and supplied by it, and to make the pay ments monthly, but there was no averment that the city had by act or word repudiated its obligation, or failed or refused to make the payments stipulated for, or that it intended to do so. were C. G. Blake and Rogers, Brown, & Company, citizens of the state of Ohio, and the Hull Coal & Coke Company, a corporation of Virginia, who, being dissatisfied, sued out a writ of error from this court. And it was held, reversing the decree of the state supreme court, that the 5th section of the act of 1877, in so far as it gave priority to Tennessee creditors over creditors of the same class of other states of the Union, was in violation of the 2d section of the 4th article of the Constitution, providing that "the citi zens of each state shall be entitled to all priv. In short, there were no facts averred show-ileges and immunities of citizens in the severing that the city had violated, was violat- al states;" but it was also ruled that a coring, or intended to violate, its contracts poration created under the laws of another with complainant, and there was no legis- state was not a "citizen" within the meaning *117 of this clause. Blake v. McClung, 172 U. S. 239, 258, 262, 43 L. ed. 432, 439, 440, 19 Sup. Ct. Rep. 165. In the opinion, among other things, it was said: "We adjudge that when the general property and assets of a private corporation lawfully doing business in a state are in course of administration by the courts of such state, creditors who are citizens of other states are entitled, under the Constitution of the United States, to stand upon the same plane with creditors of like class who are citizens of such state, and cannot be denied equality of right simply because they do not reside in that state, but are citizens residing in other states of the Union." compel a judicial tribunal to decide a matter within its discretion in a particular way, or to review its judicial action had in the exercise of legitimate jurisdiction, nor be used to perform the office of an appeal or writ of error. And it only lies, as a general rule, where there is no other adequate remedy. As respects the Federal courts, it is well settled that where the mandate leaves nothing to the judgment or discretion of the court below, and that court mistakes or misconstrues the decree or judgment of this court and does not give full effect to the mandate, its action may be controlled either upon a new appeal or writ of error, if involving a sufficient amount, or by writ of mandamus to execute the mandate of this court. City Bank v. Hunter, 152 U. S. 512, 38 L. ed. 534, 14 Sup. Ct. Rep. 675; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291; Re Potts, 166 U. S. 263, 41 L. ed. 994, 19 Sup. Ct. Rep. 520. The judgment was in these terms: "The final judgment of the supreme court of Tennessee must be affirmed as to the Hull Coal & Coke Company, because it did not deny to that corporation any right, privilege, or immunity secured to it by the Constitution of the United States. As to the other plaintiffs Nevertheless, without inquiring whether in error, citizens of Ohio, the judgment must the conclusions of the supreme court of Tenbe reversed, and the cause remanded for fur-nessee were or were not in harmony with the ther proceedings not inconsistent with this opinion; and it is so ordered." views expressed by this court, we are of opinion that the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error, and not by mandamus. The remedy on error is not only entirely adequate and open to be sought, unrestrained by the amount involved, but, in respect of dealing with state tribunals, is manifestly the proper remedy. The mandate having gone down, the counsel of Blake and Rogers, Brown, & Company moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors, but this the state supreme court declined to do, and entered a That it is adequate under § 709 of the Redecree that Blake and Rogers, Brown, & Com-vised Statutes is clear. Stanley v. Schwalpany were entitled to participate in the as- by, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. sets on the basis of a broad distribution of Rep. 754, a case on a second writ of error to the assets of the corporation among all of its the state court, in which the statutes and creditors without preference or priority, as decisions bearing on the subject are fully though the act of 1877 had not been passed; considered. And that it should be resorted that there should be a computation of the to when the action of the state courts is comaggregate indebtedness due from the corpora- plained of is equally plain. Assuming that tion to its creditors of every class, wherever the question of the form of the proceeding residing, whereupon Blake and Rogers, which this court might adopt to enforce the Brown, & Company should be paid the per- execution of its own mandates in the courts centage and proportion found to be due to of the United States is one of practice merethem on that basis; and that the residue of ly, and either mode might be pursued, as the estate of the insolvent company should ruled by Mr. Chief Justice Taney in Perkins be applied first to the payment of the indebt-v. Fourniquet, 14 How. 328, 330, 14 L. ed. edness due to the creditors of the corporation 441, we think the summary character of the residing in Tennessee as provided in § 5 of proceeding by mandamus renders it inappro the act of 1877, and then pro rata to the pay-priate in respect of the courts of another jument of the debts of the alien and nonresi- risdiction. dent creditors of said corporation other than Blake and Rogers, Brown, & Company. Beard, J., dissented. 