74 P. 969 | Idaho | 1903
This action was brought by the respondent Jack against the village of Grangeville to recover the sum of $249.99, claimed to be due him for fire hydrants and the use of water for fire purposes, flushing sewers, sprinkling streets and other municipal purposes for the months of June, July and August, 1902. The pleadings consist of the complaint, answer, cross-complaint and answer thereto. Upon the issues thus made the cause was tried before the court without a jury, and resulted in a judgment in favor of the respondent for said sum. The following facts appear from the record:
Prior to the seventh day of September, 1898, the villagé of Grangeville was without any system of waterworks and had no fire protection and no supply of pure, ■ fresh water for its inhabitants. Shortly prior to that date an epidemic of typhomalarial fever raged in that village and from one-fourth to one-third of the entire population of the village was infected with that disease, which, it is claimed, was mostly due to the impure, unwholesome and polluted condition of its water supply. It also appears that not long prior to said date quite a
“ORDINANCE No. 42.
.“An Ordinance Authorizing H. Orchard and W. R. Graham to Construct and Operate a System of Water Works in the Village of Grangeville, and for that Purpose to Occupy and Use so Much of the Streets, Lanes and Alleys thereof as may be Necessary for the Same, and to Supply Water to said Village and Its Inhabitants, and to Collect Rates Therefor.
“Be it ordained by the chairman and board of trustees of the village of Grangeville:
“Section 1. That H. Orchard and W. R. Graham, their successors and assigns are hereby authorized to construct, maintain and operate a system of water works in the village of Grangeville for the period of thirty years, for the purpose of supplying water, and to charge and collect rates therefor, provided that such rates are reasonable, equitable, without distinction of person, and provided further such rates shall not exceed two dollars per month for domestic use, for families of from one to six, and not to exceed twenty-five cents per. month for each additional number of the family in addition to six, and for such other private use such rate as shall be reasonable and just.
“Section 2. Water furnished shall be pure and wholesome, and kept fresh and free from contamination.
“Section 3. That said H. Orchard and W. R. Graham, their successors and assigns, are hereby authorized to use so much only of the streets, lanes and alleys of the village as may be necessary and reasonable for the purpose mentioned in section one of this ordinance.
“Section 4. In the construction of said system of water works, the said parties shall use material required by a good and substantial system,- shall place all pipes below the line of ordinary frosts, and when ground is once broken, work shall be prosecuted • to completion without interruption, delay or unnecessary or prolonged obstruction to travel or business, and no street -or crossing shall be wholly closed or rendered impassable
“Section 5. The said parties, their successors and assigns are hereby required to commence the construction of said water works within two months after the passage of this ordinance, and to carry the same to completion within one year after the passage of this ordinance.
“Section 6. All rights not herein granted to said H. Orchard and W. E. Graham, their successors and assigns are reserved to the village, and nothing herein contained shall be construed as an exclusive permit and shall not limit the power of the village to grant like privileges to other parties, firms or corporations, nor to impair the ?’ights and remedies of the village in the courts of law or equity.
“Section 7. As a further condition and precedent, and consideration for the granting of these rights and privileges, the village of Grangeville or its successors in municipal government for the territory embraced therein, shall have the option to' purchase the completed water system herein provided for and all its appurtenances at the expiration' of ten years from the passage of this ordinance, or at any time thereafter upon the following terms, to wit: The amount of the net earnings of the system for the year next preceding the offer to purchase by the said village or its successors shall be multiplied by ten and the product arriving therefrom shall be and is hereby agreed upon as the purchase price, which said H. Orchard and W. E. Graham, or their successors in interest or assigns shall accept.
“Section 8. The said parties, their successors in interest or assigns, in accepting this ordinance, and in constructing and operating the said system thereunder, expressly agree to the foregoing section, and further expressly agree that should they thereafter enter into a contract with said village for the supply of water for any municipal purpose, that the same shall be terminated, upon the purchase of said system under the terms of said section.
“Section 10. This ordinance shall be in force and effect from arid after its passage, approval and publication.
“Passed and approved September the 7th, 1898.
“HENRY WAX,
“Chairman Board of Trustees.
“Attest: W. E. BUNNELL,
“Village Clerk.”
Thereafter and on the same date said board of trustees passed and adopted Ordinance No. 43, which is as follows:
“ORDINANCE No, 43.
