6 Mont. 502 | Mont. | 1887
Lead Opinion
This was a suit in the district court of Lewis and Clarke county, brought by “William Davenport, "William C. Child, Thomas C. Power and Kobert S. Hale, against Theodore H. Kleinschmidt, as mayor, and John Watson and others, as aldermen of the city of Helena, and George-F. "Woolston, for a perpetual injunction against the defendants, restraining them from in any manner carrying out a certain contract, alleged to be illegal, by laying any mains or water-pipes, or erecting any hydrants in the city of Helena, or by issuing any warrants for any water supplied to said city under the said contract. On the 4th day of December, 1886, the judge of the district court entered . an order enjoining the defendants from carrying out the contract and from doing any act thereunder. Afterwards a motion was made to dissolve the injunction, for various reasons, and the same ivas, on the 13th day of December, 1886, overruled; and from this order overruling the motion to dissolve the injunction therein the defendants appeal to this court.
George F. Woolston was not served with the summons in this suit, nor with the writ of injunction; neither did he appear in the district court nor take part in the motion for dissolution; nor did he appeal to this court. Hence he is not before this court; and this cause must be considered as if he were not a party thereto; and he is not directly affected by the result of this proceeding. The only parties hereto properly before this court are the mayor and aider-men composing the city council of the city of Helena, who are the appellants heretofore named. The contract alleged to be illegal, on which this suit is based, is in the form of an ordinance, passed by the city council, the terms whereof ■were to be accepted by Woolston by filing a writing with the city clerk of Helena.
A preliminary question, which meets us at the outset, is whether or not the plaintiffs herein have the right to institute and maintain this suit. The complaint alleges that they are residents and tax payers of the city of Helena,
In the Missouri case above referred to, decided in 1873, Judge Ewing, in an exhaustive opinion, discusses the question and the authorities on both sides, and arrives at the conclusion “ that the decisions which affirm the right of the plaintiffs, or those standing in the same relation to such controversies, to maintain the action, rest upon a more solid foundation of principle and reason than those holding the contrary doctrine.” 52 Mo. 89.
Mr. Dillon, in his excellent work on Corporations, collates the authorities, and discusses the subject at some length. He says: “ In this country, the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations, and their officers, from transcending their lawful powers, or violating their legal duties, in any mode which will injuriously affect the tax payers, such as making an unauthorized appropriation of the corporate funds, or an illegal disposition of corporate property, or levying and collecting void and illegal taxes and assessments upon real property, under circumstances presently to be explained, has been affirmed or recognized in numerous cases in many of the states. It is the prevailing doctrine on this subject.” 2 Dill. Mun. Oorp. § 73Í, p. 829. And the same doctrine is laid down explicitly by Mr. High, in his standard work on Injunctions, § 1298.
If, as is alleged by the appellants in their motion for dissolution, this injunction, being granted without the summons being served on other parties, would be nugatory and1 of no effect, then no one is injured by the order, and no
It is suggested by counsel on behalf of George F. Woolston that, conceding, for the sake of argument, that the ordinance may be void in some particulars, as being ultra vires, and positively forbidden by the charter of the city or the act of congress, still there are certain sections of it, as those that grant the license or privilege of laying pipes or mains in the streets of the city, Avhich must be held valid, inasmuch as this privilege or license is not exclusive, and the city council has the undoubted right to grant such a license or privilege to any person. It is contended that the ordinance in its several parts is severable, and that such portions thereof as are void should be annulled, and such parts as are valid should be suffered to remain in force; or, as it may be stated in other words, that, although the ordinance may be void as a contract to pay money out of the city treasury, still, as a license to lay pipes and mains in the streets of the city, it is valid. However reasonable this vieAV of the matter may be, and hoAVever well supported by the authorities, Woolston is not in a position to urge this court to act thereon. He is not before the court. If he was dissatisfied with the terms of the order granting the injunction, he should have appeared in the court below, and made his motion to dissolve or modify the order or the writ, so as to exclude this prohibition therefrom, and leave the license granted to him to. lay pipes and mains in the streets in full force. Not having
But the same suggestions are made on behalf of the members of the city council, who are property before this court as the appellants in this case. In so far as that clause of the injunction which forbids “laying any mains or water-pipes, or erecting any hydrants, in said city of Helena,” is concerned, it is very evident that this was not intended to apply to these appellants. No allegation in the complaint sets out that they are about to lay pipes and mains, or to erect hydrants in the city; and it was not intended by the order of injunction that they should be forbidden so to do. Indeed, it was argued and insisted upon by counsel for respondents that the city council should construct the water-works, for and on behalf of the city, and this would ¿require them to lay the pipes and mains in the -streets, and erect the necessary hydrants. But it is clear from the pleadings and orders herein made that this clause of the writ and the order could only apply to Woolston and his servants or agents; and, as we have already seen, he has not complained of it, or made any motion or appeal in regard thereto. And inasmuch as the appellants are not affected by this portion of the writ, it need not be determined by us at this time whether the different portions of the ordinance are severable or not.
