City of Fergus Falls v. Fergus Falls Water Co.

CALDWELL, Circuit Judge (after stating the case as above), delivered the opinion of the court. The defendant challenged the jurisdiction of the circuit court at every stage of the case, and that is the only question we find it neces: sary to consider. The jurisdiction is attempted to be maintained upon the ground that the case is one arising under the constitution of the United States. But clearly this is not so. The complaint shows the suit to be one to recover for water furnished by the plaintiff to the city under the contract set out in the complaint. In a word, it is a suit to recover for the breach of an alleged contract to pay for water. It does not differ in any respect from a suit to recover for water supplied to a private consumer. It is in no wise different from a suit brought by one individual or private corporation against another indi [875] vidual or private Corporation to recover for fuel, merchandise, or other property alleged to have been sold and delivered by the one to the other under a contract to pay a stipulated price therefor' In all such cases the cause of action is not grounded on any right derived from the constitution of the United States, but arises out of the contract between the parties. The right to contract and the obligation of contracts autodate the constitution, and were not derived from it. An action, therefore, to recover upon the contract in suit, or to enforce its obligation, is not a suit arising under the constitution. But it is said that the complaint sets up that the defendant, by resolution of its council, declared the contract, null and void, and that this resolution impairs the obligation of the contract, and is in contravention of the constitution of the United States. Conceding all this to be so, it' does not serve to make the plaintiff's cause of action one arising under the constitution. Notwithstanding this averment, it is indisputable that the complaint shows the plaintiff’s suit is based upon, and ¡irises out of, the contract in suit, and not under the constitution. The plaintiff seeks, in its complaint, to inject a federal question into the cast* by suggesting that the defendant will interpose as a defense to the suit a resolution of its council which impaired the obligation of the contract, in contravention of the constitution. It is apparent that the only use the plaintiff proposes to make of the constitution is as a barrica' to a defense which the plaintiff suggests the defendant may set up. The appeal to the constitution is made, not to support ¡he plaintiff’s cause of action, but by way of replication to an anticipated defense. The jurisdiction of the circuit court cannot be invoked by any such form of pleading in an action like this. In equity pleadings the complainant is allowed to anticipate and avoid a defense, and this is called the “charging part of the bill.” Story, Eq. 1*1. § 31. But at law the plaintiff is never expected to state matters which should come more1 properly from the other side. It is sufficient. for each party to make out his own case. 1 Chic. Pl. (Ed. 1867) 222. It is sufficient for the x>laintiff to state his own cause of action, and ho should not anticipate his adversary’s defense, for the reason that the latter may never make the defense sought to he guarded against. Bliss. Code Pl. § 200. In this case the defendant set up ho such defense; as the plaintiff pretended to anticipate and avoid, in Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 34 Sup. Ct. 654. the1 supreme court say that: ■TS.v üie settled law of this court, as appears from the decisions above cited, a, suggestion of one party that the other will or may set up a claim under the constitution or laws of the United ¡States does not make the suit one arising under that constitution or those laws.” And it is equally well settled that the suggestion in a complaint in an action at law that the defendant may or will set up a defense based on a state statute repugnant to the constitution does not make the suit one arising under the constitution. The averments of the complaint, beyond those which state a cause of action upon the contract in suit, are mere surplusage. When the statement of the plaintiff’s cause of action, in legal and logical form, such as is required by the rules of good pleading, does not disclose [876] that the suit is one arising under the constitution or laws of the United States, then the suit is not one arising under that constitution or those laws, and the circuit court has no jurisdiction. In New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905, Chief Justice Puller, speaking for the court, said: “When a suit does not really and substantially involve a dispute or controversy as to the effect or construction of the constitution upon the determination of which the result depends, then it is not a suit arising under- the constitution. Shreveport v. Cole, 129 U. S. 36, 9 Sup. Ct. 210; Starin v. City of New York, 115 U. S. 248, 257, 6 Sup. Ct. 28; Water Co. v. Keyes, 96 U. S. 199. The judicial power extends to all eases in law and equity arising under the constitution, hut these are cases actually, and not potentially, arising, and jurisdiction cannot be assumed on mere hypothesis. In this‘class of cases it is necessary to the exercise of original jurisdiction by the circuit court that the cause of action should depend upon the construction and application of the constitution, and it is readily seen that eases in that predicament must be rare. Ordinarily the question of the repugnancy of a state statute to the impairment clause of the constitution is to be passed upon by the state courts in the first instance, the presumption being in all cases that they will do what the constitution and laws of the United States require. Chicago & A. R. Co. v. Wiggins Ferry Co., 108 U. S. 18, 1 Sup. Ct. 614, 617. And if there be ground for complaint of their decision, the remedy is by writ of error under section 709 of the Revised Statutes. Congress gave its construction to that part of the constitution by the twenty-fifth section of the judiciary act of 1789, and lias adhered to it in subsequent legislation.” This case, with its citations, demonstrates that the views we have expressed upon this question have the sanction of that court. The demurrer to the complaint for want of jurisdiction should have been sustained. If no demurrer had been interposed, the court, on its own motion, should have dismissed the cause for want of jurisdiction appearing on the face of the complaint. Even if the averments of the complaint had brought the case within the jurisdiction of the court, the suit should have been dismissed when it appeared upon the trial, as it clearly did, that the suit did not arise under the constitution, and that no federal question was involved, but only the question whether the city had authority, under the laws, of Minnesota, to enter into the contract in suit. Bank of Arapahoe v. David Bradley & Co. (decided at present term) 72 Fed. 867. If the city had power under those laws to enter into the contract, its liability was not disputed. If there was no contract, there was no obligation to be impaired. If there was a valid contract, its obligation was not questioned. The judgment of the circuit court is reversed, and the cause remanded, with instructions to dismiss the suit, for want of jurisdiction, at the costs of the plaintiff.