ed; and the said gas companies, gaslight and coke companies, shall thereafter be forever precluded from using or occupying any of the streets not already furnished with gas pipes of such companies; and such city council may have the right to open any street for the purpose of conveying gas as aforesaid. Sec. 32. That a neglect to furnish gas to the citizens or other consumers of gas, or to any city, by such companies, in conformity to the preceding section of this act, and in accordance with the prices fixed and established by ordinance of such city council, from time to time, shall forfeit all rights of such company under the charter by which it has been established; and any such city council may hereafter proceed to erect, or by ordinance empower any person or persons to erect, gasworks for the supply of gas to such city and its citizens, as fully as any gaslight or gaslight and coke company can now do, and as fully as if such companies had never been created." Curwen St. c. 1248, pp. 2153, 2164, 2165; 51 Ohio Laws, 360.

Another act was passed April 5, 1854, empowering the city council to fix from time to time, by ordinance, the minimum price at which it would require the company to furnish gas for any period not exceeding 10 years; and providing that from and after the assent of the company to such ordinance, by written acceptance thereof, filed in the clerk's office of the city, it should not be lawful for the council to require the company to furnish gas to the citizens, public buildings, public grounds, or public lamps of the city at a less price during the period of time agreed on, not exceeding 10 years. That act, it was declared, should not operate to impair or affect any contract theretofore made between any city and any gaslight or gaslight and coke company. It was further provided: "Sec. 2. That the city council of such city may, at any time after the default mentioned in the thirty-first section of the act to which this is supplementary, (chapter 1248, p. 2164,) by ordinance permit such gas company to use and occupy the streets of such city for the purpose of lighting the same, and furnishing the gas to the citizens and public buildings. Sec. 3. That any temporary failure to fur- | nish gas shall not operate as a forfeiture, under the thirty-second section of the act to which this is supplementary, unless such failure shall be by neglect or misconduct of such gaslight or gaslight and coke company: provided, that such company shall, without unnecessary delay, repair the injury, and continue to supply such gas." Curwen St.

c. 1248, p. 2164; 52 Ohio Laws, 30. When the municipal laws of Ohio relating to gas companies were revised and codified in 1869, the above provisions were retained without material alteration, and now appear in the Revised Statutes of Ohio. 66 Ohio Laws, tit. "Municipal Code," 145, 149, 218, 219, §§ 415-423; 1 Rev. St. Ohio, tit. 12, div. 8, c. 3, p. 637 et seq.

But this revision and codification contained

a provision not appearing in any previous statute, and now constituting section 2486 of the Revised Statutes of Ohio. That section is in these words:

"Sec. 2486. The council of any city or village shall have power, whenever it may be deemed expedient and for the public good, to erect gas works at the expense of the corporation, or to purchase any gas works already erected therein."

By an ordinance of the city of Hamilton, passed July 9, 1855, the appellant was au thorized to place pipes in streets, lanes, alleys, and public grounds to convey gas for the use of the city and its inhabitants; the company to have "the exclusive privilege of laying pipes for carrying gas in said city, and of putting up pipes in dwellings in connection with the street pipes for the term of twenty years from the passage of this ordinance;" but not to charge for gas furnished the city or its inhabitants a price greater than, during the period of the contract, was usually charged in cities of similar size and with like facilities for the making and furnishing of gas. The company, from time to time, as required by the city, placed lampposts at the points indicated by resolutions passed by the council.

Written contracts were made, from time, to time, between the parties, for lighting the city. The first one was dated April 10, 1862. The last one was dated July 16, 1883, and expired, by its terms, January 1, 1889.

On the 2d day of January, 1889, the council passed a resolution reciting the termination of the last contract, and declaring that the city no longer desired the company to furnish gas for lighting streets and public places, and would not, after that date, pay for any lighting furnished or attempted to be furnished by the company, which was forbidden the use of the lamp posts and other property of the city, and notified to remove without delay any attachment or connection theretofore maintained with the city's lamp posts and other property. The company, having been served with a copy of this resolution, protested against the validity of this action of the city. In a written protest, addressed to the council, it announced that its gas mains, filled with gas, extended throughout all the streets, etc., as theretofore designated and required by the city; "that all said mains are connected with your lamp posts, lamps, and the burners thereon, and are all ready and fit for the purpose for which they were constructed and connected, and that this company is ready now and at all times to supply all the gas needed for the wants of your city and its inhabitants, and will furnish the same upon notice from you. company owns the mains through which such gas is furnished and distributed for said public and private lighting; you own the lamp posts, lamps, and burners connected therewith."