So we pass from the preliminary matters to the main questions involved herein. There was no answer in this case below. The record consists of the complaint, with the ordinance attached as an exhibit, the summons, the order granting the injunction, the writ of injunction, the motion to dissolve, and the order made thereon. The question submitted is the correctness of the order made by the court below, overruling the motion for dissolution of the injunction. Yarious reasons are assigned why this injunction should have been dissolved, — that it was improvidentty is
Then, let us first examine the equity in the bill, or the reasons for granting the injunction set forth in the complaint. They are briefly as follows: That the plaintiffs are tax payers of the city of Helena, and the defendants compose the mayor and city council thereof; that the defendants are about to enter into an illegal contract with Woolston for supplying the city with water, whereby there will be illegally expended out of the city treasury the sum o’f $15,000 per annum, or $1,250 per month, for the next twenty years. The contract intended to be made consists of an ordinance on the part of the city council, and a written acceptance thereof by Woolston. It is contended that the ordinance is void, for the reason that the city council has no power to make it, (1) because it is not authorized by the charter and is ultra vires; (2) because it is forbidden by the charter; (3) because it is forbidden by the act of congress of July 10, 1886.
The ordinary powers of municipal corporations are well defined and understood. It is well said by Mr. Dillon, in his work on Municipal Corporations, that “it is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,— not simply con
The city charter of Helena contains the following provisions: “The city council shall have power to provide the city with water, erect hydrants and pumps, build cisterns, and dig wells in the streets, for the supply of engines and buckets (section 8, page 8), to provide for the prevention and extinguishment of fires.” Section 18, page 9. Under the powers to provide the city with water, and to erect hydrants, and to provide for the prevention and extinguishment of fires, are doubtless included, as necessarily incident, thereto, or implied therein and essential thereto, the power to do this by agents employed for that purpose, and to make contracts with individuals or other corporations to do the same. The city could scarcely accomplish such objects in any other way; and it is hardly probable that any other method was contemplated in the granting of the charter. Though, doubtless, the city council could cause wrater-works to be built, and own, operate and control them thereafter as the property of the city, the charter does not limit the city corporation to either one method or the other. Any appropriate means necessary to carry out the objects would be properly within the powers granted to the city council in the charter. East St. Louis v. East St. Louis G. L. & C. Co. 98 Ill. 424, 425.
Then, the power to provide the city with water, by making a proper contract with some person to erect waterworks, and sell water to the city, being conceded, the next question that presents itself is as to the power of the city to make this particular contract. Is the present such a con
As far as this case is concerned, either of the definitions is sufficiently clear, and both are applicable. It cannot be said that Woolston is to have, under the ordinance No. 93, any exclusive right to use the streets of the city for the laying of pipes or mains. It is believed this is provided against in sections 1 and 9 of the ordinance. But the twentieth section reads as follows:
“ Section 20. The said city of Helena expressly reserves. the right to license and grant charters to other persons and companies, to convey, distribute and sell water within said city to private consumers, not, however, in violation of this
This gives Woolston the exclusive right and power of selling Avater to the city of Helena, for the period of tiventy years, at the minimum rate fixed in the contract; and his rights in the premises are not to be abridged by any misconstruction thereof. If this is not a monopoly, it is very . difficult to conceiA'e of one. It is true that there is no restriction on any other person or company furnishing or selling Avater to the people of Helena, if anjr one could undertake . to do so without the benefit of the city’s patronage; but it' is scarcely likely that any other company could or would undertake to supply the people in competition Avith Woolston, supported under this contract by the powerful adArantage of the exclusive custom of the city of Helena, at rates already fixed and unchangeable. Then, as to the citizens also, this contract secures a practical monopoly, although, speaking from a legal standpoint, the monopoly is confined to the Avater used by the -city for the extinguishment of fires, and the cleansing of sewers, and other municipal purposes.
