39 P. 562 | Idaho | 1895
Lead Opinion
(After Stating the Facts.) — The date given as the time when this corporation was organized and commenced business was at a time when the statute (Idaho Rev. Stats., secs. 2710-2712) was in force, and therefore the said corporation is subject to the provisions thereof. Section 2712 provides that any corporation created under the provisions of that title, for the purposes named, subject to the reasonable direction of the city or town authorities as to the mode and manner of using such right of way, may use so much of the streets, ways and alleys, in any town or any city as may be necessary for laying pipes for conducting water into such town or city, or through or into, any part thereof. Section 2711 provides that all corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof for family use, so long as the supply permits, at reasonable rates, and without distine
.¿Respondent contends, also, that the portion of section 2711 which requires the water company accepting the privileges granted by the statute to furnish any city so occupied water ■for fee purposes free is unconstitutional, as repugnant to section 2, -article 15 of the constitution. This section simply announces a general principle, and the first clause amount's only to a definition; that is, that the right to collect rates, etc., for water supplied to any county, city or town, or the inhabitants thereof, is a franchise, and cannot be exercised except in the manner prescribed by law. This section does not amend sections 2710, 2711, or 2712 of the statute, but would authorize the .enactment of just such a statute, unless it interferes with the right of the legislature to say that a corporation so formed ■sVial] furnish water for fire purposes free. In our view of it, this section is not prohibitory at all. It is, as said above, simply a definition. It does not say the legislature shall not pass ¡a law compelling a water company, in consideration of the acceptance of certain privileges and rights, or in consideration of ámy privileges or rights, to furnish a city or town water for fire ¡purposes free. Neither is this law repugnant to the provisions «of section 6, article 15 of the constitution, which says: “The legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.” That is, the legislature shall provide by law the manner in which reasonable maximum rates may be fixed for ¡the use of water furnished for which the corporation is authorized to charge anything, and does not prevent the legislature ■from granting certain privileges, in consideration' of the ac
Dissenting Opinion
I dissent from the conclusion reached by the majority of the court. This suit was brought to restrain the respondent corporation from disconnecting its water pipes from the pipes and fire hydrants of the city used to supply water for fire purposes and other great necessities, and from cutting off and interfering in any way or manner with the water supply furnished by the defendant to the city for those purposes. The complaint is as follows: “The plaintiff complains and alleges" 1. That it is a municipal corporation of Ada county, Idaho, duly organized and existing under and by virtue of the laws of the state of Idaho. 2. That the defendant is now, and was at all times hereinafter mentioned, a private corporation, doing business at Boise City, Ada county, Idaho, organized and existing under the laws of the state of Idaho. 3. That the defendant,, on or about the twenty-seventh day of March, 1891, became incorporated, and a short time thereafter began doing business at Boise City, Ada county, Idaho, under the corporate name of the Artesian Hot and Cold Water Company, Limited. 4. That the purpose for which the defendant was incorporated was to conduct, furnish and supply pure, fresh water to the inhabitants of Boise City for domestic and family uses, and to furnish and supply this plaintiff with such water for municipal purposes,,
The only error specified is that the court erred in sustaining the demurrer and entering the judgment of dismissal. The question for determination is, Does the complaint state a cause of action? The contentions of respondent are (1) that the complaint does not show that respondent is organized under or is authorized by chapter 5 of the title 4 of the Civil Code to supply the city with water, and (2) that the clause of section 2711 of said chapter requiring water companies to furnish water for fire purposes free of charge is in conflict with article 15 of the state
The allegations of the complaint must be read in the light of the law under which the respondent is furnishing water for compensation to the inhabitants of Boise City. There is but one law under which it is legally permitted to do what it is admitted by the demurrer that it is doing, and that law is found in chapter 5, title 4 of the Civil Code. According to the allegations of the complaint, the respondent is receiving the compensations and benefits authorized by said statute, and it should perform the duties and obligations imposed thereby. If the allegations of the complaint are true, the duties and obligations are imposed regardless of the terms of any ordinance or contract which section 2710 authorizes the city to make. When the complaint alleges that the water company, formed for the purpose of supplying the city with water, is doing so, the presumption is that it is legally so doing, unless the contrary appears. And when a public statute provides that all such water companies must furnish water free of charge for fire purposes, such law cannot be annulled or set aside by any ordinance or contract the city is authorized to make. Section 2710, which provides that a water company must not supply a city or town water until first authorized by ordinance or contract, was not intended as a protection to water companies which supply cities and towns water without being so authorized. It was enacted for the protection of the city, in order that it might make proper contracts for fire hydrants and the proper placing of them, and other necessary things required in all such matters and authorize a city to restrain any company from supplying water unless it complies with the reasonable demands of the city in connecting its water pipes with the fire hydrants of the city, and other necessary things to make the water supply effective. The complaint alleges that the placing of such hydrants and the connections with the water pipes of the company have all been arranged, and no complaint is made on that ground. These matters of detail all having been arranged between the city and water company, the company now threatens to sever the connee
In Bliss on Codo Pleading (section 175) the rule applicable to> the point under consideration is thus stated: “When the law presumes a fact, it should not be stated; thus, the law presumes .... that his [a man’s] business has been legally transacted.”1 “The plaintiff should not state the facts thus presumed; but, if to be put in issue, the contrary averment must come from the other side.” The respondent desires the converse of the foregoing rule to be applied to this case. It would have this court presume that the respondent is transacting its business illegally. It would have us presume that it is furnishing water to the city without an ordinance or contract authorizing it so to do, in direct violation of the statute. If it desires to show that, it should make the issue by answer, for there is nothing in the complaint
Section 3710 of the Revised Statutes declares that a water ' company must not supply water to a city or town unless first authorized by ordinance or contract. This provision is for the protection of the city, and not for relieving the water company of any duties and obligations imposed by the provisions of said chapter. If supplying the city with water without an ordinance or contract would annul or set aside the provisions of said section, then there would be some reason for holding that the complaint must allege, in terms, that said water is supplied under an ordinance or contract. Will it be seriously contended that, if such water is being illegally supplied to the city by respondent, that fact is a defense to this action ? I do not think so. If it can successfully interpose that as a defense, then it is permitted to profit by its own illegal acts, which is contrary to
The issue tendered is plain and simple. If the water company has any contract with the city whereby the provisions of •the statute have been waived or set aside, or for any legal reason is not required to furnish free water, as alleged, that is a matter of defense, and should be met by answer. The respondent