52 S. W. 1001. To this decree Blake and Rogers, Brown, & Company duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Messrs. H. J. May and Tully R. Cornick for petitioners. Messrs. John W. Green and S. C. Wil. liams for respondents. Mr. Chief Justice Fuller delivered the opinion of the court: The writ of mandamus cannot be issued to By the 13th section of the judiciary act of 1789 (1 Stat. at L. 81) this court was clothed with the power to issue "writs of mandamus, in cases warranted by the prin ciples and usages of law, to any courts appointed, or persons holding office under the authority of the United States," and this was carried forward into § 688 of the Revised Statutes. And it was ruled in Graham v. Norton, 15 Wall. 427, 21 L. ed. 177, that "this express authority to issue writs of mandamus to national courts and officers has always been held to exclude authority to issue these writs to state courts and officers;" excepting "where they have been issued as process to enforce judgments." In Gordon v. Longest, 16 Pet. 97, 10 L. ed. 900, which *120 119 was a writ of error to review the action of cases like this, because being a mode of rea state court wrongfully refusing to remove dress very likely to lead to jealousies and a case into the circuit court, Mr. Justice Me-collisions between the states and general Lean intimated that mandamus might lie government, of a character anything but deto compel action by the state court, but the sirable." New York Supreme Ct. Justices remark was purely obiter, and cannot be rev. Murray, 9 Wall. 274, sub nom. New York garded as authoritative. Supreme Ct. Justices v. United States, Murray, 19 L. ed. 658, was a writ of error to the circuit court for the southern district of New York from a judgment for a peremptory mandamus rendered against the justices of the supreme court of New York for the third district to remove a cause, but Mr. Justice Nelson stated in a note on page 276, L. ed. 660, that "the alternative and peremptory mandamus against the supreme court of New York was allowed by consent of the counsel for the defendants, with a view to present the question raised and decided in the case The circuit court had refused to issue it against the court, and issued it only against the clerk. This is stated to prevent the case from being cited as an authority for the power, and without intending to express any opinion on this subject." And see Hough ▼. Western Transp. Co.,2 1 Biss. 425, Drummond, J.; Fisk v. Union P. R. Co., 6 Blatchf. 362, Blatchford, J.; High, Extr. Rem. 3d ed. § 227 et seq., and cases cited. Leave to file petition denied. By the 14th section of the judiciary act, circuit courts were vested with power "to issue writs of scire facias, ... and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions, and agreeable to the principles and usages of law," which was re-enacted as § 716 of the Revised Statutes. In Bath County v. Amy, 13 Wall. 244, 20 L. ed. 539, it was held that the circuit courts had no power to issue writs of mandamus to state courts by way of original proceeding and where the writ was neither necessary nor ancillary to any jurisdiction which the court then had. But our attention has been called to no case in which this court has exercised jurisdiction by mandamus under circumstances similar to those supposed to exist here; while there are cases in the circuit courts which illustrate the propriety of declining to do In Ladd v. Tudor,1 3 Woodb. & M. 325, which was an application for a mandamus to compel a state court to remove a cause to the circuit court, Mr. Justice Woodbury said: "Some doubt might exist whether a mandamus to a state court from this tribunal organized under another government was the proper remedy. It has been settled that a state court cannot issue a mandamus to an officer of the United States. McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340. In 16 Pet. 97, 10 L. ed. 900, the remedy was by a writ of error to reverse the first judgment in the state court. And where another remedy lies, a mandamus is held to be improper. Morris v. Mechanic's Bank, 10 Johns. 484, But Spraggins v. Humphries County Ct. Cooke (Tenn.), 160, seems to countenance the present cause. Brown v. Crippin, 4 Hen. & M. 173, quoted in some of the Digests for it, seems, on examination, to be a case of a mandamus from the highest state court to com. mon pleas in the same state, to remove such a case, and not one from a court of the United States. In McIntire v. Wood, 7 Cranch, 504, 3 L. ed. 420, it was held that a mandamus did not lie from the circuit court to an officer of the United States; and though that speaks generally of the power of this court to issue it in order to sustain its jurisdiction, and the decision in Cooke rests on that power of superior courts to enforce their jurisdiction over inferior ones by mandamus, yet it is very ques tionable whether a case like the present ought to be considered within that principle. It is a correct principle between inferior and superior courts of the same government, but difficult to be upheld between courts established by separate governments. If necessary to decide on this, it might require more grave consideration before sustaining it in Fed. Cas. No. 7,975. (175 U. S. 120) CITY OF NEW ORLEANS, Petitioner, v. JOHN G. WARNER. Limitation of action on drainage warrant— conclusiveness of judgment dismissing suit on warrant-liability of city for breach of contract to collect assessments to pay warrants-assessment of public property for public improvements-constitutional limi tation of municipal indebtedness-interest on municipal warrants. 