74 Minn. 180 | Minn. | 1898
The present city of Little Falls was organized first as a village (Sp. Laws 1879, c. 6), with the power to establish such regulations for the prevention and extinguishment of fires as it might deem expedient, and afterwards as a city (Sp. Laws 1889, c. 8), with power to erect waterworks for the supply of water to the city and its inhabitants, or to grant to third parties the right to erect waterworks -for the same purpose, and to lay water pipes and mains in the streets of the city, in accordance with such terms and conditions as might be agreed upon. In January, 1889, the village council passed an ordinance, which, as subsequently amended by the common council of the city, granted to certain persons, their successors or assigns, for 30 years, the privilege of laying water pipes and mains in the streets of the city on the following, among other, terms and conditions:
The grantees or their successors were within two years to have waterworks of a specified extent, capacity and power constructed and ready for use, and to connect a specified number of fire hydrants with the water mains; the common council to have thereafter the right to order an extension of the mains along other streets which could be reached by a continuance of existing mains; the water company to put in fire hydrants at specified distances along such extensions, and to supply water at established rates to the inhabitants along the streets where the pipes were extended. The grantees were to maintain the mains ' and hydrants ready for use for fire protection and operate the waterworks, after their completion, for the full term of 30 years. For the use of these hydrants (which proved to be 55 in number) the city was to pay $80 each per year for the full term of 30 years. The city was to have the right to take from the mains water to supply all buildings occupied by it for public purposes. The water
The ordinance provided for its acceptance by the grantees within 60 days, upon which it should constitute a contract between the parties, which should not be altered or amended except by mutual consent. The grantees assigned all their rights and privileges under the ordinance to the defendant, the Little Falls Electric & Water Company. The ordinance was accepted by the grantees, and the waterworks were constructed and put in operation, and, presumably, in the absence of any allegation to the contrary, the water company» has complied with all the terms and conditions of the ordinance.
In addition to the foregoing facts, the complaint alleges that the needs of the city do not, never have, and will not for years, require a greater number of hydrants than 35; that $80 per hydrant per year is an unreasonable and exorbitant price, and at least $40 per hydrant per year higher than the reasonable value thereof; that the city and its officers, claiming and pretending that this ordinance is a valid and binding contract, are paying the water company $80 per year for each of the 55 hydrants, and intend to continue to do so unless restrained by court.
The plaintiff’s contention is that the ordinance, at least in so far as it assumes to obligate the city to pay this price for all these hydrants for 30 years, is void, because not within the scope of the power or authority of the village or city. Plaintiff, a resident and taxpayer of the city, brings this action, in behalf of himself and all other taxpayers, to enjoin the city and its officers from continuing to carry out the provisions of the ordinance by paying the water company $80 per year for each of the 55 hydrants. To this complaint the water company interposed a demurrer on the grounds that it did not state a cause of action, and that the plaintiff had not the legal capacity to sue. This appeal is from an order sustaining the demurrer.
2. This brings us to the merits of the case,.viz.: whether it was within the scope of the authority of the village or city council, to enter into a contract in behalf of the municipality obligating it to pay $80 a year for 30 years for each of 55 fire hydrants.
The vice, if any, in this ordinance, viewed as a contract, consists mainly, if not entirely, in the length of time for which it bound the city to pay annually this sum of $4,400 for fire hydrants. The number of hydrants, the price to be paid per hydrant, and the other provisions of the ordinance, are chiefly important in so far as they bear upon the question of the power of the village or city council to bind the city for so long a period of time. We have no doubt as to their power to contract with this or any other water company with reference to furnishing the city and its inhabitants with water. And, inasmuch as it might be impossible to induce any individual or corporation to expend the necessary capital to construct waterworks in a small village or city without assurance of patronage by the municipality itself for some definite amount and time, we have no doubt of the power of the village or city council to make' a time contract with the company for supplying the city with
Where municipal authorities are authorized to contract in relation to a particular matter, they have a discretion, as to methods and terms, with the honest and reasonable exercise of which a court cannot interfere, although they may not have chosen the best method, or made the most advantageous contract. But this is not an unlimited and arbitrary discretion to make any kind of contract that they see fit, as the court below, in its memorandum, seems to think. If so, the city council might have made a contract running 100, or even 500, years, as well as 30 years. This would be a very dangerous doctrine, for by reason of the incompetency or dishonesty of these officials the powers of a municipality might be thus-bartered away for so long a period of time as to practically disable it from performing its public duties. While the ordinance, on its face, does not purport to grant any exclusive franchise, yet the practical effect is almost necessarily to give the grantees a monopoly for 30 years of the business of furnishing water to the city and its inhabitants. If the city is bound to pay $4,400 a year for 30 years for water for fire protection aloné, it probably could not afford to incur the extra expense of either building waterworks itself, or making any contract with any other company that would induce it to do so. Hence whatever improvements may be made in the future in the methods of supplying the public with water, in the quality of water supplied, or in the method of fire protection, the city and its inhabitants are tied down by this ordinance to the present system,
Little Falls was, and is, a new and small city, whose future was uncertain. Thirty years is almost a generation, and, in this age, a long time in the history of any community. It has been attempted to bind it for that length of time to pay for between 35 and 40 per cent, more hydrants than its present needs require, and to pay for them 100 per cent, more than their present value. It may never need any such number of hydrants, and the value of their use may never increase so as to equal the price agreed to be paid. For these reasons we are of the opinion that the provisions of this ordinance, providing that the city should pay this price for thig number of hydrants for 30 years, is, as to time, unreasonable and void, as being beyond the scope of the authority of the municipal authorities. What effect the invalidity of this provision will have on the balance of the ordinance we need not now consider. The fact that the plaintiff may have asked for more relief than he is entitled to under the facts pleaded does not affect the sufficiency of the complaint. It states facts entitling the plaintiff to an injunction restraining the city officers from continuing to pay the water company this money under this contract.
