258 F. 20 | 6th Cir. | 1919
(after stating the facts as above). We do not see that the facts of the case, above in substance stated, present any question calling for decision. The grounds of the company’s complaint are that the efféct of the passage and enforcement of the ordinance of May 30, 1917, and the resolution of July 9th following, would be to impair the obligation of the water supply contract of 1884 and also to deprive the company of its property without due process of law. The repeal of this ordinance and rescission of. the notice served under it rendered any inquiry into what the effect of its continuance and enforcement would have been upon the rights of the water company simply a moot question. It is the duty of courts to decide only real and pending issues, and not to pronounce j'udgment upon abstract propositions or moot questions,_ no matter how the opinion might affect future action in similar circumstances (Mills v. Green, 159 U. S. 651, 653, 16 Sup. Ct. 132, 40 L. Ed. 293; Richardson v. McChesney, 218 U. S. 487, 492, 31 Sup. Ct. 43, 54 L. Ed. 1121); and the question is none the less moot where legislation is the occasion of complaint and is repealed as here during pendency of the suit (Berry v. Davis, 242 U. S. 468, 470, 37 Sup. Ct. 208, 61 L. Ed. 441).
Furthermore, the resolution of July 9th presents a question of re- . mote rather than present concern. The most that can be said of the measure is that in the event of its execution it would impose an obligation of an alternative character as respects the company and the property holders; for the resolution distinctly provides that the city itself shall at- its own expense replace the service pipes in Jefferson street upon the mere refusal of the company so to do, and to look for reimbursement to the one or the other source of obligation according as the. duty of replacement shall ultimately be judicially determined to rest upon fhe company or upon the property owners. Clearly, as respects any action that the city might bring against the company to recover the cost it had incurred in replacing the service pipes in Jefferson street, the defense so far as remedy is concerned would be plain, adequate, and complete at law.
It results that the decree must be reversed and the cause remanded, with direction to dismiss the suit; and inasmuch as the ordinance of May 30, 1917, was repealed, and the resolution of July 9th passed, after the suit was begun, the costs in this court will be equally divided
