110 F. 901 | U.S. Circuit Court for the Southern District of Iowa | 1900
The plaintiff in its petition alleges that it is the successor and assignee of one Inman, who in 1885 made a contract with the defendant city, the latter acting by ordinance, and Inman by a written acceptance of the ordinance. The petition is in paragraphs, as follows, in substance: In paragraphs 1, 2, and 3 the citizenship of the parties and the amount in controversy, conferring jurisdiction upon this court, are alleged. Paragraph 4 alleges that said ordinance was adopted by defendant May 29, 1885, whereby a contract by Inman accepting the ordinance was made, by virtue of which contract Inman agreed to furnish the city and its citizens with a public and private supply of water for 20 years. Paragraph 5 alleges that it is the successor and assignee of Inman of said contract rights, and makes a copy of said ordinance hnd acceptance a part of the petition. Paragraph 6 alleges that Inman, and plaintiff as his successor, on the - day of -, 1885, in' said city, erected the water plant, and at all times since have supplied the city and its inhabitants with a public and private supply of water. Paragraph 7 alleges that from time to time, by direction of the city, plaintiff has put in additional hydrants, as provided by section 4 of the ordinance, until in the year 1896 plaintiff had placed, and had in operation 138 hydrants, and from said date until the present had maintained the 138 hydrants, and given the city the service of said hydrants, furnished water, etc., and that the city has paid for the said service, excepting as hereinafter alleged. Paragraph 8 alleges that there is now due and owing it from defendant for the quarter ending June 30, 1900, one quarter’s rental of 40 hydrants at the rate of $75 per annum and 98 hydrants at the rate of $60 per annum, making the amount due for the quarter $2,220, and, unless the same is sooner paid, there will become due September 30, 1900, the further sum of $2,220. Paragraph g: October 5, 1900, an amendment to the petition was filed, repeating the foregoing allegations, and alleging the nonpayment, etc., of the $2,-220 falling due on September 30, 1900, as above set forth. Plaintiff demands judgment for $4,440, with interest and costs. Defendant has filed its answer, as follows: Paragraph 1 admits paragraphs 1, 2, 3, 4, 5, and 6 of the petition. Paragraph 2 alleges an absence of information as to the recitals of paragraph 7 of the petition. Paragraph 3 pleads said ordinance b'y referring to it, and alleges that it owes plaintiff no sum for either quarters, for that the ordinance provides the hydrant rental shall he paid quarterly out of a special fund to be levied and collected as other taxes of the city, and the ordinance contract relating to the hydrant rentals is in excess and beyond the proceeds of the five-mill tax .upon taxable prop-ertjr within the fire limits to benefit or protection, and is void and of no effect. Paragraph 4 alleges the city has collected and paid the
At the hearing on the demurrer, paragraph 5 of the answer, by agreement in open court, was to be considered as withdrawn, as were all denials of the answer, and the case considered fully tried, as well as a hearing on the demurrer. Therefore plaintiff is or is not entitled to judgment for the amount sued for, with interest, as the ordinance pleaded by both parties shall be construed.
The ordinance covers many details which need not be set forth. It provides for the erection of the works, charges to be made private consumers, the placing of the mains, penalties for any person interfering with the property, etc., and so on. Sections 4, 5, and 6 of the ordinance are as follows:
“See. 4. The city of Ft. Madison, to supply itself with water for fire protection, hereby agrees to rent from said George B. Inman, his heirs, successors or assigns, fifty-one (51) lire hydrants during the continuance of this franchise, paying therefor an annual rental of seventy-five dollars ($75) each for the first forty (40) hydrants, and the sum of sixty dollars ($60) each per year for all hydrants over forty (40); said hydrant rental to be paid quarterly out of the special tax fund to be levied and collected as other taxes of the city are for this purpose.
“Sec. 5. The city of Ft. Madison may from time to time order additional water mains and pipes to be laid in the streets of said city, and the said George B. Inman, his heirs, successors or assigns, agrees to lay such additional mains when so ordered by the city, provided that no extension so ordered shall be less than for one block, and out of each and every extension so made the city shall rent one additional hydrant for every block laid.