This will not in any way prevent the common council from providing the city with water, or in any way interfere with the exercise of their discretion as to the choice of ways and methods of doing so. They will remain at liberty to contract for such supply with the same company. They are not now paying this money in the exercise of any discretion, but on the ground that the city is legally bound by contract to pay it. The effect of the injunction will be merely to restrain their carrying out this invalid provision of the ordinance, and thus compel the municipal authorities to exercise in a legal way their power to contract for a supply of water for fire protection, and properly to exercise their discretion as to ways and methods, precisely as if this invalid provision had never existed. If, in the honest exercise of their legislative discretion, the common council concludes that the city requires 55 hydrants for fire protection, and that $80 per year per hydrant is a reasonable price, they would have the right to enter into a contract on those
Order reversed.
Upon application of. respondent, an order was made December 28, 1898, granting a reargument, but only on the following questions:
(1) Was the ordinance involved in this case legalized by Laws 1893, c. 191, as amended by Laws 1897, c. 224? And, particularly, was Little Falls a village incorporated under the provisions of Laws 1885, c. 145, within the meaning of Laws 1893, c. 191? (2) What effect, if any, should be given to Laws 1895, c. 8, § 132, as a declaration of legislative policy?
.On January 30, 1899, the following opinion was filed:
A rearguinent of this case was granted only as to the force and effect of certain statutes, which were not called to the- attention of the court on the argument already had. One of the questions for reargument was the following:
“Was the ordinance involved in this case legalized by Laws 1893, .c. 191, as amended by Laws 1897, c. 224?. And, particularly, was Little Falls a village incorporated under the provisions of Laws 1885, c. 145, within the meaning of Laws 1893, c. 191?”
While the initiative act towards the incorporation and organization of the village of Little Falls was Sp. Laws 1879, c. 6, instead of the action of the inhabitants in accordance with .the provisions of the general village law then in force (Laws 1875, c. 139), yet the special act expressly enacted that the territory was set apart and incorporated as a village under the provisions of the general law, except as hereinafter (in the special law) otherwise provided, and
The so-called “General Village Act of 1888” (Laws 1883, c. 73) may be omitted from consideration, as it was declared unconstitutional in State v. Simons, 32 Minn. 540, 21 N. W. 750. The next general village act was Laws 1885, c. 145. This superseded the act of 1875, and is still in force. The second section of this act pro:vided that • «
“Every village which has been or shall be organized or incorporated under the general statutes shall be hereafter governed according to the provisions of this chapter, to the end that uniformity of village government and equal privileges to all may be secured.”
In view of the expressed object of this section, the words “organized or incorporated” should be liberally construed, so as to include all villages governed by the provisions of the general law, without regard to how they were first technically incorporated or brought into being. We are therefore of opinion that the village of Little Falls became a village incorporated under the provisions of Laws 1885, c. 145, within the meaning of Laws 1893, c. 191.
This latter act is assailed by special legislation, regulating the affairs of a village, in violation of article 4, § 33, of the constitution. The ground of attack is that the classification adopted by the act is arbitrary. We think that counsel for the plaintiff have overlooked the fact that this is merely a curative act, intended to provide for a temporary object, to wit, the legalizing of a certain class of existing village ordinances and contracts. For such a purpose, a really distinctive class may, and often must, be based upon existing temporary circumstances. Cobb v. Bord, 40 Minn. 479, 42 N. W. 396;
The act is clearly applicable to all villages incorporated under the general statutes prior to January 1, 1891. The only villages organized prior to that date which are excluded from its operation are those incorporated and governed by special charters. The fact that these were governed by existing special laws was a good legal reason for excluding them from the class. In passing a general law, the legislature is not required to repeal existing special legislation, so as to include within the operation of the general law objects governed by such special legislation. Moreover, the fact that villages are governed by special legislation, granting them powers not only different from each other, but also different from those granted by the general law, might, of itself, be a good ground for excluding them from the operation of the general law, on the ground that they were not similarly situated. Substantially the same reasons apply to the exclusion from the operation of the act of villages of over 3,000 inhabitants which might have been previously organized under Laws 1891, c. 146, which are expressly granted very extensive powers in relation to contracting with private companies or persons for supplying their inhabitants with water or light.