This

The city, January 4, 1889, passed an ordinance looking to the issuing (such issuing

being first approved by the popular vote) of | bonds for the purpose of itself erecting works to supply the city and its inhabitants with gas.

The present suit was thereupon commenced by the company. The relief asked was a decree perpetually enjoining the city from disconnecting its lamp posts from the company's mains, or from lighting the city by any means or process other than that of the plaintiff's gas, as well as from issuing bonds for the purpose of erecting gas works, or for the purpose of providing gas works to supply gaslight for the streets, lanes, alleys, public buildings and places, and for private

consumers.

John F. Follett and J. F. Neilan, for appellant. Allen Andrews, Israel Williams, H. L. Morey, Michael O. Burns, and E. E. Hull, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The plaintiff's first contention is that there is no statate of Ohio authorizing any city, in which there are already gas works in full and complete operation, to erect gas works, or to levy a tax for that purpose. If this were conceded, we should feel obliged-the plaintiff and defendant both being corporations of Ohio-to reverse the judgment, and remand the cause with directions to dismiss the suit for want of jurisdiction in the circuit court. The jurisdiction of that court can be sustained only upon the theory that the suit is one arising under the constitution of the United States. But the suit would not be of that character if regarded as one in which the plaintiff merely sought protection against the violation of the alleged contract by an ordinance to which the state has not, in any form, given or attempted to give the force of law. A municipal ordinance, not passed ander supposed legislative authority, cannot se regarded as a law of the state, within the neaning of the constitutional prohibition against state laws impairing the obligations of contracts. Murray v. Charleston, 96 U. S. 432, 440; Williams v. Bruffy, Id. 176, 183; Water Co. v. Easton, 121 U. S. 388, 92, 7 Sup. Ct. Rep. 916; New Orleans Waer Works v. Louisiana Sugar Co., 125 U. S. 18, 31, 38, 8 Sup. Ct. Rep. 741. A suit to prevent the enforcement of such an ordinance would not, therefore, be one arising under the constitution of the United States. We sustain the jurisdiction of the circuit court because it appears that the defendant grounded its right to enact the ordinance in question, and to maintain and erect gas works of its own, upon that section of the Municipal Code of Ohio, adopted in 1869, (now section 2486 of the Revised Statutes,) providing that the city council of any city or village should have power, whenever it was deemed expedient and for the public good, to erect gas works at the expense of the cor

poration, or to purchase gas works already erected therein; which section, the plaintiff contends, if construed as conferring the authority claimed, impaired the obligation of its contract previously made with the state and the city.

What, then, we must inquire, is the scope and effect of section 2486? This precise question has been determined by the supreme court of Ohio in State v. City of Hamilton, 47 Ohio St. 52, 23 N. E. Rep. 935, which was an action brought in the name of the state to determine whether the city had authority to erect its own gas works. It was there contended, both by the attorney general and the Hamilton Gaslight & Coke Company, that by sections 2480 and 2482 of the Revised Statutes (which are the same as sections 31 and 32 of the act of March 11, 1853) the legislature specified the conditions under which the council might build gas works; that, in the absence of those conditions, the city was* without power to do what it proposed to do; and that such an expression of the legislative will excluded the right of the city to erect gas works under any circumstances. But the court said: "Those two sections designate what refusal or neglect on the part of gas companies to meet the requirements of law would work a forfeiture of their rights under their charter, and authorize the council to lay pipes, and erect gas works, and exclude a gas company already in operation from occupying any streets not already furnished with gas pipes of such companies: but such authority is very different from the general power conferred upon the council by section 2486 to construct gas works without reference to the manner in which the existing company may use its franchise." "Section 2486," the court proceeds, “in plain language gives the power to the council either to erect gas works, or to purchase such works already erected. The authority granted is not coupled with any conditions or contingency, but is to be exercised when the council may deem it expedient and for the public good. The language is free from ambiguity. The discretionary power would hardly seem consistent with the limitation sought to be imposed, that the council can build gas works only where there are no gas works in the municipality, or where gas companies, already organized, refuse or neglect to comply with the requirements of the law as to lighting or laying pipes, or neglect to furnish gas to citizens. The interest of the city may demand that a gas company estab lished and doing business, although comply. ing with all statutes and ordinances, should not continue to enjoy exclusive possession of the field of operation." Again: "In its present form, section 2486 was passed many years after the two sections which are reproduced in section 2480 and section 2482. Between the earlier and later statutory provi sions we discover no repugnancy, and the canons of statutory construction do not re. quire that either should prevail over the oth