But it is claimed by counsel, in a written argument filed herein, that there is no “ exclusive privilege ” or monopoly granted to Woolston or his associates, because the ordinance “ expressly provides that nothing therein contained shall give to him or them the exclusii'e right of occupying the streets, or conveying, distributing, or selling water throughout the city. . , . The reservation here is ample to allow the city, at any time, to grant the use of its streets to any other water company, and agree, so far as the needs of the city might require, to take water from it” So far as the use of the streets is concerned, and even in regard to conveying, distributing and selling water, the position is well taken. No exclusive privilege is granted as to these. But in regard to the city reserving the power at any time to
The case of the Union Ferry Company, 98 N. Y. 150, cited by counsel, has no similarity to the case at bar. In that case the learned judge, Kappalo, discusses the meaning of the terms “ exclusive privilege, immunity, or franchise,” and gives several of the most familiar instances of cases which come within the constitutional inhibition of the state of New York in regard thereto. He says: “The word £ exclusive5 is derived from £«r,’ out, and £ daudere] to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoying a similar privilege or franchise.” 98 N. Y. 151. That is exactly what this ordinance does in regard to furnishing water.to the city of Helena. He then enumerates several well-known cases of monopoly or exclusive privileges or franchises, among others the following: “ The charter of the Mohawk Bridge Company, which prohibited ferries across the river one mile above and one mile below the bridge (Mohawk Bridge Co. v. Utica & S. R. Co. 6 Paige, 554); the lease by the corporation of the city of New York, in 1814, of the Pulton ferry, in which the corporation covenanted that it would not grant or permit any other ferry to the southward of the ferry at the Catherine slip (Costar v. Brush,, 25 Wend. 628); the charter of the Delaware Bridge Company, which prohibited the erection of any other bridge, or the establishment of any other ferry, within two miles above or below (Chenango Bridge Co. v. Binghamp
But it is insisted by the counsel for respondents that the making of this contract, or the passing of this ordinance, is ultra vires, “ because it ties up and embarrasses the functions of future councils.” Every ordinance in the nature of a contract would do this to some extent. And, unless the contract entered into by means of this ordinance should
The city of Helena was chartered in 1881. Twenty years ago it was a small mining camp on the banks of Last Chance gulch, containing a few hundred people. The last official census of the city, taken in 1880, shows a population of not more than four thousand. Eeliable data place the present population at about ten thousand. The ordinance provides that Woolston shall receive for the water running through each of the first one hundred and fifty hydrants provided for, $20 per year out of the general fund, and $80 per year out of the fire department fund, being $100 for each hydrant altogether, and amounting in the aggregate, for the one hundred and fifty hydrants, to $15,000 per annum. Then, as the mains are extended, additional hydrants are required to be erected, and for these Woolston is to receive $13 per year out of the general fund, and $52 per year out of the fire department fund, making in the aggregate $65 per year for each additional hydrant. If ten miles more of pipe should be laid, at least one hundred additional hydrants must be paid for, at an annual cost of $6,500. If the whole cost of the first one hundred and fifty hydrants were to be paid out of the fire department fund, it would take every dollar which could be placed into that
In considering the rights, powers and liabilities of a city council, a plain and obvious distinction is drawn between the character of a city as an individual or corporation and as a branch of the government, or, as it may be termed, between its corporate and its legislative powers. This distinction is well expressed by Chief Justice Savage in the case of Presbyterian Church v. City of New York, 5 Cow. 540. He, in speaking of the city, says: “ In ascertaining their rights and liabilities, as a corporation or as an individual, we must not consider their legislative character. They had no power, as a party, to make a contract which should control or embarrass their legislative powers and duties. Their enactments, in their legislative capacity, are to have the same effect upon their individual acts as upon those of any other persons, or the public at large, and no other effect.” 5 Cow. 540.
