(248 U. S. 30) (Submitted on Motion to Dismiss or Affirm, or Place on Summary Docket, Oct. 8, 1918. Decided Nov. 18, 1918.) Nos. 336-340. 1. COURTS 366(1)—FEDERAL COURTS-FOLLOWING DECISIONS OF STATE COURT-LOCAL LAW. As to questions depending on construction of state laws, decision of state court is controlling on writ of error to it; and this, even though a similar provision of a federal statute has been differently construed by the federal court. 2. CONSTITUTIONAL LAW 298(2)—DUE PROCESS-RATES FIXED BY COMMISSION-DETERMINATION OF REASONABLENESS. Laws of a state, construed as precluding inquiry into reasonableness of rates, fixed by its Railroad Commission, in action to recover charges in excess thereof, made and collected by a carrier, are not violative of Const. U. S. Amend. 14, where opportunity to have validity of the ordered rates judicially determined in suit for that purpose had been provided and availed of by the carrier, resulting in sustaining thereof. In Error to the Supreme Court of the State of Michigan. Separate actions by the Fletcher Paper Company, by the Island Mills Lumber Company, by the Churchill Lumber Company, by the Richardson Lumber Company, and by the Michigan Veneer Company, all against the Detroit & Mackinac Railway Company. Judgments for plaintiffs were affirmed by the Supreme Court of Michigan (164 N. W. 528), and defendant brings error. Affirmed. Messrs. James McNamara and Fred A. Baker, both of Detroit, Mich., for plaintiff in error. Messrs. Edward S. Clark, of Bay City, Mich., and Irwin S. Canfield, of Alpena, Mich., for defendants in error. *Mr. Justice HOLMES delivered the opinion of the Court. cannot deal. Such are whether the orders of the Commission were in force pending an injunction and before the defendant railroad had fixed rates in pursuance of a mandate of the State Court; whether the State laws permit an action to be maintained without an order of reparation by the Commission; and whether the statutes purport to make the order fixing the rates conclusive in the present suits. These questions depend upon the construction of the State laws, as to which, upon writs of error to the State Court Its power that Court has the last word. would not be diminished if similar provisions in an Act of Congress had been differently construed by this Court. The only question properly before us is whether the statutes as construed run against the Fourteenth Amendment of the Constitution of the United States. It is argued that they do, if, as was held, they preclude an inquiry in these proceedings into the confiscatory character of the rates in present circumstances. But the defendant had had its chance to have the validity of the rates judicially determined in a suit for that purpose and had used it. Detroit & Mackinac Ry. Co. v. Michigan Railroad Commission, 235 U. S. 402, 35 Sup. Ct. 126, 59 L. Ed. 288. There is nothing to hinder a State from providing that after a judicial inquiry into the validity of such an order it shall be binding upon the free to apply to the Commission. parties until changed. The defendant was A milling-in-transit rate allowing the defendant to add fifty cents a thousand feet on lumber if, instead of being carried on, after it was manufactured, on the through rate, the product was not reshipped by the defendant's line, was held to be permitted by the statute. It is said that this would be contrary to the interstate commerce act if these cases involved interstate commerce, which they do not. We see no question concerning it that requires to be dealt with here. Judgment affirmed. LAY et al. v. LAY et al. (248 U. S. 24) These five suits were actions of assumpsit (Submitted Nov. 4, 1918. Decided Nov. 18, MENT. 1918.) No. 633. Rev. St. 3477 (Comp. St. 1916, § 6383), does not prohibit claimant from assigning a claim against the United States. brought to recover the difference between the rates fixed by the Michigan Railroad Commission on logs carried wholly within the State, from points on the defendant's (the UNITED STATES 111- CLAIMS — ASSIGNplaintiff in error's) road to Alpena, and the higher rates that the defendant actually charged. The plaintiffs got judgments which were affirmed by the Supreme Court of Michigan, 164 N. W. 528, and the cases are brought here upon lengthy assignments of error. The plaintiffs now move to dismiss or affirm. We are of opinion that the judgments should be affirmed. [1, 2] Most of the assignments of error concern questions of local law with which we In Error to the Supreme Court of the State of Mississippi. Suit by J. F. Lay and others against R. C. Lay and others. Judgment for plaintiffs was reversed by the Supreme Court of Mississippi (79 South. 291), and plaintiffs bring error. On motion to dismiss or affirm. