and for such longer time as the lessee may for the negligence of its servants are af be permitted by the lessor to remain in pos- fected, in some degree, by similar considerasession; and contains no further agreements, tions. Southern Exp. Co. v. Caldwell, 21 other than those usual between lessor and Wall. 264, 269, 22 L. ed. 556, 558; Western lessee, except a covenant of the lessee not to U. Teleg. Co. v. Texas, 105 U. S. 460, 464, 26 obstruct or interfere with the railroad track L. ed. 1007, 1068; Primrose v. Western U. of the lessor, and an express condition of the Teleg. Co. 154 U. S. 1, 38 L. ed. 883, 14 Sup. lease and covenant of the lessee that the les- Ct. Rep. 1098; Western U. Teleg. Co. v. sor shall not be liable to the lessee for any Cook, 15 U. S. App. 445, 61 Fed. Rep. 624, 9 damage to the building or to personal prop- C. C. A. 680; Harkness v. Western Ū. Teleg. erty in or about it, by fire from the lessor's Co. 73 Iowa, 190, 34 N. W. 811. locomotive engines, or by trains or cars running off the railroad track, although owing to the negligence of the lessor or its servants. The indenture contains no stipulation concerning, or even any mention of, any transcy of his own faulty conduct. But the only portation of goods over the railroad, or any relation of the railroad company as a common carrier to the lessee or to the public; and there is nothing in the record to show that such a relation existed between the railroad company and the lessee, or that the warehouse was built or maintained for the benefit of the public, or of the railroad corporation, or of anyone but the partnership. The decision of the case turns upon the question whether the provision of this indenture, by which the railroad company is not to be liable for damage to the property by fire from its locomotive engines, owing to the negligence of itself or its servants, is void as against public policy. The plaintiffs' counsel at the argument much relied on the cases in which similar provisions in the contracts of common carriers or of telegraph companies have been held to be void. The plaintiffs further insisted that the same reasons apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the merauthorities cited which support this proposi. tion are a general statement in Cooley on Torts, 687, and an obiter dictum in Johnson v. Richmond & D. R. Co. 86 Va. 975, 978, 11 S. E. 829; and it is certainly too sweeping. Even a common carrier may obtain insurance against losses occasioned by the negligence of himself or of *his servants, or may, [99] by stipulation with the owner of goods carried, have the benefit of such insurance procured thereon by such owner. Phoenix Ins. Co. v. Eric & W. Transp. Co. 117 U. S. 312 29 L. ed. 873, 6 Sup. Ct. Rep. 750, 1176; California Ins. Co. v. Union Compress Co. 133 U. S. 387, 414, 33 L. ed. 730, 737, 10 Sup. Ct. Rep. 365; Wager v. Providence Ins. Co. 150 U. Ŝ. 99, 37 L. ed. 1013, 14 Sup. Ct. Rep. 55. to be occupied by others with structures convenient for the receiving and delivering of freight upon its railroad, so long as a free and safe passage is left for the carriage of freight and passengers. Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356. And it must provide reasonable means and facilities for receiving goods offered by the public to be transported over its road. Covington Stock-Yards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73, 11 Sup. Ct. Rep. 461 But it is not obliged, and cannot even be compelled by statute, against its will, to permit private persons or partnerships to erect and maintain elevators, warehouses, or similar structures for their own benefit, upon the land of the railroad company. Missouri P R. Co. v. Nebraska, 164 Ù. S. 403, 41 L. ed 489, 17 Sup. Ct. Rep. 130. A railroad corporation holds its station grounds, railroad tracks, and right of way for the public use for which it is incorporatIt is settled by the decisions of this court ed, yet as its private property, and to be octhat a provision in a contract between a cupied by itself or by others in the manner [98] railroad corporation and the owner of goods which it may consider best fitted to proreceived by it as a common carrier, that it mote, or not to interfere with, the public shall not be liable to him for any loss or in-use. It may, in its discretion, permit them jury of the goods by the negligence of itself or its servants, is contrary to public policy, and must be held to be void in the courts of the United States, without regard to the decisions of the courts of the state in which the question arises. But the reasons on which those decisions are founded are that such a question is one of general mercantile law; that the liability of a common carrier is created by the common law, and not by contract; that to use due care and diligence in carrying goods intrusted to him is an essential duty of his employment which he canrot throw off; that a common carrier is under an obligation to the public to carry all goods offered to be carried, within the scope and capacity of the business which he has held himself out to the public as doing; and that, in making special contracts for the carriage of such goods, the carrier and the customer do not stand on equal terms. New York C. R. Co. v. Lockwood, 17 Wall. 357. 