one of the conditions of the grant is that the legislature may alter or revoke it, a law altering or revoking, or which has the effect to alter or revoke, the exclusive character of such privileges, cannot be regarded as one impairing the obligation of the contract, whatever may be the motive of the legislature, or however harshly such legislation may operate, in the particular case, upon the corporation or parties affected by it. The corporation, by accepting the grant subject to the legislative power so reserved by the constitution, must be held to have assented to such reservation. These views are supported by the decisions of this court. In Greenwood v. Freight Co., 105 U. S. 13, 17, the question was as to the scope and effect of a clause in a general statute of Massachusetts, providing that every act of incorporation passed after a named day "shall be subject to amendment, alteration, or repeal, at the pleasure of the legislature." This court, referring to that clause, said: "Such an act may be amended; that is, it may be changed by additions to its terms, or by qualifications of the same. It may be altered by the same power, and it may be repealed. What is it, may be repealed? It is the act of incorporation. It is this organic law on which the corporate existence of the company depends, which may be repealed, so that it shall cease to be a law; or the legislature may adopt the milder course of amending the law in matters which need amendment, or altering it when it needs substantial change. All this may be done at the pleasure of the legislature. That body need give no reason for its action in the matter. The validity of such action does not depend on the necessity for it, or on the soundness of the reasons which prompted it." The words, "at the pleasure of the legislature," are not in the clauses of the constitution of Ohio, or in the statutes to which we have referred. But the general reservation of the power to alter, revoke, or repeal a grant of special privileges necessarily implies that the power may be exerted at the pleasure of the legislature.

We perceive no error in the record in respect to the federal question involved, and the judgment must be affirmed.

2. On appeal in a suit brought by the United States to annul for fraud a patent issued pursuant to an old Mexican grant, the record contained a letter written by the attorney general to one who was formerly clerk of the district court in which the cause was pending, stating, in answer to inquiry, that the United States would not pay the costs, because it had no beneficial interest in the litigation, and that the same was instituted at the request of parties claiming a beneficial interest in the land, with the understanding that they were to pay costs. It did not appear that the letter was offered in evidence, or proved in any way, and the court took no notice of it. Held that, as there was no proof of its genuineness, it could have no weight on the appeal.

3. Even if conceded to be genuine, this letter does not deny that the United States is under obligation to third parties in respect to the relief invoked, which obligation is sufficient ground for maintaining a suit to set aside the patent. U. S. v. Tin Co., 8 Sup. Ct. Rep. 850, 125 U. S. 273, and U. S. v. Beebe, 8 Sup. Ct. Rep. 1083, 127 U. S. 338, followed.

4. Where a patent issued pursuant to an old Mexican grant is made according to a survey which is fraudulently extended so as to include a town where the inhabitants hold possession by the indefinite and unrecorded titles of dwellers in Mexican villages, the United States, in view of the stipulation to respect existing rights contained in the treaty of cession, is under obligation to set aside the patent, even though the same expressly recites that it is not to affect the claims of third persons; for the government owes at least a moral obligation not to burden the equitable rights of the villagers by an ap

parently adverse legal title.

5. Where one claiming under an old Mexican grant has obtained a patent, which by a fraudulent extension of the survey is made to include valuable mineral lands, the United States has a direct pecuniary interest, which will enable it to maintain a suit to set aside the patent.

6. In such a suit there can be no defense on the ground of laches, for laches is not imputable to the United States when it has a direct pecuniary interest in the subject of litigation.

7. In a suit in a territorial district court, motions to suppress a deposition, and to strike out certain parts of it, were made and overruled, and no exception taken. The decree was in favor of the moving party, but on appeal to the territorial supreme court, whither the entire record was transferred, this was reversed, and he thereupon appealed to the supreme court of the United States. The record in the latter court did not show that either motion was renewed in the territorial supreme court, or that any action was there asked or taken before judgment in respect to such deposition. Held, that the judgment could not be reversed on the ground that the evidence contained in the deposition was incompetent, and should have been excluded.

8. A petition for rehearing was filed in the territorial supreme court, one of the grounds assigned being that the court based its decision largely on the incompetent evidence contained in such deposition, "which defendant moved to strike out and suppress before the final hearing, as is shown by the record." The petition was denied, and in its opinion the court said in respect to this ground that the points made were but a repetition of those urged in the oral arguments and the briefs, and were fully met by the prior opinion. Held, that the motion referred to in the assignment as "shown by the record" was the motion made in the district court, and that the court's language in reference to the assignment did not show that any motion was made in the territorial supreme court, or any ruling had thereon.

9. The fact that the competency of the testimony was called in question by the petition for rehearing, and that the petition was denied, could not of itself constitute a sufficient objec

122

tion and exception to the testimony to warrant a review of the question.