“An Ordinance to Secure a Supply of Water for the Village of Grangeville.
“Be it ordained by the chairman and board of 'trustees of the village of Grangeville:
“Section 1. That the village of Grangeville' by its ordinance, hereby contracts and agrees with H. Orchard and W. R. Graham, 'their successors and assigns, for a supply of water for the village of Grangeville, for the period of thirty years, in the manner and upon the terms and conditions provided and set forth in this ordinance and upon the acceptance of the terms of this contract by said parties in writing, the same shall become a valid and binding contract between' the parties.
“Section 2. In the construction and operation of water works the said parties shall conform in all matters and things to the provisions of Ordinance No. 42 of the village of Grange-ville, approved September 7th, 1898, granting to said parties the right to occupy and use the streets of the village and to construct and operate water works therein, and the provisions of said ordinance shall become and be correlative parts of this contract.
“Section 3. The contract authorized by this ordinance is. among other things upon the consideration that the said parties shall in addition to its direct service provide reservoir service of sufficient altitude to afford pressure through its pipes
“Section 4. The village shall furnish and place at such places as they may see fit and connect with such water works* such fire hydrants as they may deem necessary at its own costs and expense, and shall pay to the said parties their successors or assigns for the use of said water hereinbefore stated the sum of eighty-three and thirty-three one-hundredths dollars per month for not exceeding twenty hydrants, and the sum of five dollars per month for each additional hydrant in excess of twenty, said sums to be paid monthly in warrants of said village, said parties, their successors or assigns shall extend mains of at least four inches in diameter of said system of water works ■to all portions of said village where fire protection is necessary, and six inch mains from the reservoir to and along Main Street.
“Section 5. The village of Grangeville shall have unlimited use in case of fire, and through its officers or employees shall have all reasonable and necessary control of the water mains, reservoirs and works for extinguishment of fires, for the flushing of sewers under the direction of such officers as the trustees of the said village shall designate, not oftener than once a week, and for the purpose of drilling fire companies, and for such other usual municipal purposes, and shall use such water as may be necessary therefor, provided said village shall be responsible to said parties for any damage occurring through the carelessness or negligence of its officers.
“Section 6. This contract shall be voidable by the village of Grangeville so far as it requires the payment of money upon the judgment of any court of competent jurisdiction, whenever there shall be a substantial failure on the part of said parties, their successors or assigns to keep or perform any contract or agreement on its part herein specified, or in said contract
“Section 7. This contract shall become and be in force as to the payment of money from and after the date that the water service shall begin, provided that the village shall pay said parties fifty per cent of the rate hereinbefore provided from the time that the service shall be sufficiently extended to afford fire protection to the entire business portion of the town, on condition, however, that said parties are proceeding to extend said system with reasonable diligence to the full capacity hereinbefore provided.
“Section 8. The village clerk is hereby authorized and directed to make and enter into a contract in writing for and on behalf of the village of Grangeville with said H. Orchard and W. E. Graham, their successors or assigns, in conformity with this ordinance, and the execution of such by the said parties shall be and constitute an acceptance of this ordinance and contract, and such contract as executed by both parties shall be recorded in full by the clerk in the record of ordinances.
“Section 9. This ordinance shall be in force and effect from and after its passage and publication.
“Passed and approved September 7th, 1898.
“HENEY WAX,
“Chairman Board of Trustees.
“Attest: W. E. BUNNELL,
“Village Clerk.”
On September 8, 1898, the village clerk acting under the direction and authority of said ordinance No. 43, entered into and executed a contract with Orchard & Graham, which contract is as follows:
“A CONTEACT TO SBCUEE A WATEE SUPPLY FOE THE VILLAGE OF GEANGEVILLE.
“The village of Grangeville hereby contracts and agrees with H. Orchard and W. E. Graham, their successors and assigns, for a supply of water for the village of Grangeville for a period
“In the construction and operation of water works the said parties shall conform in all matters and things to the provisions of ordinance No. 42 of the village' of Grangeville, approved September 7, 1898, granting to said parties the right to use and occupy the streets of,,the village and to construct and operate water works therein, and the provisions of said ordinance shall become and be correlative parts of this contract.