21 L. ed. 627; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397. 439-442, 32 L. ed. 788, 791, 792, 9 Sup. Ct. Rep. 469, and other cases there cited. Although a telegraph company is not a common carrier, yet its relation with senders of messages over its lines is of a commercial nature, and contracts that the company shall not be liable In In the case at bar no one had the right to put a warehouse or other building upon the land of the railroad corporation without its consent; and the corporation was under no obligation to the public, or to the partnership, to permit the latter to do so. granting and receiving the license from the corporation to the partnership to place and maintain a cold-storage warehouse upon a strip of such land by the side of the railroad track, and in erecting the warehouse there on, both parties knew that its proximity to the track must increase the risk of damages, whether by accident or by negligence, to the warehouse and its contents, by fire set by sparks from the locomotive engines, or by trains or cars running off the track. Tho principal consideration, expressed in their contract, for the license to build and main[100]tain the warehouse on this strip *of land, was the stipulation exempting the railroad company from liability to the licensee for any such damages. And the public had no in terest in the question which of the parties to the contract should be ultimately respon sible for such damages to property placed on the land of the corporation by its consent only. the state; and it is within the undisputed[101] powers of that legislature to prescribe the precautions that the corporation shall take to guard against injuries to the property of others by the running of its trains, as well as the measure of its liability in case such injuries happen. Among the most familiar instances of the exercise of this power are statutes requiring a railroad corporation to erect fences between its road and adjoining lands, and subjecting it to either single or double damages for any injury to cattle or other animals caused by its neglect to do so (Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364, 37 L. ed. 769, 13 Sup. Ct. Rep. 870); and statutes making a railroad corporation liable for damages to property of others from fire set by sparks from its locomotive engines, either independently of negligence on its part, or in case of such negli gence only. St. Louis & S. F. R. Co. v. Ma thews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. Ct. Rep. 243; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 699. The case is wholly different from those cited by the plaintiffs, in which a lease by a railroad corporation, transferring its entire property and franchises to another corpora tion, and thus undertaking to disable itself from performing all the duties to the public imposed upon it by its charter, has been held to be ultra vires, and therefore void,—as in Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950, and in Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct. Rep. 478, and 171 U. S. 138, 43 L. ed. 108. 18 Sup. Ct. Rep. 808. As was well said by the circuit court, in Questions of public policy as affecting the the case at bar, in a passage quoted by this liability for acts done, or upon contracts court in St. Louis & S. F. R. Co. v. Mathews, made and to be performed, within one of the just cited: "The right to use the agencies states of the Union,-when not controlled by of fire and steam in the movement of railway the Constitution, laws, or treaties of the trains in Iowa is derived from the legisla United States, or by the principles of the tion of the state; and it certainly cannot be commercial or mercantile law or of general denied that it is for the state to determine jurisprudence, of national or universal ap- what safeguards must be used to prevent the plication, are governed by the law of the escape of fire, and to define the extent of the state as expressed in its own Constitution liability for fires resulting from the operaand statutes, or declared by its highest court. tion of trains by means of steam locomo Elmendorf v. Taylor, 10 Wheat. 