Court of the Territory it is unconstitutional and in conflict with 1857 and 2324 of the Revised Statutes of the United States.

Upon what ground the statute is unconstitutional is not stated, and we can put that objection aside and pass to the asserted conflict with the Revised Statutes of the United States. It is only necessary to consider § 2324. Section 1857 expresses a general limitation of the powers of the Territory by the Constitution and laws of the United States. The other section directly concerns locations of mining ground.

The section permits the miners to make regulations in regard to mining locations not in conflict with the laws of the United States or of the State or Territory in which the mining district is situated, "governing the location, subject to the following requirements: On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of work shall be performed or improvements made during each year, and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made."

Appellant contends "that the spirit and intention of this enactment" is that upon the failure of the original locator to comply with the provisions of the law "the ground is open to relocation in the same manner as if no location had ever been made," and that, therefore, neither a State nor a Territory can impose conditions or burdens upon the exercise of the right.

That cannot be said to be a burden upon a right to which the right when taken is subject. The section gives to the miners of a mining district and the State or Territory in which the district is situated the power to make regulations "governing the location" of a mining claim,

subject to certain requirements. Those requirements may not be dispensed with, but they may be supplemented, certainly to the extent (and we need go no farther in this case) prescribed by the Arizona statute. It is a provision strictly "governing the location," and is not repugnant either to the spirit or the letter of the mining laws of the United States. Butte City Water Co. v. Baker, 196 U. S. 119.

Judgment affirmed.

CEDAR RAPIDS GAS LIGHT COMPANY v. CITY OF CEDAR RAPIDS.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 163. Argued February 29, 1912. Decided March 11, 1912.

Where the general power reserved to regulate rates is only limited by the Fourteenth Amendment, no franchise contract will be presumed to imply that the municipality under its reserved right to regulate rates must only reduce them to such a point that there will be a margin to allow a discount for prompt payment.

A municipal ordinance drawn in form of a contract to be accepted by the franchisee, when accepted becomes a contract and is subject to the reserved powers of the municipality as limited by the laws of the State.

The practice and decisions of this court are that § 709 Rev. Stat. does not give to a writ of error to the state court in a chancery case the effect of an appeal from a judgment in such a case in the Federal courts and open the evidence for reëxamination in this court. Findings of the state court in cases either at law or in equity may depend upon questions that are reëxaminable in this court, which, if properly saved, must be answered; and this court may examine the evidence in so far as necessary to do so in respect to rulings within the appellate jurisdiction of this court. Kansas City Southern Railway v. Albers Commission Co., ante, p. 573.

Quare: Whether a legislative rate, not in itself too low, is confiscatory

Argument for Plaintiff in Error.

223 U.S.

because it is too low to permit a further reduction in the way of discount for cash payment.

The state court having treated a public utility corporation fairly as to value of plant depreciation, and found that the net returns would exceed six per cent, and given it leave to try the case again after the legislative rate had been in effect, this court does not feel warranted in reversing on the ground that the rate is confiscatory because in some details this court might have treated the corporation differently.

144 Iowa, 426, affirmed.

THE facts, which involve the validity, under the contract and due process provisions of the Constitution of the United States, of an ordinance of the City of Cedar Rapids, Iowa, fixing the price of gas at ninety cents per thousand cubic feet, are stated in the opinion.

Mr. James H. Trewin, with whom Mr. John N. Hughes and Mr. John M. Grim were on the brief, for plaintiff in

error:

There is no conflict in the evidence as to the value and efficiency of the discount provision of the franchise. The ordinance granting the plaintiff in error a franchise is a contract. Water Co. v. Cedar Rapids, Iowa, 118 Iowa, 234; Dartmouth College Case, 4 Wheat. 518.

An unconditional grant by a State constitutes a contract, which is entitled to protection under the Constitution just as fully as a grant made by an individual. Fletcher v. Peck, 6 Cr. 87; Sinking Fund Cases, 99 U. S. 700, 719; New Orleans Water Co. v. Rivers, 115 U. S. 674, 681; People v. O'Brien, 111 N. Y. 1; 18 N. E. Rep. 692.

Plaintiff in error cannot provide for a discount below ninety cents and earn any return on its property whatever. It is, therefore, deprived by the ordinance of the discount provision contained in its franchise. The company cannot impose a penalty for the violation of one of its regulations, nor refuse to furnish gas on the failure of the consumer to pay the penalty. Shepard v. Milwaukee

223 U.S.

Argument for Plaintiff in Error.

