These two causes were argued and submitted together, and we find it more convenient to consider them in connection, as both of them, to some extent, are dependent on the same principles.
The suits were instituted by the Montgomery Water-Works against the City Council of Montgomery for water supplied
It is contended for appellant, that these actions are based strictly upon a certain contract made between the parties litigant in the year 1871, the contents of which are set out in the complaint, and the provisions of which purport to be mutually obligatory for a period of about twenty-four years, or until the year 1895. And the argument is urged, with great force, that this contract, for so great a length of time, is -ultra vires and void, for two reasons, either of which, it is said, will preclude the plaintiff’s right of recovery. The first contention is, that the city authorities were forbidden, by the express terms of their charter, from entering into such a contract for a longer period than one year, such alleged prohibition being found iir section 9 of the amended charter of the city, approved March 3, 1870, which was in force at the time the contract in question was made, and which provides, that “the city council shall not contract any debt, or incur any liability in the future, for or on account of the city of Montgomery, except such as shall be paid out of the ordinary current revenue of the city collected in the year the debt or liability is contracted.” — Session Acts 1869-70, p. 338, section 9, p. 361. The second objection urged is, that one municipal council, or board of aldermen, can not lawfully tie the hands of its successors for so great a length of time, because it is an attempt by contract to surrender its legislative authority in abridgement of the corporate power belonging to such successors equally with the particular body thus undertaking to barter it away for an agreed price.
These are grave questions worthy of serious consideration. But a careful investigation satisfies us that they do not necessarily arise in the decision of the cases made by the records.
The suits are not, properly speaking, brought upon the contract, or for the purpose of enforcing it as an executory agreement. The contract, it is true, is set forth in the complaint; but this may be considered as done only by way of inducement, in view of the other averments, which show an actual consumption, fro.m month to month, and year to year, by the defendant, of water supplied by the plaintiff for the extinguishment of fires, and of water used, from time to time, for sanitary purposes. The suits, in other words, are upon the contract, only so far as it has been executed by the plaintiff, and no right is based upon it so far as it is executory.
It is not denied that the city council had the power to contract for a supply of water for a single year, to be used for the purposes designated, or that the price agreed to be paid for
The defendant having the power to contract from year to year for a supply of water, and having obtained the benefit of such supplies, and appropriated them to its use from time to time, it is both reasonable and just that the services and property thus enjoyed should be paid for, and the plaintiff’s right to recover is not interdicted by any sound rule of law, which is known to us.
The case of City of East St. Louis v. East St. Louis Gas-Light and Coke Co., 98 Ill. 415, cited by appellee’s counsel, is a well-considered authority which supports the foregoing view in every essential particular. See, also, Field on Corp. § 273; Hitchcock v. Galveston, 96 U. S. 341; City Council of Montgomery v. Montgomery Water-Works Co., 77 Ala. 248.
We are aware of no principle which would justify the sustaining of the defendant’s pleas of recoupment and set-off. These pleas set up the fact that a large amount of property, owned by private persons, resident within the city limits, had been destroyed by fire by reason of the insufficiency of the water supply agreed to be furnished by the plaintiff, and offer to set off and recoup the damages thereby sustained by these persons. It seems to be settled, according to the' better view, that the power conferred upon municipalities to organize fire companies, and supply other means for the protection of property against destruction by fire, is a power in its nature legislative and governmental, involving the exercise of judgment and discretion in its proper execution. In this particular it differs
The evidence sought to be introduced by the defendant, as to an existing custom in other cities of the United States, having water-works, to use water drawn through fire-plugs for sanitary purposes, flushing sewers, and the like, was" properly excluded from the jury. The terms of the contracts, under which this so-called custom was alleged to exist, were not proposed to be shown, nor was there any evidence offered as to whether any compensation was paid for this extra use of water.
This evidence falls short of any effort to prove that, when the city purchased the use of “fire-plugs,” there was included in this right, thus bargained for, the privilege of using, free of additional charge, water for sanitary purposes. The record does not, according to our view of the matter, raise the question as to whether or not the compound word “ fire-plug ” may not have a flexible signification, which would be broad enough, under peculiar circumstances, to permit the meaning contended for by appellant’s counsel to be attached to it by established usage.
Nor is the question raised by the pleadings, in proper shape, whether the defendant was entitled to recoup for the alleged defective quality of the water furnished.
We discover no error in the rulings of the court, in either case, on the pleadings or the evidence; and the judgments must each be affirmed.