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Mr. John C. Bryson, of Vicksburg, Miss., | tion were required, the legal effect of the words, for plaintiff in error. unexplained, as a perpetual grant. Mr. William H. Watkins, of Jackson, Miss., for defendant in error. 6. RAILROADS 80-RIGHT OF WAY-CONSTRUCTION OF GRANT. *Memorandum for the Court by the CHIEF another railroad shall always be the same as JUSTICE. The right to a fund resulting from the payment of an appropriation by Congress to satisfy a judgment for the value of property taken during the Civil War is the issue here involved. The contestants are the heirs at law of the original claimant and persons holding under an assignment by her of all her right to the claim or fund. The court enforced the assignment. Under the assumption that the claimant was prohibited by the law of the United States (section 3477, Rev. Stats. [Comp. St. 1916, § 6383]) from making an assignment, the heirs at law prosecute error to correct the federal error thus assumed to have been committed. But the assumption indulged in as to the effect of the law of the United States is without merit. McGowan v. Parish, 237 U. S. 285, 294, 35 Sup. Ct. 543, 59 L. Ed. 955. and cases cited. This renders it unnecessary to consider whether, if the heirs at law were entitled to the fund, they would be liable to pay the full sum of the attorney's fee contracted for by the transferee and the duty to pay which the transferee and those in privity do not dispute. Judgment affirmed. A grant of the use of a right of way to a corporation or to perpetual trustees holding for the corporate uses does not need the words in fee or words of succession to be perpetual. 4. DEEDS 120-FEE-LIMITATION. The grantor, if wishing to limit the effect of words sufficient on their face to convey a fee, should express the limitation in the instrument. 5. RAILROADS 80-RIGHT OF WAY-CONSTRUCTION OF GRANT. The purpose of a grant, to supply a roadbed for a trunk line, necessitating considerable expenditure by the grantee, confirms, if confirma Provisions of grant of right of way, that grade adopted by grantee along right of way of that of the other road, and that grant is subject to consent and approval of the lessees of the other railroad "as to the term of the lease," confirms interpretation of the grant as perpetual. "GRATUITY" 7. STATES 119 RAIL ROAD RIGHT OF WAY. Legislative grant of a right of way for a railroad is not a "gratuity," within the prohibition of Const. Ga. art. 7, § 16. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gratuity.] Original suit by the State of Georgia against the Trustees of the Cincinnati Southern Railway and another. Bill dismissed. See, also, 38 Sup. Ct. 191. Mr. William A. Wimbish, of Atlanta, Ga., for the State of Georgia. Messrs. Edward Colston, of Cincinnati, Ohio, and Michael M. Allison, of Chattanooga, Tenn., for defendants. Mr. Justice HOLMES delivered the opinion of the Court. This is a suit brought in this Court by the State of Georgia to prevent the defendants from longer occupying or using any portion of the right of way of the Western & Atlantic Railroad, a railroad built and owned by the! *plaintiff State. The question, although argued at considerable length is a very short one. On October 8, 1879, the State passed an Act (Acts 1878-79, p. 218) sufficiently explained by its contents.1 On August 21, 1916, 1 An Act granting right of way to the Cincinnati Southern Railway, where its route adjoins that of the Western & Atlantic Railroad. Section 1. Be it enacted by the General Assembly of the State of Georgia, That whereas the city of Cincinnati has nearly completed the Cincinnati Southern Railway, a grand trunk line which will be of great benefit to the State of Georgia forming a most important feeder and practically an extension of the Western & Atlantic Railroad, which is the property of the State, and giving to our commerce the advantage of a direct and admirable connection with the railway system of the North and West; And Whereas, said railway reaches the Western & Atlantic Railroad at Boyce's Station, and for the most of the distance to the termini of the two railroads in Chattanooga, their routes run parallel to and adjoining each other, a distance of about five miles; And Whereas, it is to the advantage of both railroads to be able to locate their tracks and works close together, thus saving expense to one in construction, and to both in maintaining the road-bed and facilitating railroad operations; and giving to both railroads the advantage of a stronger and firmer road-bed through a route subject to overflow by floods in the Tennessee River; there is hereby granted to the Trustees of the Cincinnati Southern Railway, for the use of said railway, the use of that portion of the right of way of the Western & Atlantic Railroad between Boyce's Station, Tennessee, and the Chattanooga, Tennessee, terminus that lies westerly of a line running parallel with, and nine and a half feet westerly from the center of the track of the Western & Atlantic Railroad, so as to admit of laying track, if desired, near enough For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *29 28 reciting that the Cincinnati *Southern Rail- to supply a roadbed for a trunk line, necesway now is controlled by a competitor of the sitating considerable expenditure on the part Western & Atlantic road and that the West- of the grantee, confirms, if confirmation were ern & Atlantic needs the space, Georgia required, the legal effect of the words unexundertook to repeal the former Act and to plained. City of Louisville v. Cumberiand treat it as giving a license only, that the Telephone & Telegraph Co., 224 U. S. 649, State was free to revoke. The defendants 663, 32 Sup. Ct. 572, 56 L. Ed. 934; Llanelly say that the words "there is hereby granted Ry. & Dock Co. v. London & Northwestern to the Trustees of the Cincinnati Southern Ry. Co., L. R. 8 Ch. 942, 950; Great NorthRailway, for the use of said railway, the use ern Ry. Co. v. Manchester, Sheffield & Linof that portion of the right of way of the colnshire Ry. Co., 5 De G. & Sm. 138. Western & Atlantic Railroad" &c., grant a right of way in fee. [6, 7] We think it unnecessary to refer to the language in detail beyond saying that [1-5] The Ohio statute under which the there is nothing in the statute to suggest Cincinnati Southern Railway was constructed an intent to limit the scope of the grant and by the City of Cincinnati provided for a that such expressions as "provided further, board of trustees to be appointed and kept filled by the Superior Court of the city, to that the grade adopted by the said Cincinhave control of the fund raised by the city, nati Southern Railroad along and over the and to acquire and hold all the necessary aforegranted right of way shall always be real and personal property and franchises the same as that of the Western & Atlantic either in Ohio or in any other State into Railroad," further confirms our interpretawhich the line of railroad should extend. tion, as does also the requirement of the Therefore the grant to the trustees was the consent of the lessees "as to the term of proper form for a grant in effect to the Rail- their lease," since those words imply that way, as it was styled in the title of the Geor- that grant is of something more that does gia act, or to the city if the city was in not require their assent. Elaborate discusstrictness the cestui que trust. No other sion of the circumstances seems to us sufacts of much importance appear. Considera- perfluous. But it is necessary to mention tions are urged on behalf of Georgia to show the objection that by the Constitution of that the motives for a perpetual grant were weak, but nothing that affects the construction of the words used or that shows that they are not to be given their ordinary meaning, as indeed the argument for the plaintiff agrees. But if that be true, cadit quæstio. A grant of the use of a right of way is the grant of a right of way in the ordinary meaning of words, and a grant of a right of way to a corporation or to perpetual trustees holding for the corporate uses does not need words of succession to be perpetual. words "and its successors" or "in fee" would not enlarge the content of a grant to a corporation. Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 66, 33 Sup. Ct. 988, 57 L. Ed. 1389; Detroit v. Detroit Citizens' Street Ry. Co., 184 U. S. 368, 395, 22 Sup. Ct. 410, 46 L. Ed. 592; *Great Northern Ry. Co. v. Manchester, Sheffield & Lincolnshire Ry. Co., 5 De G. & Sm. 138, 146. If a grantor wishes to limit the effect of words sufficient on their face to convey a fee it should express the limitation in the instrument. The purpose of the grant in this case, The to the track of the Western & Atlantic Railroad to leave the distance between the centers of tracks fourteen feet, and between the nearest rails of the Georgia (article 7, § 16) the general assem- (248 U. S. 23) KING v. PUTNAM INV. CO. two railroads nine feet: Provided always, that this (Submitted Nov. 7, 1918. Decided Nov. 18, grant is subject to the consent and approval of the lessees of the Western & Atlantic Railroad as to the term of their lease: Provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right-of-way shall always be the same as that of the Western & Atlantic Railroad. Sec. 2. Be it further enacted, That all Acts and parts of Acts inconsistent with this Act are hereby repealed. COURTS 1918.) No. 10. 