Appeal from the supreme court of the territory of New Mexico.

Suit brought by the United States against the San Pedro & Canon del Agua Company in the district court of the first judicial district of the territory of New Mexico to set aside a patent for certain lands. A decree was entered dismissing the bill, which was reversed on appeal to the territorial supreme court, and a rehearing was there applied for and denied. See 17 Pac. Rep. 337. Defendant appeals. Affirmed.

•Statement by Mr. Justice BREWER:

On February 12, 1844, Jose Serafin Ramirez, a citizen of the republic of Mexico, and a resident of Santa Fe, in the department of New Mexico, petitioned the governor of that department for a grant of a tract of land known as the "Canon del Agua," together with the confirmation of the title to a mine claimed as an inheritance from his grandfather. The material part of the petition is as follows:

"I apply to your excellency in the name of the donation laws of the 4th of January, 1813, and 18th of August, 1824, and in the name of the Mexican nation, asking for a tract of vacant land known as the Canon del Agua,' near the placer of San Francisco, called Placer del Tuerto,' and distant from that town about one league, more or less.

"The land I ask for is vacant, and without owner, and I solicit it because I have no possession or property by which I can support my family. The boundaries solicited are: On the north, the road leading from the placer to the Palo Amarillo; on the south, the northern boundary of the grant of San Pedro; on the east, the spring of the Canon del Agua; on the west, the summit of the mountain of the mine known as My Own,' as will appear by the accompanying document No. 1, for which I ask your ratification and that of the departmental assembly, in the manner that I received it, as an inheritance from my grandfather, Don Francisco Dias de Moradillos; and I ask that this title be ratified according to the mining ordinances dated in the year 1813, title 5, article 1; in view of all of which I pray and request your excellency to grant me possession of the mine, to work it, and the land which it embraces, which is about one league, for cultivation and pasturing my animals, and for grinding ore and smelting metal.

"Jose Serafin Ramirez.

"Sante Fe, February 12, 1844." To which petition the departmental assembly and the governor thus responded:

"Departmental Assembly of New Mexico. In session of to-day the departmental assembly decrees that Don Serafin Ramirez, auditor of the departmental treasury, and the other heirs of Don Francisco Dias de Moradillos, deceased, have a right, as grandchildren, to the mine referred to in the peti

tion, and title of possession and property, as expressed in the mining laws; and further decrees that his excellency, the governor of the department, in conformity with the colonization laws, shall grant the tract of land prayed for. "Martinez, President.

"Thomas Oztiz, Secretary. "Sante Fe, February 13, 1844. And in answer to your petition I grant you the tract asked for, and revalidation of the title to the mine, which are inclosed herewith. God and liberty. Mariano Martinez. "To Don Serafin Ramirez, auditor of the departmental treasury, Santa Fe."

The same year juridical possession of the tract was given, the description in the certificate thereof being: "On the north, the road of the Palo Amarillo; on the south, the boundary of the Rancho San Pedro; on the east, the spring of the Canon del Agua; on the west, the highest summit of the little mountain of El Tuerto, adjoining the boundary of the mine known as Inherited Property,' from this date, according to the colo. nization laws of the republic."

By the treaty of Guadalupe Hidalgo, in 1848, (9 St. p. 922,) the territory of New Mexico was transferred to the United States. In 1859, Ramirez filed with the surveyor general of New Mexico his petition, asking official recognition by this government of his grant. The description in this petition was: "The quantity of land claimed is five thousand varas square, making one Castilian league, and bounded on the north by the placer road that goes down to the yellow timber; on the south, the northern boundary of the San Pedro grant; on the east, the spring of the Canon del Agua; on the west, the summit of the mountain of the mine known as the property of your petitioner, as appears by the original title deeds accompanying the notice, numbered 1, 2, 3, 4, 5." A hearing was had on this application on the 10th day of January, 1860. The surveyor general reported in favor of the grant, and on June 12, 1866, congress passed the following act of confirmation:

"An act to confirm the title of Jose Serafin Ramirez to certain lands in New Mexico. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the grant to Jose Serafin Ramirez of the Canon del Agua, as approved by the surveyor general of New Mexico January twenty, eighteen hundred and sixty, and designated as number seventy in the transcript of private land claims in New Mexico, transmitted to congress by the secretary of the interior January eleven, eighteen hundred and sixty-one, is hereby confirmed: provided, however, that this confirmation shall only be construed as a relinquishment on the part of the United States, and shall not affect the adverse rights of any person whatever. Approved June 12, 1866. 14 St. p. 588."