152, 159, 6 tives. This is a matter within state control. L. ed. 289, 292; Bank of Augusta v. Earle. The legislation of the state determines the 13 Pet. 519, 594, 10 L. ed. 274, 310; Vidal v. width of the right of way used by the comPhiladelphia, 2 How. 127, 197, 11 L. ed. 205 panies. The state may require the compa233; Bucher v. Cheshire R. Co. 125 U. Snies to keep the right of way free from com555, 581, 584, 31 L. ed. 795, 798, 799, 8 Sup bustible material. It may require the deCt. Rep. 974; Detroit v. Osborne, 135 U. S. pot and other buildings used by the com 492, 498, 499, 34 L. ed. 260, 262, 10 Sup. Ct.pany to be of stone, brick, or other like maRep. 1012; Union Nat. Bank v. Bank of terial, when built in cities, or in close proxKansas City, 136 U. S. 223, 235, 34 L. ed. imity to other buildings. The state, by leg 341, 345, 10 Sup. Ct. Rep. 1013; Etheridge islation, may establish the extent of the liav. Sperry, 139 U. S. 266, 276, 277, 35 L. ed. bility of railway companies for damages re 171, 176, 11 Sup. Ct. Rep. 565; Gardner v sulting from fires caused in the operation of Michigan C. R. Co. 150 U. S. 349, 357, 37 the roads. 62 Fed. Rep. 907." 165 U. S. 17, L. ed. 1107, 1109, 14 Sup. Ct. Rep. 140;41 L. ed. 617, 17 Sup. Ct. Rep. 243. Bamberger v. Schoolfield, 160 U. S. 149, 159, 40 L. ed. 374, 378, 16 Sup. Ct. Rep. 225; Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474, 19 Sup. Ct. Rep. 179; Sioua City Terminal R. & Warehouse Co. v. Trust Co. of N. A. 173 U. S. 99, 43 L. ed. 628, 19 Sup. Ct. Rep. 341. The validity of the agreement now in controversy does not depend upon the Constitution, laws, or treaties of the United States, or upon any principle of the commercial or mercantile law, or of general jurisprudence. Generally speaking, the right of a railroad corporation to build its road and to run its locomotive engines and cars thereon, within any state, is derived from the legislature of The statutes and decisions of the state of Iowa, so far as they have been brought to[102] our notice, that throw any light upon the present case, are the following: In Richmond v. Dubuque & S. C. R. Co. (1868) 26 Iowa, 191, the railroad company leased a piece of ground at its eastern ter minus on the bank of the Mississippi river to an elevator company; and it was agreed between them that the elevator company should maintain an elevator building thereon, and should receive and discharge for the railroad company, at certain rates, all grain brought over the railroad, shipped primarily to points beyond or other than Dubuque, and should have the handling of all such grain; 202. and that the railroad company, during the 30 Iowa, 78, 6 Am. Rep. 643; Gandy v. Chilease, would not itself erect, or lease or grant cago & N. W. R. Co. (1870) 30 Iowa, 420, 6 to any other party the right to erect, a simi- Am. Rep. 682; McCummons v. Chicago & N. lar building in Dubuque. The railroad W. R. Co. (1871) 33 Iowa, 187; Garrett v. company, being sued on the agreement, con- Chicago & N. W. R. Co. (1872) 36 Iowa, 121. tended that it was in contravention of sound Thereupon the legislature amended the secpublic policy, as giving to the elevator com- tion above cited by adding a provision that pany a monopoly of all the through grain "any corporation operating a railway shall brought over the railroad. But the supreme be liable for all damages by fire that is set court of Iowa held the agreement to be out or caused by operating of any such rail. valid, and, in the course of its opinion, said: way; and such damage may be recovered by "The elevator is mainly a means or instru the party damaged, in the same manner as mentality for loading and unloading grain set forth in this section in regard to stock, into and out of cars, boats, barges, or other except to double damages." Code 1873, § vehicles, and, incidentally, for storing the 1289. This amendment was at first assame; it is in no just sense a connecting line sumed to impose an absolute liability upon of transit or connecting common carrier to the corporation, independently of its negli the defendants' lines." 26 Iowa, 197. gence, and was held to be constitutional. "The power of courts to declare a contract Rodemacher v. Milwaukee & St. P. R. Co. void for being in contravention of sound pub (1875) 41 Iowa, 297, 20 Am. Rep. 592. But lic policy is a very delicate and undefined it was afterwards settled, upon a considerapower, and, like the power to declare a stat- tion of the whole section, that the effect of ute unconstitutional, should be exercised the amendment was only to change the buronly in cases free from doubt." 