Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co.

after stating the case as above,-, delivered the opinion of the court.

As we have said, a motion was made to dismiss the bill. The grounds of the motion were that there was no jurisdiction in the court, the controversy not arising under the Constitution and laws of the United States, and that the bill did not state facts sufficient to constitute a cause of action against defendants or either of them.

There is an assertion, in words, of rights under the Constitution of the United States, and the only question now presented is whether the assertion is justified by the allegations of the bill. Putting the question concretely, or rather the contention which constitutes its foundation, the District Court said, “The contention of the plaintiff is that' by virtue of its charter, it has appropriated the potentialities of the river and its tributaries within the boundaries by it designated in its resolution of improvement, and that it is entitled, because of its incorporation under the general laws of the State, to exclude any use of the water power of these streams of the nature of the use which it anticipates enjoying in the future while it proceeds, however dilatorily, to make its improvements in detail and to complete its ambitious scheme. In brief, its proposition is that its charter is equivalent to a contract with the State of Ohio giving it the exclusive right to the employment of the benefits which nature has conferred upon the public through the forces of these streams to the end that, until it finds itself able to completely occupy all the territory which it has privately designated to be necessary for its use, the public shall not have the advantage of any portion not immediately occupied by it through the employment of the resources thereof by another public utility company. ”

The court rejected the contention holding that it was not tenable under the law and constitution of Ohio. To

We concur with the District Court both in its reasoning and its deductions from the cited, cases. The contention of plaintiff is certainly a bold one and seemingly erects into'a legal principle, that unexecuted intention, or partly executed intention, has the same effect as execrated intention, and that the declaration of an enterprise gives the same right as its consummation. Of course, there must be a first step in every project as well as a last step, and in enterprises like those we are considering there may be attainment under the local law of a right invulnerable to opposing assertion. And this plaintiff contends. To be explicit it contends that as against the Power Company and the Traction Company, they being its competitors in the same field of enterprise, its resolution of June 4, 1.908, constituted an appropriation of the waters of the river, and a definite.location of “its proposed improvement for that- purpose upon specifically described parcels, of land previously entered upon and surveyed by its engineers. ” Whether the

It is manifest, therefore, that the determining and effective element of the contention is the charter of the State, and plaintiff has proceeded in confidence in it against adverse adjudications. One of the adjudications is Sears v. City of Akron, supra. The elemental principle urged here was urged there, that is, there was urged there as here, that the charter of the company constituted a contract with the State, and that the contract was to a conclusive effect executed by the resolution of the board of directors of plaintiff on June 4, 1908, such resolution constituting an appropriation of >the lands described therein, they being necessary to be acquired in order to construct and maintain the improvement specified in the plaintiff’s charter and resolution. The principle was rejected and it was decided that the incorporation of plaintiff was not a. contract by the State with reference to the riparian rights, and that if plaintiff acquired riparian rights or specific rights in the use and flow of the water, that “would, be property acquired under the charter, not contract ri&ats expressed or implied in the grant of the charter.”

The case is determinative of the plaintiff’s contention here, and it is manifest if plaintiff has any rights, they

The court, therefore, was considerate of the elements of the case and of plaintiff’s rights both against defendants as rival companies or as land owners, and necessarily, as we have said, if either or both of them b'e regarded as involved in the case, its or their assertion cannot be made in a federal court unless there be involved a federal question. And a federal question not in mere form but in substance, and not in mere assertion, but in essence and effect. The federal questions urged in this case do not satisfy the requirement. The charter as a contract is the plaintiff’s reliance primarily and ultimately. Independent of that it has no rights or property to be taken, that is,' independently of the resolution of June 4, 1908, there was no appropriation or condemnation of the land. Wagner v. Railway Co., 38 Ohio St. 32 .

Having nothing independently of its charter and the resolution of June 4, 1908, it could be divested of nothing and it must rely upon the assertion of a contract and the impairment of it by the State or some agency of the State exercising the State’s legislative power. That there is such agency is the contention, but what it is exactly it is not easy to say. We, however, pick out of the confusion of the bill, with the assistance of plaintiff’s brief, that the rights

~ It is manifest that there was no state legislátive or other action against any charter rights which plaintiff possessed. What the Traction Company may, or does claim, cannot be attributed to the State (its incorporation antedated that of plaintiff), and it would be a waste of words to do more than say that the incorporation of plaintiff under the general laws of the State did not preclude the incorporation of the Power Company under the same general laws. What rights, if any, the Power Company thereby acquired against plaintiff is another question.' There remains then, only the order of the Public Utilities Commission, authorizing the conveyance by the Power Company of the latter’s rights and franchises to the Traction Company, to complain of as an impairment, of plaintiff’s asserted contract. But here again wo are not disposed to engage in much discussion. The. Commission’s order may or may not have been the necessary condition to a conveyance by the Power Company of whatever rights it had to the Traction Company. (§ 614-60, Page and Adams Ohio General

From every federal constitutional standpoint, therefore, the contentions of plaintiff are so obviously without merit as to be colorless and whatever controversies or causes of action it had were against the defendant companies as rivals in eminent domain, or as owners of the lands, and, diversity of citizenship not existing, the District Court of the United States had no jurisdiction.

Decree affirmed.

Mr: Justice Day and Mr. Justice Clarke took no part in the consideration or decision of this case.