
226 U.S. 318 (1912)
MURRAY, DOING BUSINESS AS THE POCATELLO WATER COMPANY,
v.
CITY OF POCATELLO.
No. 575.
Supreme Court of United States.
Argued December 3, 4, 1912.
Decided December 16, 1912.
ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO.
Mr. William V. Hodges, with whom Mr. Gerald C. Hughes, Mr. Clayton C. Dorsey, Mr. A.A. Hoehling, Jr., and Mr. N.M. Ruick were on the brief, for plaintiff in error.
Mr. D. Worth Clark, with whom Mr. Jesse R.S. Budge, Mr. Aldis B. Browne, Mr. Alexander Britton and Mr. Evans Browne were on the brief, for defendant in error.
*322 Memorandum opinion by direction of the court. By MR. JUSTICE HOLMES.
This was an application by the defendant in error for a mandate requiring the plaintiff in error, Murray, to appoint commissioners to act with commissioners appointed by the city in determining water rates to be charged by Murray. Murray relied upon an ordinance of June 6, 1901, as establishing by contract the only method of fixing rates. The city relied upon a subsequent statute, § 2839, Rev. Code. The Supreme Court of the State held that the *323 constitution in force when the ordinance was passed made it impossible for the city to make a contract on the matter beyond the power of the legislature to change. The constitution declared the use of waters distributed for a beneficial use to be a public use and subject to the regulation and control of the State, and also declared the right to collect rates for water to be a franchise that could not be exercised except by authority of and in the manner prescribed by law. It then ordained that the legislature should provide by law the manner in which reasonable maximum rates might be established. Article 15, §§ 1, 2, 6. The court relied upon Tampa Water Works Co. v. Tampa, 199 U.S. 241; Home Telephone & Telegraph Co. v. Los Angeles, 211 U.S. 265, and Louisville & Nashville Railroad Co. v. Mottley, 219 U.S. 467, which so far sustain its conclusion that we think further discussion unnecessary. We are not prepared to overrule the construction of the legislative power as continuing and irrevocable adopted by the Supreme Court of the State.
A defence more relied upon was res judicata. In 1909 the city brought a bill in equity in the Circuit Court seeking to have the court fix reasonable rates. The defendant demurred for want of jurisdiction to give relief in equity and multifariousness. The decree was that the demurrer be sustained and the bill dismissed. The dismissal was in general terms, but with a reference to the opinion, reported in 173 Fed. Rep. 382. In the opinion, it is true, the court expressed the view that the ordinance relied upon by the defendant was not affected by the subsequent statute, but the point decided and the only point that could be decided was that the demurrer should be upheld and that the court was without jurisdiction to "take upon itself the exercise of the `legislative or administrative' power to determine in advance what will be a reasonable schedule of water rates for the defendant to charge for the next three years." 173 Fed. Rep. 385. The *324 demurrer excludes a decision upon the merits, and even if the decree referring to it did not have the same effect by itself, the opinion to which the decree also refers would show the same thing. Of course if the court was not empowered to grant the relief whatever the merits might be, it could not decide what the merits were. The two grounds are not on the same plane, as they were in Ontario Land Co. v. Wilfong, 223 U.S. 543, 559, and when jurisdiction to grant equitable relief was denied the ground of the merits could not be reached. In Forsyth v. Hammond, 166 U.S. 506, jurisdiction had been taken in the earlier decision relied upon. Here it was refused.
Judgment affirmed.