We have already considered the matter as far as the contract might restrain future councils in their corporate
But is such a contract as that proposed by the ordinance in controversy actually forbidden by the charter of the city, as is contended by the respondents ? Let us examine the charter, for the purpose of pointing out the precise section imposing the restriction. It is therein prescribed “that said city shall not be authorized to incur any indebtedness on behalf of said city, for any purpose whatever, to exceed the sum of $20,000.” Section 17, as amended by the act of 1883, p. 19 of Charter. The allegations, of the complaint, Avhich, for the purpose of this case, are for the present taken as true, show the present bonded indebtedness of the city to be $19,500, and the floating debt, consisting of outstanding warrants, to be $15,000. No distinction is draAvn in the charter betAveen bonded debt and floating-debt, and, from the figures presented, it clearly appears that the limit has been already reached, and that the city cannot incur any further indebtedness, until some of that
A distinction is drawn by counsel for the appellants between the terms “debt” or “indebtedness,” and “liability,” and it is asserted as too plain for discussion that this contract creates no debt or obligation in the nature of a debt “ in frmenbi” and that “ no indebtedness or even liability on the part of the city to pay for this water arises until the hydrants have- been supplied, and the water furnished to them for a given month.” Let us inquire what is the proper signification of the term “indebtedness,” as used in the restrictive section of the charter. Webster defines “ indebtedness ” as “ the state of being indebted or placed in debt, or under an obligation, or held for payment or requital.” This remits us to the proper meaning of the term “ debt.” Bouvier defines a debt to be a sum of money due by a certain and express agreement. 1 Bouv. Law Diet. 436. One of the latest law lexicographers defines debt as follows: “ In the strict sense of the word, a debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor). Hence, debt is properly opposed (1) to unliquidated damages; (2) to liability, when used in the sense of an inchoate or contingent debt; and (3) to certain obligations not enforceable by ordinary process. Debt denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.” 1 Rap. & L. Law Diet. 351. Blacltstone, in his Commentaries, defines the word as follows: “ The legal acceptation of ‘ debt5 is a sum of money due by certain and express agreement; as by a bond for a determinate sum; a bill, or note; a special bargain; or a rent reserved on a lease, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it.” 3 BL Comm. 154; 2 Cooley’s Bl. 101.
But the precise term “ indebtedness,” as used in this charter, has been heretofore many times interpreted by the courts. The constitution of Iowa has a provision as follows : “No county, or other political or municipal corporation, shall be allowed to become indebted, or in any manner, or for any purpose, to an amount in the aggregate exceeding ñve per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax list previous to incurring such indebtedness. Article 11, § 3, Code, 787.” Burlington Water Co. v. Woodward, 49 Iowa, 61. In construing this very provision of the constitution, the supreme court of Iowa, in a well considered case, uses the following language: “ It is believed the constitution applies not only to a present indebtedness, but also to such as is payable on a contingency at some future day, or which depends on some contingency before a liability is created. But it must appear that such contingency is sure to take place, irrespective of any action taken or option exercised by the city in future. That is, if a present indebtedness is iucurred or obligations assumed, wrhich, without further action on the part of the city, have the effect to create an indebtedness at some future day, such are within the inhibition of the constitution. But if the fact of the indebtedness depends upon some act of the city, or upon its volition, to be exercised or determined at some future date, then no present indebtedness is incurred, and none will be until the period arrives, and the required act or option is exercised, and from that time only
Indiana has a constitutional provision similar to that of Iowa; and the latest case decided in construction of it is the case of City of Valparaiso v. Gardner, 91 Ind. 1. The contract entered into between the city and Gardner ivas held by the court not to be an indebtedness, mainly on the ground, it seems, that the supplying of water was one of the legitimate current expenses of the city government;
For a construction of a similar constitutional provision, we may examine the case of Prince v. The City of Quincy, 105 Ill. 142, 143, in which the supreme court of Illinois reviews several Illinois cases, and, through Mr. Justice Mulkey, who delivered the opinion of the court, say:
“While the provision of the constitution just cited declares, in emphatic terms, that a city or other municipality, whose existing indebtedness already exceeds the constitutional limit, as was the case here, shall not become further indebted ‘in any manner or for any purpose,’ it is seriously contended by counsel for appellant that a municipality thus circumstanced may become indebted for supplies to