“This contract is among other things upon the consideration that said parties shall in addition to its direct service provide reservoir service of sufficient altitude to afford pressure through its pipes under ordinary conditions of service of at least sixty pounds per square inch at Main Street in said village, and of sufficient capacity to maintain two seven-eighths inch streams or of three three-fourths inch streams projecting water to an altitude of at least forty feet continuously for at' least three hours, and shall maintain a system of sufficient capacity to supply a village of at least two thousand inhabitants, and shall extend the same if necessary in advance of all future demands of said service.
“The village shall furnish and place at such place as they may see fit and connect with such water works such fire hydrants as they may deem necessary, at its own cost and expense, and shall pay to the said parties, their successors or assigns, for the use of said water as hereinbefore stated, the sum of eighty-three and thirty-three one-hundredths dollars per month for not exceeding twenty hydrants, and the sum of five dollars for each additional hydrant in excess of twenty, said sums to be paid monthly in warrants of said village, said parties, their successors or assigns, shall extend mains of at least four inches in diameter of said system of water works to all portions of said village where fire protection is necessary, and six inch mains from the reservoir to and along Main Street.
“The village of Grangeville shall have unlimited use of hydrants in case of fire, and through its officers and employees
• “This contract shall be voidable by the village of Grangeville so far as it requires the payment of money, upon the judgment of any court of competent jurisdiction, wherever there shall .be substantial failure upon the part of said parties, their successors or assigns to keep or perform any contract or agreement on its part herein specified, or in said contract contained, but accident or reasonable delay shall not be deemed such failure, 'the failure of the said parties to comply with the provisions of .said ordinance No. 42 aforesaid relating to the time within ■which -it shall have its water works in operation shall avoid and .■terminate this contract.
.. “This contract shall become and be in force as to the payment of money from and after the date that the water service .■shall begin, provided that said village shall pay said parties fifty per cent of the rate hereinbefore provided from the time that the .service shall be sufficiently extended to afford fire projection to the entire business portion of the town, on condition, ihowever, that said parties are proceeding to extend said system ■with reasonable diligence to the full capacity hereinbefore provided.
“Dated this 8th day of September, A. D. 1898.
“W. E. BUNNELD,
“Tillage Clerk.
“H. ORCHARD and
“W. R. GRAHAM,
“By H. ORCHARD.”
Said Orchard & Graham proceeded under and in accordance with the terms of said contract and ordinances and constructed ,a water system in full compliance with the terms thereof at
During said time the appellant Jack "became the assignee of the said Orchard & Graham, and continued to furnish the village water upon the conditions and terms of said contract and ordinance. It also appears from the record that the village of Grangeville was a municipal corporation incorporated by petition of the inhabitants and order of the board of county commissioners, dated October 15, 1899. But it is a disputed question whether said village was incorporated under the provisions of the Revised Statutes of 1887 or under an act approved March 4, 1893. But the trial court found as a fact that it was incorporated under the provisions of the Revised Statutes.
The respondent and his predecessors have continued to supply water to the village ever since the completion of said water system and supplied water for the said months of June, July and August, 1902. In the month of April, 1902, new officers were "elected for said village, and the new board of trustees refused to pay the respondent under said contract, or at all, for the use of water for said months, and insisted that the village was entitled to such water free of charge under the provisions of sections 2710 to 2713, inclusive, of the Revised Statutes of 1887. The law of March 4, 1893, was attacked as unconstitutional, in that it was not passed as provided by section 15 of article 3 of the constitution. However, in our view of the case it is not necessary for us to pass upon that question.
Counsel for appellants assign more than sixty alleged errors, but the main question is, Do the provisions of sections 2710, 2711 and 2712 of the Revised Statutes apply to said contract
“Sec. 2710. No corporation formed to supply any city or town with water must do so unless previously authorized by an ordinance of the authorities thereof, or unless it is done in conformity with a contract entered into between the city or town and the corporation. Contracts so made are valid and binding in law, but do not take from the city or town the right to regulate the rates for water, nor must any exclusive right be granted. No contract or grant must be made for a term exceeding fifty years.