399(2)-ERROR TO STATE COURTFEDERAL QUESTION-JURISDICTION. Writ of error to state court, based on a federal question being involved, because of a contract authorizing sale of land belonging to the United States covered by an inchoate home For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes stead entry, will be dismissed; the state court, Action by the Putnam Investment Company against H. C. King. Judgment for plaintiff was affirmed by the Supreme Court of Kansas (96 Kan. 109, 150 Pac. 559), and defendant brings error. Dismissed. decision of which by state Supreme Court is controlling with federal courts; no federal right being involved. 3. EMINENT DOMAIN 70-AMENDMENTS OF FEDERAL CONSTITUTION-APPLICABILITY TO STATE. As against act by the state, one cannot claim that he is deprived of property without compensation, in violation of Const. U. S. Amend. 5. 4. COURTS 391(3)-ERROR TO STATE COURT -FEDERAL QUESTION-JURISDICTION. No federal question being presented by the Mr. Lee Monroe, of Topeka, Kan., for plain- record, writ of error to state court will be dismissed by the court sua sponte. tiff in error. Mr. B. I. Litowich, of Salina, Kan., for defendant in error. In Error to the Supreme Court of the State of Ohio. Action by Albert Palmer and others against Memorandum for the Court by the CHIEF the State of Ohio. Judgment dismissing the JUSTICE. Having previously considered this case (82 Kan. 216, 107 Pac. 559; 87 Kan. 842, 126 Pac. 1093) the court awarded relief because of the violation of a contract of employment to pro cure the sale of real estate. 96 Kan. 109, 150 Pac. 559. petition was affirmed by the Supreme Court of the state (96 Ohio St. 513, 118 N. E. 102), and plaintiffs bring error. Dismissed. Messrs. John G. Romer, of St. Henry, Ohio, and T. F. Raudabaugh, of Celina, Ohio, for plaintiffs in error. Messrs. Clarence D. Laylin and Frank Davis, Jr., both of Columbus, Ohio, for the State of Ohio. The case is here in reliance upon a federal question based upon the assumption that the authority to sell included land belonging to the United States covered by an inchoate homestead entry. But the court below expressly found that such land was not includ-ion of the Court. ed in the contract, hence the sole basis for the asserted federal question disappears. And this result is not changed by considering, to the extent that it is our duty to do so, the question of fact upon which the existence of the alleged federal question depends. Northern Pac. R. R. Co. v. North Dakota, 236 U. S. 585, 593, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Creswill v. Grand Lodge K. P., 225 U. S. 246, 261, 32 Sup. Ct. 822, 56 L. Ed. 1074; Kansas City Southern R. R. Co. v. C. H. Albers Commission Co., 223 U. S. 573, 591, 32 Sup. Ct. 316, 56 L. Ed. 556. We so conclude because the result of discharging that duty leaves us convinced that the finding below was adequately sustained; indeed, that the record makes it clear that the alleged ground for the federal question was a mere afterthought. The case, therefore, must be and is Dismissed for want of jurisdiction. (248 U. S. 32) PALMER et al. v. STATE OF OHIO. 1. STATES 191(1)—ACTION BY INDIVIDUAL Right of individuals to sue a state can come only from consent of the state, and not from Constitution or laws of United States. 2. COURTS366(1)—FEDERAL COURTS-FOLLOWING DECISION OF STATE COURT-LOCAL LAW. Whether state Constitution gave consent of state to be sued is a question of local state law, *Mr. Justice CLARKE delivered the opin The plaintiffs in error sued the state of Ohio for damages for flooding lands by elevating the spillway of a state-maintained dam. The Supreme Court of the state affirmed the action of the lower courts in dismissing the petition on the ground that the state had not consented so to be sued, and we are asked to review this decision. The plaintiffs in error agree, as they must, that their suit cannot be maintained without the consent of the state, but they claim that such consent was given in an amendment to section 16 of article 1 of the state Constitution, adopted in 1912, which reads: "Suits may be brought against the state, in such courts and in such manner, as may be provided by law." The state Supreme Court held that this the General Assembly of the state having amendment is not self-executing, and that failed to designate the courts and the manner in which such suits might be brought, effective consent to sue had not been given. This decision, the plaintiffs in error claim, vaguely and indefinitely, somehow deprives them of their property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. [1, 2] The right of individuals to sue a state, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state. Beers v. State of Arkansas, 20 How. 527, 15 L. Ed. 991; Railroad Co. v. Tennessee, 101 U. S. 337, 25 L. Ed. 960; Hans v. Louisiana, 134 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |