Argument for Appellant. 202 U.S. nicipality to construct a sewer, in a particular manner irrespective of the exercise of discretion vested in the municipal authorities to determine the practicability of the sewer, the availability of taxation for the purpose, and like matters. THE facts are stated in the opinion. Mr. J. C. Bryson, Mr. L. W. Magruder, Mr. H. C. McCabe and Mr. M. Dabney for appellant: The motion to dismiss must be denied. Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685; Loeb v. Columbia Township, 179 U. S. 472; Connolly v. Union Sewer Pipe Co., 184 U. S. 544. The Bullock contract was personal and not assignable, and the Supply Company had no power to assign the contract to the Waterworks Company and to compel appellants without their consent to look to it for its performance. The burden is on appellee to show such power or consent. Matthews v. Board of Corp. Comm., 97 Fed. Rep. 400; Thomas v. W. Jersey R. R., 101 U. S. 71; Gibbs v. Gas Co., 130 U. S. 396; St. Louis R. R. Co. v. Gill, 156 U. S. 649; Norfolk v. Pendleton, 166 U. S. 667; Adams v. Railroad Co., 180 U. S. 1; Brunswick Gas Co. v. United Gas Co., 85 Maine, 535; Commonwealth v. Smith (Mass.), 87 Am. Dec. 672; Chicago Gas Co. v. People's Gas Co., 2 Am. St. Rep. 124. But if the contract was assignable and passed to the Waterworks Company without the consent or approval of the appellant, it passed subject to the power of the State to regulate rates whenever it chose to do so, and regulating such rates would not impair complainant's contract. Stone v. Trust Company, 116 U. S. 636; Providence Bank v. Billings, 14 Pet. 514. The State could abandon its governmental right and deprive itself of the power to regulate its corporations, but only by apt words about whose meaning there can be no doubt. The legislative grant by the State to the City does not evidence any purpose on the part of the State to deprive itself of the power to fix and regulate rates to be charged by the party or parties to whom the contract should be let. Collins v. Sherman, 31 202 U. S. Argument for Appellant. Mississippi, 679; Railroad Co. v. Stone, 116 U. S. 307, 347; Norfolk v. Pendleton, 156 U. S. 667; San Diego v. National City, 174 U. S. 739; Owensboro v. Water Co., 191 U. S. 358; Water Co. v. Fergus, 180 U. S. 624; Stanislaus County v. San Joaquin Co., 192 U. S. 201; Rushville v. Rushville, 15 L. R. A. 321 and note, 322; Water Co. v. Knoxville, 189 U. S. 434. Appellee can exercise no powers prohibited by the constitution and laws of Mississippi. Its charter was and is subject to alteration, repeal or amendment, and has been amended by the act of 1904. It cannot complain of any of these laws which were in existence when it accepted its charter. Its rights and privileges are fixed by these laws and the decree of the court which held, in effect, that they were not, is erroneous. Gas Lt. Co. v. Hamilton, 146 U. S. 258; Norfolk v. Pendleton, 156 U. S. 667; Griffin v. Goldsboro (N. Car.), 41 L. R. A. 240; Redland v. Redland, 121 California, 365; Matthews v. Bd. of Corp. Comm., 97 Fed. Rep. 400; Greenwood v. Union Frt Co., 105 U. S. 13; Water Co. v. Newburyport, 193 U. S. 562; Water Co. v. Fergus, 180 U. S. 702; County of Stanislaus v. San Joaquin Co., 192 U. S. 202; Turnpike Rd. v. Croxton, 33 L. R. A. 177; Y. & M. V. R. R. Co. v. Adams, 180 U. S. 1, 26; Walla Walla Water Case, 172 U. S. 1. Unless plainly expressed the city had no power to make an exclusive grant. No such purpose was intended or expressed. Freeport W. W. Co. v. Freeport, 180 U. S. 587; Gas Lt. Co. v. Saginaw, 28 Fed. Rep. 529; Wright v. Nagle, 101 U. S. 79; Water Co. v. Greenville, 7 So. Rep. 409; Collins v. Sherman, 31 Mississippi, 679; Gaines v. Coates, 51 Mississippi, 335; Detroit Citizens' St. Ry. Co. v. Detroit Ry., 171 U. S. 48; Brenham v. Water Works Co., 67 Texas, 542; Knoxville W. W. Co. v. Knoxville, 189 U. S. 434; Helena W. W. Co. v. Helena, 195 U. S. 383; Long v Duluth, 49 Minnesota, 290; Gas Lt. Co. v. Hamilton, 146 U. S. 258; Water Co. v. Skaneateles, 184 U. S. 354; Smith v. Westerly, 35 Atl. Rep. 526; Water Co. v. Fergus, 180 U. S. 624; Walla Walla Water Case, 172 U. S. 1. Whether or not the city made a contract precluding itself Argument for Appellee. 202 U. S. from building and operating its own waterworks must be determined by the language of the grant itself. The words "exclusive right and privilege" were intended to apply to all third parties, as against whom the exclusive right and privilege was granted to construct and operate a waterworks. It is true the city could not by its contract exclude all third parties, because such a contract would have been a monopoly and would have been void for that reason, but it is possible that the contracting parties did not know the law in that regard. These words were never intended to be applied to the city of Vicksburg. If it had been the purpose of the parties to the contract to exclude the city from building and operating a waterworks of its own, apt words would have been used as was done in the case of Walla Walla W. W. Co. v. Walla Walla, 172 U. S. 1. In construing