But the classification is further assailed because the act does not include villages that may have been incorporated under the general law of 1885, between January 1, 1891, and March 1, 1893, the date of enactment of the curative act. This would not affect the validity of the act, if in fact there were no villages incorporated between those dates which had passed or made any invalid ordinances or contracts of the kinds or under the circumstances described in the curative act, to which the act would have applied, or which would have been affected by it, if its terms had been otherwise broad enough to include them. This presents a peculiar state of facts. This is not a matter which is necessarily the subject of proof on the trial, for the reason that a court will take judicial notice of all facts bearing upon the constitutionality of a statute. But we do not
By gp. Laws 1889, c.- 8, all the territory within the limits of the village, with some contiguous territory, was incorporated into the city of Little Falls, as the successor of the village of the same name. This act provided that, from and after its passage, the village municipal government should cease, and the city should thereupon succeed to all the property of the village, and be liable for all its debts, and that all rights, privileges and franchises theretofore granted in the village should continue and be in force in the city, with the same validity, and for the same time and upon the same conditions, as if granted by the city; also that all ordinances of the village, not inconsistent with the provisions of the act, were adopted as the ordinances of the city, and should remain in full force until repealed or amended by the city.
It is urged that the ordinance in question does not come within the operation of the curative act, because the village of Little Falls had previously ceased to exist, and the city of the same name became its successor, and the act does not apply to cities. It is true . the act does not apply to cities, but the subject of the act is not existing villages, but certain ordinances and contracts-passed or made by villages in the past. The whole act relates to the past, and is purely curative of past acts. The original ordinance was passed on January 10, 1889, while Little Falls was still a village, and therefore comes within the provisions of the curative act, notwithstanding the fact that subsequently, and before the act was passed, the village, as such, had ceased.to exist, and the city had become its successor. For the same reasons, we think the title of the act, to wit, “An act legalizing and confirming village ordinances and contracts in certain cases,” sufficiently expressed its subject.
But, while the original ordinance was passed by the village, it is alleged that'it was amended by the city, December 10, 1889, which
2. The second question for reargument is:
“What effect, if any, should be given to Laws 1895, c. 8, § 132, as a declaration of legislative policy?”
This is found in what is known as the “Howard Charter,” being “An act to provide for the incorporation, organization and government of cities,” and reads as follows:
“It [the city council] shall also have the power to contract with individuals, firms or corporations for the use of water for protection against fire and other purposes. It shall also have the power to contract with individuals, firms or corporations for the use of electric or gas light for street lighting and other purposes. Such contracts for water, electricity and gas to be made for such time as the council may deem for the best interests of the city, not to exceed thirty years for water, and not to exceed five years for gas or electricity for street lighting and other public purposes.”
Whatever this may amount to as a declaration of public policy, it must be kept in mind that it applies only to cities incorporated under the provisions of that act, and which must have at least 1,000 inhabitants, and not to villages incorporated under the provisions of Laws 1885, c. 145, and which, under the amendment of 1887 (Laws 1887, c. 62), may have only 175 inhabitants. In order to determine what effect, if any, should be given to this section as a declaration of public policy as to villages, all the provisions of the act of 1895 and of the general village law of 1885 should be examined and compared; for it does not follow that because the legislature might have deemed a 30-year contract for water by a city, under all the restrictions and provisions of the act of 1895, might
An examination of the act of 1895 will show that it is full of prohibitions and restrictions, designed for the protection of public interests against the improvident action of the city council, which are entirely lacking in the village law, — as, for example, the limitations upon the amount of the municipal indebtedness or liabilities; the requirement of a two-thirds vote of the city council to pass any ordinance or resolution appropriating money or creating any liability, or awarding or approving any contract for the payment of money; a three-fourths vote of the city council or a two-thirds vote of the electors to issue city bonds; that franchises and rights over and upon the public streets can only be granted by a three-fourths vote of the city council, and then only to the best bidder, after due advertisement. In short, the whole act of 1895 is full of such limitations and restrictions. A legislative declaration of public policy, if it be such, in the case of populous cities, surrounded by all these safeguards and limitations designed to protect the public, cannot be given any force as a declaration of public policy in the case of small villages, organized under the village law of 1885, providing for a much more simple form of government, and lacking almost all of the safeguards found in the act governing cities.
In conclusion, a word should be added in regard to a matter suggested by defendant’s counsel in their application for a reargument. We did not hold in the original opinion, as a hard and fast rule, that in every conceivable case a 30-year contract by a village for a supply of water would be unreasonable and void. There might be exceptional cases where, in view of the extraordinary expense of erecting waterworks, the extreme necessity of a village for a supply of water for fire protection, on account of the character of its business and buildings, and the practical impossibility of otherwise procuring a supply of water in any other way, a 30-year contract would be held reasonable. All that we held was that, upon the facts alleged in the complaint, the contract was at least prima facie unreasonable and against public policy. If there existed in this case
For the reasons already given we cannot say that the 30-year provision of the ordinance was legalized by the act of 1893.
Therefore the former opinion is adhered to.