“Sec. 2711. All corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof for family uses, so long as the supply permits, at reasonable rates and without distinction of person, upon proper demand therefor; and must furnish water to the extent of their means in case of fire or other great necessity, free of charge. The rates to be charged for water must be determined by commissioners to be selected as follows: Two by the city or town authorities, or when there are no city or town authorities, by the board of commissioners of the county, and two by the water company; and in case a majority cannot agree to the valuation, the four commissioners must choose a fifth commissioner; if they cannot agree upon a fifth, then the probate judge of the county must appoint such fifth person. The decision of the majority of the commissioners must determine the rates to be charged for water for one year, and until new rates are established. The board of county commissioners or the proper city or town authorities may prescribe proper rules relating to the delivery of water, not inconsistent with the laws of the territory. .
“See. 2712. Any corporation created under the provisions of this title for the purposes named in this chapter, subject to the reasonable direction of the board of county commissioners, or city or town authorities, as to the mode and manner of using such right of way, may use so much of the streets, ways and alleys in any town, city or county, or any public road therein, as may be necessary for laying pipes for conducting
If it should be held that the provisions of said sections apply to said contract, then it would make no difference as to. any of the other contentions made by appellant or respondent. For if the respondent is bound by said provisions to furnish the village free water, then he cannot recover in this action on any theory of the case. It is admitted that the respondent’s system of waterworks has never been owned by a corporation, but has at all times been the property of private individuals. It was constructed by Orchard & Graham and operated for a time by them, and was thereafter sold and transferred to the respondent. If the provisions of said sections of the statute apply only to corporations as contended by counsel for respondent, then the village is liable to pay at least reasonable compensation to the respondent for the water used by it.
Title 4 of the Civil Code of the Revised Statutes of 1887 is in regard to corporations. Chapter 5 of said title, which chapter contains the sections above cited, is entitled “Water and Canal Corporations.” Those facts of themselves would clearly indicate that the provisions and law included in said title and chapter were not intended to apply to private persons or individuals. Said section 2711 contains the provision in regard to free water for cities and towns. It provides that “all corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof, etc., and must furnish water to the extent of their means in case of fire and other great necessity, free of charge.”- Can it be said that said provisions were intended to include individuals or natural persons when the law-making power only used the word “corporations”? If we apply to this statute the familiar rule of construction, the one universally adopted, that the naming of one class excludes all others — expressio unius est exclnsio alterius — said statute does not include individuals or natural persons. Said sections 2710 and 2711 were adopted literally from the statutes of California, which California statutes were enacted in May, 1852.
The circuit court of the United States for the southern district of California, in the case of Santa Ana Water Co. v.
Questions were involved in that ease that are not in the case at bar, and we cite and approve the conclusion reached there on the one proposition alone — that is, that said statutes have no application to individuals. The effect of the assignment of said contract to a water corporation is there discussed and decided. That question is not involved in this case, and we are not called upon to pass upon it. In the ease at bar the contract was made by the village with private individuals and their successor in interest is a private individual. (See, also, Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720.)
The question as to whether the water rates may be regulated as provided by the laws of this state is not involved in this ease. The trustees do not complain of the contract rate, nor have they fixed any rate. Their claim is that the village is entitled to free water under the provisions of said sections of our statute,
TJnder the provisions of subdivision 12 of section 2230 of the Bevised Statutes, the board of trustees have power to provide cisterns, hydrants or waterworks, or to purchase water for fire purposes; but it is contended by counsel for appellant that said section, was repealed by an act concerning city and village organizations, approved March 4, 1893 (Sess. Laws 1893, p. 97).
■ The twelfth subdivision of section 2230 is as follows: “To. prevent apd extinguish fires,-and for that purpose to have power, to purchase fire-engines and to erect engine-houses, to purchase, hose-carts, hose, hooks, ladders, trucks, buckets, ropes and all othen-apparatus, to, maintain a fire department, to provide eis
The only provisions found in said act of March 4, 1893, concerning water, public wells, cisterns, reservoirs, etc., is found in the fifteenth subdivision of section 69 of said act and is as follows: “To establish, alter and change the channels of watercourses, and to wall them and cover them over; to establish, make and regulate public wells, cisterns, windmills, aqueducts and reservoirs of water, and to provide for the filling of the same.”
The last-mentioned act is amendatory and supplemental to said title 13 of the Revised Statutes and repeals all acts or parts of acts in conflict with it. Said subdivision 12 of section 2230 is not in conflict with any of the provisions of the act of March 4, 1893. That being true, the question is presented whether said ordinance and contract are in conflict with said provisions of the Law of 1887 and of 1893.