These views appear to us sound and correct; and they apply with peculiar force'to the case at bar. In this case the tax to meet these expenses is not actually levied, and the issuance of the warrant does not operate to prevent any liability, but is the very best evidence of the liability of the city to the contractor. No warrant could issue in his favor unless a debt existed to liquidate, for which the warrant was given. And should it not be paid when presented, and no fund is provided by this ordinance therefor, a suit against the city could at once be begun to enforce payment. Under the authorities above cited, reviewed and quoted, we are constrained to hold that the contract with Woolston creates an indebtedness, within the true intent and meaning of the act of the territorial legislature, amending the city charter and limiting the power of the city council to “incur any indebtedness on behalf of said city for any purpose whatever to exceed the sum of $20,000.” There is no special fund provided, as in Iowa, out of which these water-rents can be paid when they become due. There are no funds on hand, as in Indiana, to meet the demands with the cash when presented. But, as in Quincy, Illinois, the warrants, when issued, are more than likely to become a part of the floating debt which now, in warrants, amounts, according to the record in this case, to more than $15,000. It is true that
As the tax-rolls now stand, a levy of three mills would leave only $3,000 in the fire department fund, and $12,000 in the general fund, after satisfying the monthly demands of Woolston and his associates for one year. It nowhere appears that this sum would be sufficient for the other necessary current expenses of the city, or, as it is elsewhere expressed, “sufficient to sustain corporate life in the city.” The establishment of thirty-eight more hydrants, in addition to the one hundred and fifty provided for, would more than exhaust the whole ■ fire department fund, and leave only $10,021 in the general fund. And the laying of four miles additional water-mains would make it incumbent on the city to pay the rent for forty additional hydrants, which might be done at any time under this contract. But for the one hundred and fifty hydrants which are to be erected at once, the city, under this contract, would have to pay a monthly rental of $1,250; and whatever may be said of the payment of $15,000 in the course of a year, or of $300,000 in the course of twenty years, no one can reasonably deny that an indebtedness' is created, within the true intent and meaning of the charter, to, the amount of $1,250, which will have to be paid as soon as the water has'been standing in Woolston’s hydrants, in the city of Helena, for the period of one calendar month. But it is contended that this is a cash transac- - tion, and that, as soon as the month expires, the money will be waiting for Woolston at the city treasury. If so, according to the record herein, he will be more fortunate than some other creditors of the city, who hold the $15,000 of
But we must come directly and squarely to the proposition insisted on by the respondents, that the contract proposed to be made transcends the thirty-seventh section, as amended, of the city charter. That section, in full, reads as follows:
“ Section 37. Thatthe city council shall at any time, when they shall deem it expedient for the interests of the city, for the purpose of paying the debts of the fire department, or for the erection of permanent improvements, or for taking up outstanding warrants against the city treasury, have authority and may issue, on the credit of the city, bonds, with interest-bearing coupons, payable semi-annually, and in such amount as may be necessary for the purpose herein specified; provided, that the aggregate amount of said bonds, and all indebtedness and liability of the city for any and all purposes, shall not at any time exceed the sum of $20,000.” Charter of Helena, p. 20.
Let us consider the section without regard to section 17, preceding. It is insisted by counsel for appellants that this section of the charter alludes only to funding the indebtedness and the issuance of bonds. The restriction therein contained, though in the form of a proviso, is none the less effective in its operation, and forbids not only the creation of any indebtedness, but even of incurring a liability, to exceed $20,000. But it is conceded the contract with Woolston, though it does not create a debt, does create a liability, but it is contended that there is a broad distinction between these terms. Whatever may be the general rule in regard to the signification of these terms, it clearly appears that the proviso to section 37 (Charter, p. 20) is a legislative construction of the term “ indebtedness ” used in section 17 (Charter, p. 19) of the same act. The first section (17) lim
In construing the section previously referred to in the constitution of that state, the supreme court of Illinois say: “In considering what construction shall be given to a constitution or a statute, we are to resort to the natural signification of the words employed, in the order and grammatical arrangement in ivhich they are placed; and if, when thus regarded, the words embody a definite meaning, Avhich involves no absurdity, and no contradiction betiveen different parts of the instrument, then such meaning is the only one we are at liberty to say Avas intended to be conveyed. There is no difficulty in ascertaining the natural signification of the words employed in the clause of the constitution under consideration, and to give them that meaning involves no absurdity or contradiction with other clauses of the constitution. The prohibition is against becoming indebted,— that is, voluntarily incurring a legal liability to pay, ‘ in any manner or for any purpose,’ when a given amount of indebtedness has previously been incurred. It could hardly be probable that any two individuals of average intelligence could understand this language differently. It is clear and precise, and there is no reason to believe the con
Then, it seems to be too clear for argument or further consideration,that, whether this contract be considered asa debt or a liability, it is prohibited by this section also of the city charter, and that, for that reason, it is beyond the authority of the city council to make it, or to attempt to carry it out in any particular.