26 Iowa, den of proof in actions *for damages by fire;[104] that the fact that the fire was set out or The statute of Iowa of 1862, chap. 169, caused by operating the railway was only 6(substantially re-enacted in the Code of prima facie evidence of negligence on the 1873, § 1289), provided that "any railroad part of the company; and that such neglicompany hereafter running or operating its gence need not be alleged. Small v. Chicago, road in this state, and failing to fence such R. I. & P. R. Co. (1879) 50 Iowa, 338; Babcock road on either or both sides thereof, against v. Chicago & N. W. R. Co. (1883) 62 Iowa, live stock running at large, at all points 593, 13 N. W. 740, 17 N. W. 909; Seska v. where said roads have the right to fence, Chicago, M. & St. P. R. Co. (1889) 77 Iowa, shall be absolutely liable to the owner of any 137, 41 N. W. 596; Engle v. Chicago, M. & live stock injured, killed, or destroyed by St. P. R. Co. (1889) 77 Iowa, 661, 37 N. W. reason of the want of such fence or fences as 6, 42 N. W. 512. It was also held that, by aforesaid, for the value of the property so virtue of the statute, contributory negli injured, killed, or destroyed, unless the in- gence on the part of the plaintiff was no dejury complained of is occasioned by the wil-fense to such an action. West v. Chicago [103]ful act of the owner or his agent;" that, "in & N. W. R. Co. (1889) 77 Iowa, 654, 35 N. order to recover, it shall only be necessary W. 479, 42 N. W. 512, Engle's Case, just for the owner of the property to prove the in-cited. jury or destruction complained of;" and that, if the company should neglect to pay for thirty days after notice and affidavit, the owner might recover double damages. Under that statute it was held to be no defense that the stock was unlawfully running at large, if not by the wilful act of the owner or his agent. Spence v. Chicago & N. W. R. Co. (1868) 25 Iowa, 139. But where the owner of land had agreed to maintain a fence between it and the railroad, the court, while holding that persons not in privity of estate with him might still recover, said that it could not be doubted that he and his privies were estopped by his agreement to maintain an action against the company under that statute. Warren v. Keokuk & D. M. R. Co. (1875) 41 Iowa, 484, 486. Upon the question of the liability of a railroad corporation for damage done to the property of others by fire from its locomotive engines, in the absence of any contract between the parties, the course of legislation and decision in Iowa was as follows: Before any statute upon the subject, the corporation was held not to be liable without proof of negligence on its part, or if the plaintiff's own negligence contributed to the loss. Kesee v. Chicago & N. W. R. Co. (1870) The Code of Iowa of 1873, in § 1308, reenacting the statute of Iowa of 1867, chap. 113, provided that "no contract, receipt, rule, or regulation shall exempt any corporation engaged in transporting persons or property by railway from liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule, or regu lation been made or entered into." That statute was rigidly enforced by the supreme court of Iowa in suits against railroad corporations as carriers. Brush v. Sabula, A. & D. R. Co. (1876) 43 Iowa, 554; McCoy v. Keokuk & D. M. R. Co. (1876) 44 Iowa, 424. But no intimation that it applied to them in any other relation was ever made by that court before the execution of the agreement in question in the case at bar. 1, To recapitulate: Before February 1890, the date of this agreement, the supreme court of Iowa had declared that an elevator erected by another party by agreement with a railroad company upon the land of the latter was in no just sense a connecting line of transit, or a connecting common carrier, with the line of the railroad; and that the power of the courts to declare a contract void for being in contravention of public policy should be exercised only in 175 U. S. "Public cases free from doubt. That court, in 1875, | when construing § 1289 of the Code of 1873, had declared that an action under the first part of that section, which makes a railroad corporation failing to fence its road wherever it had a right to do so absolutely liable to an action by the owner of any live stock [105]killed or injured by the want of such feneing, could not be maintained by an owner of adjoining land who had agreed with the railroad company to maintain the fence at the place in question. And that court had never expressed any opinion upon the effect of such an agreement as is now pleaded upon an action against a railroad company, under the latter part of that section, for damages by fire caused by the negligence of its serv-istering Co. v. Sampson, L. R. 19 Eq. 462, ants in operating its railway. In the first place, it was said: policy is variable; the very reverse of that which is the policy of the public at one time may become public policy at another; hence no fixed rule can be given by which to determine what is public policy. The authorities all agree that a contract is not void as against public policy, unless it is injurious to the interests of the public, or contravenes some established interest of society." So far, the opinion is in precise accord with the opinion of this court in Pope