“Sec. 6. The annual rental for all additional hydrants so ordered by the city shall be $60 each, to be collected and paid for in the same manner as the fifty-one (51), and the time when said hydrant rental shall commence shall be at the time said hydrants or additional hydrants shall he erected and ready for use, and the city clerk shall have been notified thereof by the said George B. Inman, his heirs, successors and assigns, or his or their duly authorized agent.”
I set forth the three sections to the end it may be seen I have fully considered all having any bearing on the question. But, in my judgment, section 4 only is material. That section provides the city will rent the hydrants, and that Inman and his assigns will furnish them as ordered by the city. The city agrees to pay a stipulated price per annum, payable quarterly," for the hydrants thus ordered by the city, and supplied and operated by plaintiff. After agreeing to pay the rentals, section 4 of the ordinance concludes as follows: “Said hydrant rental to be paid quarterly out of the
“Such city shall levy each year, and cause to he collected, a special tax , as provided for above, sufficient to pay off such water rents so agreed to he paid to said individual or company constructing said works: Provided, however, that said tax shall not exceed the sum of five mills on the dollar “ for any one year.”
And the clause just quoted gives rise to the only contention: Is the five-mill levy the only revenue to be raised or applied on the contract? Defendant contends that this clause is a limitation upon the ■ power to contract. Its counsel in effect, but not in terms, contend "that plaintiff must build additional mains and put in additional ■ hydrants in such numbers as the city from time to time may demand, and that such parts of the contract would be binding upon plaintiff; ■but that the city need not pay -therefor in excess of the moneys raised by the five-mill levy. Can it be possible that plaintiff must ■ put the hydrants in, and the city pay nothing therefor? Or, having ; put -them in, can plaintiff take such number out as will reduce the - rentals to srich sum that the five-mill levy will pay for the balance ?
Counsel for both parties herein have cited many cases which I do not care to review. Plaintiff’s counsel with much confidence cites* Grand Junction Water Co. v. City of Grand Junction (Colo. App.) 60 Pac. 196, and the case is entitled to much weight. Defendant’s counsel cites several Missouri cases, only one of which to me, seems at all in point. But defendant’s counsel lays much stress upon the case of Boro v. Phillips Co., 4 Dill. 216, Fed. Cas. No. 1,663. Judge Caldwell wrote the opinion. In that case the law required in express terms that the money be paid by the treasurer of the district, and not by the county, and, of course, Judge Caldwell held that the county, as a county, was not liable. Counsel for defendant might have cited the case of Dashner v. Mills Co., 88 Iowa, 401, 55 N. W., 468, making a like holding as decided by Judge Caldwell in 4 Dill. 216, Fed. Cas. No. 1,663. But the decisions of Judge Caldwell and the supreme court of Iowa (88 Iowa, 401, 55 N. W. 468) do not have the slightest application to the case at bar. In those cases there were no contracts by the county. In the case at bar we have a contract by the city. In those cases the districts had a legal being. In
Rinally, defendant’s counsel say that in 1897 the Iowa statute was changed to harmonize with their views. The answer to that is that such change in the law, instead of being an argument for it, is a strong argument against the city. The.old law could not be changed to affect the contract in suit, because of the constitutional provision against impairing the obligation of contracts. What the law for future contracts may be does not now concern us. As to prior contracts the'law had been settled by the supreme court. Why add words when it was well understood? I will not pursue the matter further.
_ I maintain plaintiff should recover herein for three reasons, viz.: (i) The fair construction of the statutes in force in 1835 requires such holding. (2) The said Iowa statutes have been so construed by the Iowa supreme court, and that decision is binding upon this court. (3/ If it is a matter of general law, and not Iowa’s local law and decisions, then the decision in 96 U. S., 24 L. Ed., is binding, and the more so in view of the fact the case has been many times approved by that court. Macon Co. v. Huidekoper, 99 U. S. 592, 25 L. Ed. 333, note; Knox Co. Court v. U. S., 109 U. S. 229, 3 Sup. Ct. 131, 27 L. Ed. 915; Macon Co. v. Huidekoper, 134 U. S. 336, 10 Sup. Ct. 491, 33 L. Ed. 914.
A judgment is accordingly ordered for the plaintiff, and against the defendant city, for the full amount sued for.