1. Warrants drawn by the administrator of accounts upon the administrator of finance of a city, payable to the order of a third person out of any funds in the city treasury to the credit of a particular corporation, are not within the provisions of a statute limiting the time for bringing actions on bills of exchange, notes payable to order or bearer, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise. 2. The statute of limitations will not run against the liability of a city under its agreement, upon voluntarily purchasing with drainage warrants a plant for perfecting its drainage system, to facilitate the collection of assessments, and not to divert such collections from payment of the warrants, until it repudiates the trust, although judgments are substituted for the warrants against its own property. ment of the warrants, is not shown by abandonment of the drainage work soon after purchasing the plant. 4. A city which has purchased with drainage warrants a plant to perfect its drainage system, under an agreement to collect the drainage assessments and apply the fund to payment of the warrants, does not cease to be a trustee with respect to the assessments against its own property, because they are reduced to judgments. were 5. A decree dismissing, with a bill against a 7. A city which purchases with drainage war- tem. 8. In Louisiana, public property is liable to assessment for public improvements. 9. That private property is to be assessed for the entire cost of a public improvement, Including the benefit to streets and public squares, is not shown by the fact that the statute makes no provision as to how the proportion of the expense applicable to public property is to be assessed and paid for, while elaborate provision is made for the assessment of private property for its proportion of the expense. 10. After a lapse of more than twenty years a city cannot question the validity of judgments against itself, to which it assented, for assessments upon its property for public improvements, upon the ground that such property was not subject to assessment, especial 13. 14. the ground that it made a bad bargain and paid more than the property was worth, and that the action of the common council was dictated by improper motives. Presentation of drainage warrants for payment or indorsement, as provided by statute, is necessary to start the running of interest under a statute providing that they shall be paid out of a particular fund when presented, and in case the fund is not sufficlent that fact shall be indorsed upon them by the proper officer, and that they shall bear interest from such indorsement, where the city has merely abandoned the work for which the assessments to pay the warrants were to be collected, and has not repudiated or disabled itself from performing its obligation. Commencement of suit upon a drainage warrant which, by the terms of the statute under which it was issued, is to bear interest above the legal rate from the time it is presented for payment and the fact of lack of funds is indorsed thereon, is a sufficient demand to make the warrant carry interest from that time at the specified rate. [No. 172.] Argued March 13, 1899. Decided November 13, 1899. YERTIORARI to the United States Circuit review a judgment reversing a judgment of the United States Circuit Court for the East. ern District of Louisiana in favor of defendant in an action brought to enforce a liability of the city for breach of its contract to facilitate the collection of drainage assessments and apply the proceeds to pay. ment of plaintiff's warrants. Modified and affirmed. See same case below, 52 U. S. App. 348, 81 Fed. Rep. 645, 26 C. C. A. 508. Statement by Mr. Justice Brown: This was a bill in equity filed November 26, 1894, in the circuit court for the eastern district of Louisiana by John G. Warner, a citizen of the state of New York, on behalf of himself and all other parties holding obli gations of the same nature and kind as himself, to charge the city of New Orleans as the debtor of specific taxes averred to have been levied by lawful authority for the pay. ly assessments approved by the legislature. 11. A constitutional amendment adopted, pend-chase of a drainage plant and franchise, the ment of certain warrants, issued for the pur ing the execution of a contract for the construction of a drainage system for a city, collection of which was made the duty of prohibiting "increase" of the city's debt, petitioner by statutes hereinafter set forth. which expressly provides that it shall not be A liability on the part of the city was construed so as to prevent the issue of drain- averred as the result of a contract alleged to age warrants to the transferee of the drain-have been broken by it, and a disregard and age contract, payable only from drainage violation of duties imposed upon it by stat taxes, should receive a construction com- ute as to the prosecution of the work of mensurate with the object intended to be ac- drainage and the collection of assessments complished, and will authorize the issue of therefor. warrants in payment for the contractor's plant in case the city decides to do the work Itself, where the debt created by the drainage assessments had already been incurred and put in judgment. 12. A court will not set aside a contract by a municipal corporation for the purchase of property which has been delivered to it, upon The facts of the case are so fully set forth in the cases of Peake v. New Orleans, 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541, and Warner v. New Orleans, 167 U. S. 467. 42 L. ed. 239, 17 Sup. Ot. Rep. 892, that a succinct statement of such facts, taken largely from the opinion of the circuit court $122 |