The Attorney General refusing to comply with the request, the Supreme Court, on motion of the relator, ordered the petition to be filed without prejudice to thereafter considering whether there was jurisdiction to entertain it. Subsequently the court overruled a demurrer challenging its original jurisdiction and moreover held on a demurrer addressed to the merits that the petition stated no ground for the relief which was prayed. The court in so doing defined the nature of the power possessed by it as a matter of original jurisdiction to hear and determine the case made by the petition.

It said, 148 Wisconsin, p. 500:

"This transcendent jurisdiction is a jurisdiction reserved for the use of the State itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people. The State uses it to punish or prevent wrongs to itself or to the whole people. The State is always the plaintiff, and the only plaintiff, whether the action be brought by the Attorney General, or, against his consent, on the relation of a private individual under the permission and direction of the court. It is never the private relator's suit. He is a mere incident. He brings the public injury to the attention of the court, and the court, by virtue of the power granted by the Constitution, commands that the suit be brought by and for the State. The private relator may have a private interest which may be extinguished (if it be severable from the public interest), yet still the State's action proceeds to vindicate the public right." Contrasting the authority thus possessed by virtue of its original jurisdiction with the ordinary processes for the redress of private wrongs the court said: "These propositions, if correct, and we believe they are, demonstrate very clearly that there can be no such thing as a tax payer's action (as that action is known in the circuit courts) brought in the Supreme Court within the original jurisdiction."

Referring to such a tax-payer's suit, the court observed (p. 501):

"The tax payer himself is the actual party to the litigation, and represents not the whole public, nor the State, nor even all the inhabitants of his municipality, but a comparatively limited class, namely, the citizens who pay taxes. In short, he sues for a class. No such thing is known in the exercise of the original jurisdiction of this court. In actions brought within that jurisdiction the State is the plaintiff and sues to vindicate the rights of the whole people."

Applying these doctrines, it was said (p. 501): "The Bolens Case (this case) cannot therefore be held to come within the original jurisdiction of this court, if it be a mere taxpayer's action."

After further pointing out the distinction between the right of an individual to sue in a trial court to enforce an individual right or redress a wrong and if aggrieved to prosecute error or appeal and the difference between the exertion on such error or appeal of authority to review and the extraordinary power exerted when original jurisdiction was invoked, the court came to consider the merits of the petition. In doing so it declared that because of the public nature of the controversy, it would confine attention solely to those matters which were addressed to the invalidity of the statute as a whole. In passing upon questions of that character propositions which asserted the statute to be repugnant to both the United States and state constitutions, were analyzed and held to be without merit. The petition was dismissed.

From this statement it is apparent that the motion of the State to dismiss is well-founded for the following reasons: (a) Because accepting the interpretation affixed by the court below to the state constitution and the resulting ruling as to the scope of its own original jurisdiction, it follows that the State was the only real plaintiff below,

since the relator had no authority to sue but by the consent of the State, and as its mere agent for the purpose of calling into activity judicial authority, not for the redress of individual wrong, but for the protection of general public rights; (b) because the suit, having been brought by the consent of the State in its behalf, the relator had no power, without the consent of the State, to prosecute error, and thus to implead the State without its consent; (c) because as the relator did not resort to the methods provided by law for the enforcement of his individual rights, if any, but elected solely to resort, by the consent of the State, to a jurisdiction given only for the redress of general public wrongs, he may not, by means of a writ of error, directed from this court, transform the nature of the proceedings and secure at the hands of this court, under the guise of an appellate proceeding, the exertion of authority to originally determine alleged grievances which were not passed upon by the court below and are not within the scope of Rev. Stat., § 709 (Judicial Code, 237). The argument that if, asserting his individual grievances, the case had been brought in a trial court and had been carried to the Supreme Court of the State from an adverse decision upon a Federal question the judgment or decree of the Supreme Court would be here reviewable, hence the decision in this case, to save circuity of action, should be now reviewable, amounts but to saying that because there is authority to decide a legal question in a case where there is jurisdiction, there must also be power to pass upon the same question when it arises in a case over which there is no jurisdiction. Under the ruling below no individual right of the relator was denied and because it may be inferred that if in the future a case asserting individual rights in due course of procedure comes to the court below, that court will be controlled or persuaded by the opinions expressed in this case, furnishes no ground for the exertion by this court in the

present case of a jurisdiction which it does not possess. Indeed, whether the case be considered in the light of the absence of any assertion of individual right or grievance on behalf of the relator or be looked at from the point of view that the suit was one under the state law which could only be brought by the permission of the State and for the protection of its governmental authority, the State being therefore the real party plaintiff, or if it be tested by the want of authority on the part of the relator by means of a writ of error to implead the State under the circumstances disclosed without its consent in this court, the want of jurisdiction is so conclusively shown by previous decisions as to leave no room for controversy (Smith v. Reeves, 178 U. S. 436).

Dismissed for want of jurisdiction.

WYANDOTTE COUNTY GAS COMPANY v. STATE OF KANSAS, ON RELATION OF MARSHALL, ATTORNEY FOR THE PUBLIC UTILITIES COMMISSION OF THE STATE OF KANSAS.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No. 472. Argued December 2, 1913.-Decided January 5, 1914.

The fact that the determination of the question of power of the municipality to make the contract alleged to have been impaired involves consideration and construction of the laws of the State does not relieve this court from the duty of determining for itself the scope and character of such contract.

While this court, in determining whether there is a contract, is not bound by the construction of the state statutes by the state court, it will not lightly disregard such construction but will seek to uphold it

231 U.S.

Argument for Plaintiff in Error.

so far as it can consistently with the duty to independently determine the question.

In this case, this court reaches independently the same conclusion as the state court in determining that under the authority conferred by the statutes of Kansas the municipality cannot divest itself by contract of its duty to see that only reasonable rates are enforced under a public utility franchise.

A proviso in a public utility statute, in which manufactured gas, light and water were enumerated, stating that municipalities were not prohibited from granting franchises for supplying natural gas on terms and conditions agreed to by it and the franchisee, construed as bringing natural gas within the statute, and that the terms and conditions on which the franchise could be granted were subject to the same limitations contained in the statute as applicable to franchises for other utilities.

88 Kansas, 165, affirmed.

THE facts, which involve the power of a municipality in Kansas to regulate charges for natural gas, are stated in the opinion.

Mr. J. W. Dana, with whom Mr. W. F. Douthirt was on the brief, for plaintiff in error:

The construction of this court is controlling and it will determine for itself whether a contract exists within the meaning of the contract clause of the Constitution. Louisville Gas Co. v. Citizens Light Co., 115 U. S. 683, 697; McCullough v. Virginia, 172 U. S. 102; Crosslake Club v. Louisiana, 224 U. S. 632; Vicksburg v. Water Co., 185 U. S. 65.

Power to regulate rates by municipality may be suspended by contract. Home Tel. Co. v. Los Angeles, 211 U. S. 265; Detroit v. Citizens Railway Co., 184 U. S. 368; Vicksburg v. Waterworks Co., 206 U. S. 496.

Municipal corporations may be invested by statute with power to bind themselves by irrevocable contract not to regulate rates. Water Co. v. Freeport, 180 U. S. 587; Los Angeles v. Water Co., 177 U. S. 558; Water Co. v. Walla Walla, 172 U. S. 1; New Orleans Water Co. v.