Columbia Ave. Savings Fund, Safe Deposit, Title & Trust Co. v. City of Dawson

130 F. 152 | U.S. Circuit Court for the Northern District of Georgia | 1903

PARDEE, Circuit Judge.

This cause came on to be heard upon the report of W. A. Wimbish, master in chancery, filed herein on April 37, 1903, and upon the exceptions filed by the defendant the city of Dawson to the report of said master, and upon the motion of complainant to confirm said report and for final decree; and same was argued by counsel for complainant and defendants, respectively, and the said exceptions to said report were duly heard and considered. Whereupon, upon consideration thereof, it is ordered, adjudged, and decreed by the court:

First. That the exceptions to said report be, and the same are, all and severally, overruled.

Second. Whereupon It is ordered, adjudged, considered, and decreed that said report of said master in chancery, W. A. Wimbish, Esq., be, and the same is, in all respects, confirmed, and it is ordered that a decree in favor of the said complainant against the defendants, in accordance with the findings made by said master in said report, be made and entered herein.

Third. In accordance with the findings made by the said master in said report, it is ordered, adjudged, and decreed by the court that the contract entered into between the city of Dawson and the Dawson Waterworks Company, which constitutes the subject-matter of this suit, and a copy of which is annexed to the complainant’s bill of complaint, marked “Exhibit B,” and by reference made a part of said bill of complaint, is, and it is hereby declared and decreed to be, valid, binding, and enforceable, and that the ordinances, action, and conduct of the city of Dawson, the mayor and council and other officers of said city, whereby it is sought to invalidate the said contract, are unconstitutional and void, as seeking to impair the obligation of said contract. And it is further ordered, adjudged, and decreed that a perpetual injunction be granted to complainant, prohibiting, restraining, and forbidding the city of Dawson, the mayor and aldermen of the said city of Dawson, and the other officers and agents, and their confederates and abettors, from negotiating, selling, or disposing of any of the bonds of the city of Dawson mentioned in complainant’s said bill of complaint, authorized by the said city of Dawson to be used in the construction of a system of waterworks by the said city of Dawson, and from constructing, maintaining, or operating any system of waterworks in the city of Dawson for the purpose of supplying either the said city of Dawson or its inhabitants with water for fire protection or domestic use, or from entering into any contract or arrangement with any person, firm, or corporation for the construction, lease, operation, or use of any system of waterworks, or any supply of water for fire protection or other municipal purpose, or from laying mains or pipes, or permitting the laying of pipes or mains, for the construction of waterworks, or from paying out any moneys for waterworks, or from incurring any obligation for waterworks, or from entering into or carrying out any contract for waterworks, save and except the contract referred to in complainant’s bill of complaint, or from forbidding or preventing any person, organization, fire company, or agency from carrying out said contract with the Dawson Waterworks Company, or from placing any obstacle in the way of the due carrying out of the provisions and specifications thereof according to its terms, for and during the term of the aforesaid contract, and while said contract shall remain in force.

Fourth. And it is further ordered, adjudged, and decreed by the court that the said complainant do recover of the said city of Dawson, and that the said city of Dawson do pay to the said complainant, the sum of the water rentals due and unpaid from January 1, 1896, with interest on each installment thereof as the same matured at the rate of 7 per cent, per annum after maturity; that is to say, that the said complainant do have and recover of the said city of Dawson the sum of $16,000, principal debt, together with interest thereon at the rate of 7 per cent, per annum, as follows: $1,000 from January 1, 1896; $1,000 from July 1, 1896; $1,000 from January 1, 1897; $1,000 from July 1, 1897; $1,000 from January 1, 1898; $1,000 from July 1, 1898; $1,000 from January 1, 1899; $1,000 from July 1, 1899; $1,000 from January 1, 1900; $1,000 from July 1, 1900; $1,000 from January 1, 1901; $1,000 from July 1, 1901; $1,000 from January 1, 1902; $1,000 from July 1, 1902; $1,000 from January 1, 1903; $1,000 from July 1, 1903 — together with future installments as the same accrue, to wit, $1,000 on the 1st days of January and July in each year hereafter during the continuance of said contract; that is to say, during the term of 20 years that said contract remains of force. And it is ordered, adjudged, and decreed by the court that a writ of fieri facias issue in favor of the complainant against the said defendant for the collection of said rentals, and that such writs may be hereafter applied for as may be necessary to fully carry this decree into effect. And it is further ordered, adjudged, and decreed by the court that an accounting be had before W. A. Wimbish, Esq., special master, between the said Columbia Avenue Savings Fund, Safe Deposit, Title & Trust Company, trustee, and the said Dawson Waterworks Company, and the said city of Dawson, in order that it may be ascertained what, if anything, is due by the said city of Dawson for water furnished by the said Dawson Waterworks Company under the agreement made in commutation of city taxes, and that the value of the water so supplied be allowed as a credit against the demand of the said city of Dawson for the amount due by the said Dawson Waterworks Company as ad valorem taxes on its property; and until said accounting shall be had, and the said city of Dawson shall credit on the proper tax bills the amount due and unpaid by it on account of water rentals, the temporary injunction heretofore granted against the said city of Dawson from proceeding with the collection of tax executions issued by it be continued in force. And it is further ordered, adjudged, and decreed by the court that the city of Dawson and the Dawson Waterworks Company, and each of them, be decreed, directed, and required to specifically perform the aforesaid contract forming the subject of this suit, and to severally comply with their respective obligations arising and to arise thereunder, and, to this end, that an injunction issue, requiring such specific performance. And it is further ordered, adjudged, and decreed that complainant do recover of said defendant the city of Dawson the costs of this proceeding,.to be taxed by the clerk, including the compensation of the special master heretofore allowed, for which execution as at law may issue.

Notice having been given of an appeal in this case, a stay of 60 days from date is allowed.