Mfg. Co. v. Gormully, 144 U. S. 224, 233, 36 L. ed. 414, 418, 12 Sup. Ct. Rep. 632. The Iowa court then quoted with approval the saying of Sir George Jessel, M. R., in Printing & N. Reg465: "It must not be forgotten that you are After this agreement was made, and be- not to extend arbitrarily those rules which fore this action was begun, a similar agree- say that a given contract is void as being ment was brought before the courts of the against public policy, because, if there is one state of Iowa, in the case of Griswold v. Illi- thing more than another which public policy nois C. R. Co., which arose under a contract requires, it is that men of full age and comsubstantially similar to that now before us, petent understanding shall have the utmost except in containing covenants by the lessee liberty of contracting, and that their conto put in immediate use and to maintain a tracts, when entered into fairly and volungood and substantial elevator, coal sheds, tarily, shall be held sacred, and shall be enand lumber yard on the premises; to ship forced by courts of justice. Therefore you all grain, coal, and lumber that he can conhave this paramount public policy to considtrol by the lessor's railroad; and to "trans-er, that you are not lightly to interfere act the business for which said buildings are erected and designed at fair and reasonable rates, and in a prompt and careful manner, so that neither the company nor the public will be prejudiced by reason of the said lessee dealing unfairly or negligently in their behalf, or in the transaction of the business connected with the grain, coal, and lumber buildings so erected as aforesaid." A district court of the state having upheld the validity of the contract, and rendered judgment for the defendant, the plaintiff ap pealed to the supreme court of the state. with this freedom of contract." That court went on to say: "The defendant owed no duty to the public to exercise care with respect to its own buildings situate on its right of way, and incurred no liability for their negligent burning, unless the fire spread beyond its own premises. The operation of a railway increases the danger from fire to property situated on the premises of its owner, where he has the right to have it, and hence the provision of § 1289 making the ly liable for all damages by fire that is negli corporation operating the railway *absolute-[107] That court, at the first hearing, expressed gently set out or caused by the operation of an opinion that the stipulation in the conthe railway. As to such property, the railtract, exempting the railroad company from way company owes to the public the duty of liability to the lessee for damages by fire care, and the public has an interest in the negligently set by its locomotive engines to performance of that duty. Therefore a consuch buildings, was void as against public tract that exempts from that duty to the policy; and among the grounds on which public would be injurious to the public inthat opinion was placed was that the cove- terests, and against public policy. The nants just quoted, and the prospect for busi- plaintiff Griswold's buildings were not upon ness which the existence and use of those his own premises, nor where he had a right buildings held out to the railroad company, to have them, independent of the defendant; "were no doubt the controlling considera- they were upon the right of way, where they tion which induced it to execute the lease," could only be by its permission. In granting and that "the lease itself fully recognizes an the permission, and in placing the buildings interest of the public in its subject-matter." there, both parties knew of the increased 53 N. W. 295, 297. It does not clearly ap-hazard of the location from fire communicat[106]pear what that opinion would have been but for those covenants, no equivalent for which is to be found in the lease now before us. But that court granted a rehearing, and on February 3, 1894, after further arguments, and, by a majority of the judges, reversed its former opinion, affirmed the judgment of the district court, and held the stipulation in question to be valid. 90 Iowa, 265, 24 L. R. A. 647, 57 N. W. 843. Its course of reasoning may be shown by quoting some passages of the opinion. ed either through accident or negligence in the operation of the road. They knew that the defendant corporation could only act through its officers, agents, and employees, and that these might be negligent in the performance of their duties." "This is not a question whether, under § 1289, the defendant would be liable to Griswold for negligently communicating fire to this property in the absence of a contract to the contrary; but it is whether the public has any interest that this contract contravenes. It seems to PANY, Appt., บ. CITY OF MOBILE. (See S. C. Reporter's ed. 109-114.) Motions to dismiss or affirm-color for mo- 1. us now quite clear that, as these buildings | *BIENVILLE WATER SUPPLY COM.