Gas Co., 70 Am. Dec. 479; 6 Wisconsin, 539; Williams v. Mutual Gas Co., 18 N. W. Rep. 236; Harbison v. Knoxville Water Co., 53 S. W. Rep. (Tenn.) 933; Gas Light Co. v. Colliday, 25 Maryland, 1; Webster v. Nebraska Tel. Co., 22 N. W. Rep. 239; Tacoma Hotel Co. v. Light & Water Co., 28 Pac. Rep. 517; Shires v. Ewing, 29 Pac. Rep. 320; Railroad Tax Cases, 13 Fed. Rep. 756; Detroit v. Plank Road Co., 43 Michigan, 140; Commonwealth v. Essex Co., 13 Gray, 239; Railroad Co. v. Maine, 96 U. S. 499; Sinking Fund Cases, 99 U. S. 700.

Whatever is plainly granted cannot be taken from the parties entitled thereto by such legislative enactments. Minneapolis v. Street Ry. Co., 215 U. S. 417; Detroit v. Citizens' Street Ry. Co., 184 U. S. 368.

The city had no reserved power to abrogate the discount provision. Sioux City St. Ry. Co. v. Sioux City, 78 Iowa, 747; Burlington Street Ry. Co., 49 Iowa, 144; Des Moines v. C., R. I. & P. Ry. Co., 41 Iowa, 569; Burlington & Henderson County Ferry Co. v. Davis, 40 Iowa, 133; Des Moines St. Ry. Co. v. Des Moines B. G. St. Ry. Co., 73 Iowa, 513; City Ry. Co. v. Citizens' St. Ry. Co., 166 U. S. 557; New Orleans v. New Orleans Water Co., 142 U. S. 79; C., B. & Q. Ry. Co. v. Cutts, 94 U. S. 155.

The discount provision, which is the language of the city, grants a valuable right of which plaintiff in error cannot be deprived. Knoxville v. Water Co., 189 U. S. 434, distinguished.

Implied obligations of contracts come within the protection of § 10 of Art. I of the Constitution. Stewart v. Jefferson Police Jury, 116 U. S. 135; Burton v. Koshkonong, 4 Fed. Rep. 377; Carey Library v. Bliss, 151 Massachusetts, 364.

The State can no more impair the obligation of its own contracts, than it can impair the contracts of individuals. Woodruff v. Trapnall, 10 How. 207; Providence Bank v. Billings, 4 Pet. 560; Green v. Biddle, 8 Wheat. VOL. CCXXIII-42

Argument for Plaintiff in Error.

223 U.S.

92; Fletcher v. Peck, 6 Cranch, 127; Shinn v. Cunningham, 120 Iowa, 383; People v. Hall, 8 Colorado, 485; Erie v. Griswold, 184 Pa. St. 435; Atkins v. Randolph, 31 S. W. Rep. 226; United States v. Mayor of New Orleans, 103 U. S. 358; Von Hoffman v. Quincy, 4 Wall. 535; Greenwood v. Freight Co., 105 U. S. 20; New Jersey v. Yard, 95 U. S. 113.

The granting of a franchise to a corporation is a contract with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it. Birmingham v. Birmingham, 3 Wall. 51. See also West River Bridge Co. v. Dix, 6 How. 507.

The ninety cent rate ordinance abrogates the sliding scale of prices for gas. It is lawful and proper to make lower rates to large consumers based on a sliding scale available to all. Skillman v. Board, 152 N. Y. 327; Wagoner v. Rock Island, 146 Illinois, 139; Brunswick Elec. v. Maine Water Co. (Me.), 59 Atl. Rep. 537; Robbins v. Bangor, &c., 1 L. R. A. (N. S.) 962; Wilson v. Tallahassee Water Co. (Fla.), 36 So. Rep. 63.

The ordinance takes plaintiff's property without just compensation and due process of law. The evidence shows that the ninety cent rate would not enable plaintiff to earn fair and reasonable compensation upon its property.

The basis of all calculations as to the reasonableness of the rates to be charged by a corporation furnishing gas to the public is the fair value of the property being so used at the time of fixing the rate. Willcox v. Gas Co. of New York, 212 U. S. 19; Knoxville v. Knoxville Water Co., 212 U. S. 1; Atlantic Coast Line v. Nor. Car. Corp. Com., 206 U. S. 1; Stanislaus County v. Irrigation Co., 192 U. S. 201; San Diego Land Co. v. Jasper, 189 U. S. 439; Minneapolis & St. Louis Rd. Co. v. Minnesota, 186 U. S. 257; Vicksburg Water Co. v. Vicksburg, 185 U. S. 82; San Diego Land Co. v. National City, 174 U. S. 739; Smyth v. Ames, 169 U. S. 547; Covington Turnpike Co. v. Sandford, 164 U. S. 578; Cotting