But it is further contended by the respondents herein that the contract proposed to be made with "Woolston is void, “because it is in violation of the charter provisions relative to advertising in case of contracts involving an expenditure of over $100.” . The exact words of the charter provision referred to read as follows: “ And in all contracts involving the expenditure of $100 or more, the city council shall advertise the same, with specifications, for a period to be prescribed by ordinance, and award the same to the lowest responsible bidder; and they shall so advertise all contracts when convenient so to do.” Charter of Helena, p. 15. The only reasons given why the council should not comply with this requirement of the charter are that it is “ not applicable to a plan for supplying a city with water, through a system of water-works, involving the use of the streets and hydrants;” and that “ it is very apparent that .this
The next objection raised to this ordinance or contract is that it is in violation of the act of congress passed the 10th of July, 1886. The fourth section of that act reads as follows : “ That no political or municipal corporation, county or other subdivision in any of the territories of the United States shall ever become indebted in any manner or for any purpose to any amount in the aggregate, including existing indebtedness, exceeding four per centum on the value of the taxable property within such corporation, county or subdivision, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such, indebtedness; and all bonds or obligations in excess of such amount, given by such corporations, shall be void; that nothing in this act contained shall be so construed as to affect the validity of any act of any' territorial legislature heretofore enacted, or of any obligations existing or contracted thereunder, nor to preclude the issuing of bonds already contracted for, in pursuance of express provisions of law; nor to prevent any territorial legislature from legalizing the acts of any county, municipal corporation, or subdivision of any territory, as to any bonds heretofore issued or contracted to be issued.” Pub. Act No. 159, Forty-ninth Congress, First Sess. '
That, by entering into the contract proposed, the municipal corporation of the city of Helena would incur an indebtedness, within the meaning of the act of congress, we think has been sufficiently shown in the foregoing discussion and the authorities herein cited. The only question remaining to be settled is the amount of the indebtedness. The
But was the injunction improvidently or prematurely issued.? It is said by the eminent counsel for Woolston herein that “ it will be time enough to issue an injunction to prevent the city from paying for water when it has been furnished, and the council is threatening to do it.” Let us see whether or not this is the case. An examination of the proposed contract itself will show. Section 25 of the proposed ordinance reads as follows:
“ There is hereby appropriated out of the yearly revenues' of the city of Helena, for the use and benefit of the said; George F. Woolston, his successors or assigns, during the continuance of the franchise hereby granted, the following sums of money, viz.: Out of the general fund of the said' city, the sum of $20 per year for each hydrant required by this ordinance to be kept and maintained by said George; F. Woolston, his successors and assigns, on the thirteen and-
It is readily seen from an inspection of the foregoing
In an Indiana case, wherein the city of New Albany entered into a contract with the G. F. A. T. Co. for their fire-alarm boxes, at a given price, Sackett enjoined the city council from carrying out the contract, on the ground •that the indebtedness of the city had already exceeded the constitutional limit. The supreme court uses this language: “ It is further insisted by the appellees that other remedies were open to the appellant; and, for that reason, if for no other, the facts alleged did not make a case for a restrain
These principles, laid down by the text-writers, and approved by the courts, are not by any means novel. More than fifty years ago the supreme court of Ohio took occasion to announce this doctrine. In a case where a party was “ threatening ” to cut a mill-race through the plaintiff’s land, without his consent, in order to convey the w7ater to the mill of defendant, an injunction was sought for and granted, and a motion to dissolve was made on the ground that the writ was granted prematurely, and that the land was of very little value, and that many things remained to be done before the defendants would be ready to begin
But we find there are other authorities more directly in point to sustain the issuance of this writ of injunction. Because the cases referred to are not accessible, we must quote from the text-writers: “When an act, about to be committed by a municipal corporation, is clearly illegal, and its necessary effect will be to impose heaA^y burdens upon the property of citizens and tax payers, a court of equity is
It is useless to multiply authorities, or further discuss this question. From the authorities, and the facts and circumstances of this case, it is clear to our minds that this injunction was neither improvidently nor prematurely issued.