[109] could only be placed upon the defendant's right of way by its consent, and were so placed upon the premises, and on the conditions expressed in the lease, the public had no interest therein, under said § 1289 or otherwise, that would be injured by giving effect to the agreement in question. Much as the public may have been interested in the convenience of such a place of business, it had no interest as to who should carry the hazard incident to that property being located as it was." "Upon further consideration we are of the opinion that this contract was not made by the defendant in its capacity as a common carrier, and that the provision of 1308 is not applicable." "After a careful review of the case, we reach the conclusion that the public had no interest in the clause of the contract in question, that its enforcement works no injury to any interest of the public, and that the judgment of the Submitted October 10, 1899. Decided Nodistrict court should be affirmed." [108] *A second petition for rehearing was then filed, and that case had not been finally decided by the supreme court of Iowa when the present case came before the circuit court of the United States at April term, 1894. The circuit court thereupon suspended judgment in this case; and at September term, 1894,the state court having meanwhile denied the second petition for a rehearing, and thereby finally affirmed the validity of the stipulation, followed the final decision of that court, and gave judgment for the defendant. 62 Fed. Rep. 904. The first opinion of the supreme court of the state of Iowa in the case of Griswold v. Illinois C. R. Co. was delivered after the agreement now in question was made. The final decision in that case, reversing the former opinion, was made after repeated arguments and full consideration; was no wise inconsistent, to say the least, with the decision or the opinion of that court in any other case; and was rendered before the case at bar was decided in the circuit court of the United States. Under such circumstances, that decision, being upon a question of statutory and local law, was rightly followed by the circuit court. Rowan v. Runnels, 5 How. 134, 139, 12 L. ed. 85, 87; Morgan v. Curtenius, 20 How. 1, 15 L. ed. 823; Fairfield v. Gallatin County, 100 U. S. 47, 52, 25 L. ed. 544, 546; Burgess v. Seligman, 107 U. S. 20, 35, 27 L. ed. 359, 365, 2 Sup. Ct. Rep. 10; Bauserman v. Blunt, 147 U. S. 647, 653-656, 37 L. ed. 316, 318, 319, 13 Sup. Ct. Rep. 466, and cases there cited; Williams v. Eggleston, 170 U. S. 304, 311, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617; Sioux City Terminal R. Warehouse Co. v. Trust Co. of N. A. 173 U. S. 99, 43 L. ed. 628, 19 Sup. Ct. Rep. 341; Wade v. Travis County, 174 U. S. 499, 43 L. ed. 1060, 19 Sup. Ct. Rep. 765. The judgment of the Circuit Court of Appeals, affirming the judgment of the Circuit Court, is therefore affirmed. 2. A bill invoking the jurisdiction of the circuit court of the United States on the ground that the case arises under the Constitution of the United States by reason of the violation and impairment of a contract will be dismissed when it does not aver facts to show such violation. On motives to dismiss or affirm a decree by which a bill was dismissed for lack of jurisdiction, which was not error, there being color for the motion to dismiss, the motion to affirm will be sustained. [No. 368.] vember 6, 1899. APPEAL from a decree of the Circuit See same case below, 95 Fed. Rep. 589. Messrs. B. B. Boone and E. L. Russell *Mr. Chief Justice Fuller delivered the[110] opinion of the court: cuit court of the United States for the southThis was a bill in equity filed in the cirern district of Alabama, by the Bienville Water Supply Company against the city of Mobile and its mayor, to enjoin defendants from making or carrying out any contract for supplying water to the inhabitants of the city or for constructing a system of waterworks for that purpose during the continuance of certain contracts between complainant and the city, made parts of the bill, and from building or acquiring a system of waterworks to bring water into the city during such continuance. The parties were all citizens of Alabama, but complainant invoked the jurisdiction of the circuit court on the ground that the case was one arising under the Constitution of the United States, in that the contracts between it and the city were violated and impaired in the premises. Defendants demurred, assigning special causes, among which were the following: tion with Exhibits 'A' and 'B,' made a part "(1) Because said bill, taken in connecthereof, 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 Mo bile. |