this language all doubts must be resolved in favor of the appellant and against the company; and so construed it does not preclude the city from constructing and operating a water works of its own. S. W. Mo. Lt. Co. v. Joplin, 191 U. S. 150; Bienville W. W. Co. v. Mobile, 175 U. S. 109; S. C., 186 U. S. 212; Freeport W. W. Co. v. Freeport, 180 U. S. 587. The decree of injunction as to the Washington street sewer is clearly erroneous. In the first place, it is not supported by facts, and in the second place, it is a transgression by the court of the authority reposed in a coördinate branch of the Government. It was held by this court at an early date that the judiciary could not in any manner interfere with the legislative or executive departments of the Government to restrain either from action or to compel action by either where any discretion is vested in either of the coördinates. Mississippi v. Johnson, 4 Wall. 475. See also Cooley, Const. Lim., 5th ed., 254. Mr. S. S. Hudson, Mr. Murray F. Smith and Mr. J. Hirsh for appellee: No appeal is authorized by law direct to the Supreme Court from the District or Circuit Courts in this case under act of March 3, 1891. All questions of law involved in this case have already been decided by this court in a former appeal. 185 U. S. 65. The appeal is frivolous and without color of merit and should be dismissed. Whitney v. Cook, 99 U. S. 607; Hinckley v. Morton, 103 U. S. 764; Micas v. Williams, 104 U. S. 556; Swope v. Leffingwell, 105 U. S. 3; Chanute City v. Trader, 132 U. S. 210. The lower court's decree is strictly in accordance with the Supreme Court's mandate in the former appeal, and therefore the case should be dismissed. A. M. Smelting Co. v. Billings, 150 U. S. 29; Mackall v. Richards, 116 U. S. 45; Stewart v. Soloman, 97 U. S. 361; Humphreys v. Baker, 103 U. S. 736; United States v. N. Y. Indians, 173 U. S. 464; Tyler v. L. C. Mine, 97 Fed. Rep. 394; In re Pike, 76 Fed. Rep. 400; Gregory v. Pike, 77 Fed. Rep. 241. The prior decision is conclusive. Illinois ex rel. Hunt v. Illinois C. R. Co., 184 U. S. 77, 91. Upon an appeal from proceedings under a mandate, directed to a lower court, nothing is before the court, but the proceedings subsequent to the mandate. Himeley v. Rose, 5 Cranch, 314; Washington Bridge Co. v. Stewart, 3 How. 424; Tyler v. Magwire, 17 Wall. 283; The Lady Pike, 96 U. S. 462; Roberts v. Cooper, 20 How. 481; Cook v. Burnley, 11 Wall. 677; The Nuestra Sennora De Regla, 108 U. S. 101; Sizer v. Many, 16 How. 103; Supervisors v. Kennicott, 94 U. S. 499; Clark v. Keith, 106 U. S. 465; Chaffin v. Taylor, 116 U. S. 572; Thompson v. Maxwell Land &c. Co., 168 U. S. 456; Bent v. Miranda, 168 U. S. 471; Illinois v. Illinois Central Railroad Company, 184 U. S. 77, 91. The power of the court to grant the injunction as to the sewer cannot be doubted. Missouri v. Illinois, 180 U. S. 208; Mugler v. Kansas, 123 U. S. 623; Chapman v. Rochester, 110 N. Y. 273. If a municipal corporation by its system of constructing sewers renders an outlet necessary, it must provide one. Evansville v. Decker, 84 Indiana, 325; Crawfordsville v. Bond, 96 Indiana, 236; Van Pelt v. Davenport, 42 Iowa, 308; Byrnes v. Cohoes, 67 N. Y. 204; Fort Wayne v. Coombs, 107 Indiana, 75; Llano v. Llano County, 23 S. W. Rep. 1008; Wood on Nuisances, 1032. MR. JUSTICE DAY delivered the opinion of the court. This case was before this court at the October term, 1901, and is reported in 185 U. S. 65. It was then here upon the question of jurisdiction, and it was held that it presented a controversy arising under the Constitution of the United States, such as gave the Circuit Court jurisdiction. There was no diversity of citizenship, and the bill was filed by the Vicksburg Waterworks Company, a corporation of the State of Mississippi, against the Mayor and Aldermen of the city of Vicksburg, a municipal corporation of the same State. In view of the full statement of the contents of the bill and the amended bill in the case, as reported in 185 U. S., it is unnecessary to repeat it. On the present appeal a motion to dismiss or affirm was made, which was passed, to be heard with the merits. We regard the decision of this court, when the case was here at the former term, as settling the question of jurisdiction, and affirmatively determining that upon the bill and amended bill the complainant alleged a case which involved the application of the Constitution of the United States and appealable to this court, within section 5 of the act of March 3, 1891, as amended. 26 Stat. 827. The suit was brought by the Waterworks Company, claiming an exclusive right as against the city under a contract with it for the construction and maintenance for a period of thirty years of a system of waterworks, which exclusive contract, it was alleged, would be practically destroyed if subjected to the competition of a system of waterworks to be erected by the city itself, which was in contemplation under authority of an act of the legislature of Mississippi, authorizing the Mayor and Aldermen of the city of Vicksburg to issue bonds to the amount |