There being no error in the judgment of the court below in overruling the motion to dissolve this injunction, the same is hereby affirmed.
Judgment affirmed.
Dissenting Opinion
{dissenting). I cannot agree with the majority of the court upon the decision of this cause. I am of the opinion that the restraining order, in some respects, is absolutely useless; in others, that it is upon the face of the facts stated in the motion papers, premature; and that, therefore, it should have been vacated. In that view of the case, I feel that it is ill advised to consider whether or not the ordinance, in any of its sections, is void. The decision of a court that an ordinance or a law is void is one upon a grave and important subject. It should not be rendered when not necessary; when made, it should be final. It should be well considered.
The ordinance which, by the majority of the court, upon a preliminary matter, is declared to be null and void, at least in part, was passed by the legal authorities, for the purpose of providing sufficient water for the health and
I repeat that I shall not pass upon the validity of any or all of the sections of the ordinance, except in so far as they are necessarily involved in the position which I assume, that the order of injunction was premature. I am not to he considered as agreeing with or dissenting from the majority of the court upon any proposition not thus directly involved. I have no doubt that the plaintiffs had the right to commence this action. They are tax payers, and, in so far as the contract portions of the ordinance are concerned, the plaintiffs are directly and personally interested; but, in so far as the license part of the ordinance' is concerned,—
In considering the subject, we may divide the persons enjoined into three classes: (1) The defendant Woolston; (2) The city council, composed of the mayor and the defendants who are aldermen; and (3) the mayor and the clerk of the city of Helena.
1. Woolston is not a party to the appeal. He need not be considered; and any right that he may have could not be noticed except in so far as those rights are involved in the terms of the order restraining the other parties defendant.
2. The city council, which, by the terms of the charter, is composed of the mayor and the aldermen. They have passed the bill; no restraining order can affect the passage of the bill. Now, under this ordinance, what are the duties of the council ? and, in discharging those duties, how does the council threaten some definite, certain, irremediable wrong to the plaintiffs, which entitles the plaintiffs to an order restraining the council from discharging those duties? Let us briefly consider the terms of the ordinance, so far as they concern the council. Section 18 provides: “The right is hereby reserved to the city to govern, by ordinances to
It will be observed, upon a careful examination of the ordinance, that section 1 grants the defendant "Woolston the right to lay water-pipes, for the purpose of furnishing water “ to all persons, bodies or corporations within the city desiring to purchase the same;” and the section provides that he shall not have the exclusive right so to do. The council certainly has right and power — nay, it is the duty of that body — to provide the people of the city of Helena with water. See the charter of the city of Helena. Section 1, then, gives that license. Section 2 is supplementary to section 1, giving power to dig the ditches necessary, and providing that the streets shall be restored to their former condition. Section 3 provides for the amount and quality of the water. Section 4 provides for the amount of pressure in the pipes. Section 5 provides the number of miles of mains which must be located, and the diameter of the pipes in the various quarters. Section 6 provides the number of hydrants, and nature thereof. Section 7 provides for the laying of pipes in the future, when 'Woolston shall be directed so to do. Section 8 pro
I have quoted fully, so that the point which T wish to make may be clear: It is apparent from an examination thereof, that these thirty-two sections may and can be divided into four groups. First group: Sections 1 and 2 give a license to Woolston to lay pipes and to furnish water to any one within the city limits. Second group: Sections 3 to 18, both inclusive, section 21, sections 26, 27, 28, 29, and 32, relate exclusively to the mariner of laying the pipes, the pressure, the quality of the water, the bonds to be filed, and the protection of the works when built. Groups 1 and 2 of these sections relate entirely to the license. Third group: This includes all sections not already mentioned, except section 25. This group relates, by mere inference, to the contract, but directly to the same subject as those in the second group. It is composed of sections 19, 20, 22, 23, 24, 30, and 31. By a reference to these sections, or digest thereof hereinbefore set out, it will be seen that those sections neither separately nor collectively could be used to enforce any liability against the city; that all that can be said of those sections, in that respect, is that the city has the right to use the water; and that, if it did so use the water, there would be an implied contract, but not one contained in those sections, that the city would pay a reasonable value for the water so used. Fourth group: This is section 25, which contains all the terms of the contract upon the part of the city, and which alone creates any obligation upon the city to pay any money, or do anything whatever, which could in any way injure the plaintiffs.
