BOISE ARTESIAN HOT AND COLD WATER COMPANY, LIMITED,
v.
BOISE CITY
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The Boise Artesian Hot and Cold Water Company challenged a Boise city ordinance imposing license fees for the use of city streets, arguing the ordinance violated federal constitutional protections for previously granted street easements. The Supreme Court dismissed the writ of error because the case involved only diversity jurisdiction, and once a constitutional question arose during litigation, the unsuccessful party could appeal to either the Supreme Court directly or the Circuit Court of Appeals, but not both—and the company's choice to appeal to the Circuit Court of Appeals precluded further review by the Supreme Court.
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Mr. Justice Lurton delivered the opinion of the court.
This is a writ of error seeking to review a judgment of the Circuit Court of Appeals of the Ninth Circuit, reversing and remanding for a new trial a judgment of the Circuit Court for the District of Idaho, for “license fees” or rentals claimed to be due:to Boise City under ordinance No. 678, which had accrued prior to the claim involved in cases Nos. 573 and 639, argued with this case and disposed of by an opinion just handed down.
This writ of error must be dismissed. The jurisdiction of the Circuit Court, as shown by the plaintiff’s pleading, depended upon diversity of citizenship, and upon that ground the Water Company removed the action from the state court to the Circuit Court of the United States. One of the defenses of the Water Company, asserted, in its answer, was that it had by purchase and agreement, succeeded to grants to street easements which had not. expired, and that ordinance No. 678 of June 7, 1906, imposing upon it a license fee or rental for the use and occupation of the streets of the city with its pipes and appliances for the distribution of water, was in derogation of the street rights theretofore granted, and void as in contravention of Article I, § 10 of the Constitution of the United States, and in violation of the Fourteenth Amendment thereto:- This claim was denied and the ordinance held valid. Upon that and other issues in the case the Circuit Judge found for the plaintiff, the facts being stipulated and a jury waived. The case was therefore one in which jurisdiction had been invoked wholly upon diversity of citizenship, but in the course of the case there arose a question as to the constitutionality of the ordinance which was the foundation of the plaintiff’s right. The unsuccessful party had, therefore, a right, to bring the case direct to this court, or, at its election, carry it to the Circuit Court of Appeals. It elected the latter course. The Circuit Court of Appeals might have certified the question to this court, or it might decide it along with the other questions in the case. But from its judgment no writ of error will lie to this court, as the Judiciary Act of 1891 does not contemplate two reviews, one by the Circuit Court of Appeals and another by this court in such cases. Robinson v. Caldwell, 165 U. S. 359; Loeb v. Columbia Township, 179 U. S. 472; Macfadden v. United States, 213 U. S. 288.
For this reason the writ of error must be dismissed.
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Alaska Pacific Fisheries v. Territory of Alaska, 249 U.S. 53 (U.S. 1919)…its judgment final. Macfadden v. United States, 213 U. S. 288; Robinson v. Caldwell, 165 U. S. 359; Loeb v. Columbia Township Trustees, 179 U. S. 472; American Sugar Refining Co. v. New Orleans, 181 U. S. 277; Boise Water Co. v. Boise City, (No. 2), 230 U. S. 98. Under the original Alaska Act, cases involving the application of the Constitution were directly reviewable in this court, and those reviewable by the Circuit Court of Appeals for the Ninth Circuit were by the terms of thé act made final in that c…
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Lamar v. United States, 254 U.S. 616 (U.S. 1920)…s for the Second Circuit. Motion to dismiss submitted December 6, 1920. Decided December 13, 1920, Per Curiam. Dismissed for want of jurisdiction upon the authority of Macfadden v. United States, 213 U. S. 288. And see Boise Water Co. v. Boise City, 230 U. S. 98, 100; Chott v. Ewing, 237 U. S. 197; Alaska Pacific Fisheries v. Alaska, 249 U. S. 53, 60-61. Mr. Elijah N. Zoline for r laintiffs in error. The Solicitor General and Mr. Henry S. Mitchell for the United States.…
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Wheeler v. City & Cnty. of Denver, 245 U.S. 626 (U.S. 1917)…er Union Water Co., 229 U. S. 123; Wheeler v. City and County of Denver, 229 U. S. 342, 352; (2) Robinson v. Caldwell, 165 U. S. 359; Loeb v. Columbia Township, 179 U. S. 472; Macfadden v. United States, 213 U. S. 288; Boise Water Co. v. Boise City, 230 U. S. 98.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Loeb v. Columbia Twp. Trs., 179 U.S. 472 (U.S. 1900)
- MacFadden v. United States, 213 U.S. 288 (U.S. 1909)
- Robinson v. Caldwell, 165 U.S. 359 (U.S. 1897)