5 Indian Terr. 497 | Ct. App. Ind. Terr. | 1904
Appellants filed demurrer that the appel-^ lees did not have legal capacity to sue, and to each paragraph separately of their complaint, on the ground that neither of them states facts sufficient to constitute a cause of action; and the overruling said demurrer, together with the action of the court in holding that appellants’ franchise was void, and in granting the injunction prayed for, are the specifications of error assigned by appellants. Appellants have discussed in their brief the questions involved under five different heads, and appellees have 'replied in their brief under nine different heads.
The first cause of action alleged by plaintiffs below (appellees here) is as follows: That plaintiffs are ■ residents, qualified electors, and taxpayers of the incorporated town of Tahlequah, Ind. Ter., one of the appellants and defendants below. That on the 27th day of October, 1903, the council of said town at a regular meeting adopted an ordinance known as “Ordinance No. 64,” entitled “To provide for supplying with water the streets, lanes, alleys and public places in the incorporated town of Tahlequah, Indian Territory, and for the contracting with the Crystal Springs Water Company of Tahlequah, Indian Territory, a corporation organized under the laws of the United States in force in the Indian Territory, its successors and assigns, for the purpose of supplying with water such streets, lanes, alleys and public places.” That section 1 of said ordinance -provides that said town contracts with the Crystal Springs Water Company, of Tahlequah, Ind. Ter., a corporation organized under the laws of the United States, one of the appellants and defendants below, for supplying with water the streets, lanes, alleys, and public places in said town. Section 2 of said ordinance provides that said contract shall be in force for the term of 60 years, and said water company shall have the exclusive right to
Appellants, in support of their contention, cite Mansfi Dig. § 755 (Ind. Ter. St. 1899, § 525), which is one of the sections of chapter 29, on the subject of “Municipal Corporations,” adopted and put in force in this jurisdiction by the act of Congress of May 2, 1890, c. 182, 26 Stat. 94, and is as follows: “For the purpose of providing water, gas or street railroads, the
The other causes of action allege divers and sundry provisions of said ordinance in detail, which appellees claim state 'facts authorizing the court not only to take jurisdiction, but also state facts sufficient to sustain their cause of action. Appellants insist that the discretion of the city council in passing the ordinance and the reasonableness of the ordinance will not be looked into by the court in the absence of fraud or gross wrong, and appellees insist: “The reasonableness of an ordinance is open to judicial inquiry when it is passed in the exercise of general authority to legislate on the subject without prescribing the mode of its exercise.” Appellants cite John W. Smith on Law of Municipal Corporations, § 525: “Reasonableness of the Ordinance. It is a well-settled principle that a municipal bylaw or ordinance must be reasonable. If it be not reasonable, the courts will decline to enforce it, and it will be declared void as matter of law. But, as was said by Niblack, J., in an able opinion delivered in an Indiana ease: ‘An ordinance cannot be held to be unreasonable which is expressly authorized by the Legislature'. The. power of a court to declare an ordinance unreasonable, and therefore void, is practically restricted to cases in which the Legislature has enacted nothing on the subject-matter of the ordinance, and consequently to cases in which the ordinance was passed under the supposed incidental power of the corporation merely.’ So, when the Legislature expressly authorizes the municipality to pass any certain ordinance, that ordinance will be upheld, regardless of the opinion of the court as to its reasonableness or unreasonableness.” In Hot Springs vs Curry, 64 Ark. 154, 155, 41 S. W. 56, the court said: “If an express power is given to a corporation to enact ordinances of a certain kind, the Legislature thereby trust to the discretion of the
Appellees object on the ground that springs and parks dedicated to public use cannot be granted. It is self-evident that municipal corporations cannot grant anything they do not own, and authorities to establish the proposition are quite unnecessary.
Appellees allege in their complaint that the act of Congress approved May 19, 1902, c. 816, 32 Stat. 200, repeals the laws of Arkansas on the subject of constructing waterworks. There is no express repeal, and it is not in conflict with the laws of Arkansas already in force. The act simply authorizes the towns to raise money by issuing bonds if they desire to construct their own waterworks; but appellees do not discuss that proposition in their brief, and therefore have presumably abandoned that contention.
We are of the opinion, from an examination of the authorities, that the court below erred in overruling the demurrer of appellants and in holding the franchise of appellants void, and in granting the injunction asked for by appellees. We therefore reverse the ruling of the court below, and remand the cause.