Whatever name we may choose to apply to these provisions, whether we shall call any or all of them legislative or business functions of the city council, it is nevertheless apparent that the sections creating the license granting the franchise are perfectly independent of all other sections of the ordinance. That being the case, they should not be de
It will be observed that the court was considering a city ordinance; so are we. It will be further observed that the provision which was held valid, and the provisions of which the court say “ it may be conceded . . that some of its provisions are unwarranted,” are in one and the same section. Even so they were held severable. In the ordinance which we are considering, the parts which are objectionable as a contract, and the parts granting the license, are sections separate and apart from each other. The au
It is clear to me that the order should be modified, at least so far as the license, and all things connected therewith, are concerned. Upon this I differ from the conclusion reached by a majority of the court. They do not deny that, the sections are severable; but they claim that this part of the injunction is not before us. This they claim because, the defendant "Woolston not having been served with summons or order restraining him from using the license, neither he nor those acting only upon the part relating to the license are affected. This is. open to two .objections: Either the order is useless as to the aldermen, or it restrains them from doing something which is a prerequisite to the-rights granted under the license. For it must be remembered that the aldermen have nothing to do with the issuing of the warrants. That is confined by section 25 to the
Section 8 of the ordinance provides that the work of laying the mains shall be done under the supervision of the street commissioner. He is an agent of the municipal authorities; and the order restrains him from doing that which is part of the terms of the license, and which is no part of the contract. Section 24 provides for the examination and acceptance of the work. This is not a portion of the contract, but is one of the conditions that must be complied with before the inhabitants of the city can have the water. It is a beneficial provision, one to be exercised by the council, and one which the council should not be restrained from complying with, because it relates only to the license portion of the ordinance. Finally, section 32 provides for the filing of a bond, as one of the prerequisites. That bond is to be filed with the city clerk, and is to be approved by the mayor. The order, in so many words, restrains the city clerk from accepting, and the mayor from approving, any such bond. Those acts refer to that which concerns the license only, and the order restraining those acts should be modified, at least in respect to them.
To put the question briefly: (1) The statute can be divided into two parts; one consisting of those sections which
As to that section of the ordinance which relates to the contract, I think that the question of monopoly can well wait until the final hearing of this cause. The plaintiffs are not a water company, wishing to furnish water to the city; they come here as tax payers, and as such, I can see no great wrong threatening them as far as the monopoly in that section is concerned.
It remains only to consider that portion of the ordinance relating to the issuance of warrants. This court takes judicial notice of the seasons of the year, of the climate of Helena, and of the terms of the district court. The order was granted on December 4, 1888. The court judicially knows that it will be some months before Woolston can commence to lay mains or pipes. We also know that it takes some time to lay thirteen miles of mains. The ordinance directs that the first warrant issued thereunder shall not be issued until the works shall have been in operation one entire month (see sec. 25), and we judicially know that there will be a term of the district court, at which this question can be determined, within three months. In view of these facts, I think the issuance of the temporary order was useless, and should therefore be vacated, for no injury to the plaintiffs can happen in the meantime, and Woolston can claim no right under that section by proceeding with his
The case of Crampton v. Zabriskie, 101 U. S. 601, is much relied upon by respondents. The opinion in that case was written by Mr. J ustice Field, who, as a justice of the supreme court of California, established for that state, and maintained in many authorities, the principle that equity will not restrain a fanciful injury which is based upon a void act. In the United States case the learned justice was dealing with no such fanciful wrong. Crampton had brought action against a city to compel it to pay certain bonds issued by the city. The bonds had been declared invalid before Crampton brought the action referred to. Zabriskie brought an action to restrain the prosecution by Crampton of that action. There was no fanciful wrong there; payment of the bonds was threatened. So, with the case at bar, when the warrants shall have been issued and payment threatened, there will be an injury threatening, against which plaintiffs can be protected in a court of equity.
I am therefore of the opinion that the judgment of the court below, overruling the motion to dissolve the temporary injunction, should be reversed.