After giving that question careful consideration, we have concluded that they are not in conflict with the law as it now stands, and that the board of trustees had full power and authority to enter into said contract as to the rate to be charged the village for water. Section 6, article 15 of our state constitution is as follows: “The legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.”
Under the provisions of said section it is the duty of the legislature to provide by law the method or means by which rates or compensation for the use of water supplied to any city or town — which it is conceded the legislature has failed to do— unless it has been done by the provisions of said section 2711. That section applies to water and canal corporations and not to the case at bar. Therefore, until the legislature provides a method for fixing rates, the contract between the parties will govern.
We have- not overlooked the act providing for the issue and sale of municipal 'bonds, approved February 17, 1893. (See
In Andrews v. National Foundry & Pipe Co., 61 Fed. 787, 10 C. C. A. 60, the court said: “Besides the power to provide for the health of the inhabitants, the city of Oconto had the express power, apparently not brought to the attention of the court below, fto provide for the erection of waterworks for the supply of water to the inhabitants of the city.’ We do not agree with the suggestion of the counsel that by this provision the city had no right to contract for a supply of water, and was authorized only to construct and operate a plant of its own. The authority extended to any reasonable method; and it follows that before the Oconto Water Company was incorporated, the city of Oconto, by its own charter, had power from the state to grant franchises like those in question to any person or body capable of receiving them/’
And in case of City of Newport v. Newport Light Company, 84 Ky. 174, the court said: “The object sought to be accomplished must be considered, and being invested with the right to light its streets with gas, or to construct and maintain gasworks for that purpose, its right to contract under such power is unquestioned.....It is. the duty of the municipality to light its public streets and to furnish its inhabitants with the means of obtaining gas at their own expense, and having the power by legislative grant to erect and maintain gasworks for that purpose, it necessarily follows that it had the implied power to contract with others to furnish it in like manner;
Where a city or village is given power to establish a water system of its own, it would seem that it has power to contract with others for the establishment of a water system or to buy water for fire and other village necessities. (See City of Springfield v. Fullmer, 7 Utah, 450, 27 Pac. 577.)
In case of the Intendant and Town Council of Livingston v. Pippin, 31 Ala. 542, the court said: “The intendant and council-of the town of Livingston have the ordinary public powers which are conferred on municipal corporations. The express grants of power are copied in the opening of this opinion.' (The ordinary police, health and general welfare provisions.) Nothing is more important to a sanitary and police regulation than an abundant supply of water. Its uses are too well known to require notice here. We hold that the corporate authorities had the power, as such, to procure water on the public square of the town of Livingston. If it be contended that the intendant and council should not have incurred the expense of an artesian well, but should have contented themselves with the cheaper modes of accomplishing the object, we answer that this question cannot be raised in this' form. The corporate authorities having the power to procure the supply of water, were themselves the judges of the mode and manner best calculated to accomplish the object. (Lawless v. Reese, 4 Bibb, 309.)” See, also, Crawfordsville v. Braden, 130 Ind. 149, 30 Am. St. Rep. 214, 28 N. E. 852, 14 L. R. A. 268; Grant v. City of Davenport, 36 Iowa, 402; Warren v. City of Chicago, 118 Ill. 329, 11 N. E. 218; Harlem Gas & Light Co. v. New York, 33 N. Y. 309.
Tiedeman on Municipal Corporations, section 175, says: “Under the authority commonly conferred by charter to make such ordinances and by-laws as shall be necessary for the security and welfare of the inhabitants and for preserving the health, order and good government, a city may contract for a water supply. Sometimes such contracts are authorized by special laws, or by special provisions of the charter or by the general authority to make contracts, which are deemed neces
It is held by many of the above-cited authorities that where the express power is granted to construct a system of waterworks or light plant, the municipality may accomplish that end by contracting with others to supply the municipality and inhabitants thereof with water or light. While such powers may be abused and improvident contracts made, anyone interested may resort to the courts and have illegal and extortionate contracts set aside.
It is clear to us from the above-cited provisions of our statute that the contract under consideration comes clearly within the powers of the village authorities. The length that said contract may continue is for thirty years and it is contended that it is invalid for that reason.
It is provided in section 2710, Revised Statutes, that no contract must be made with a corporation for supplying water for a greater period than fifty years. The legislature evidently did not consider fifty years was too long a period for such contracts to continue, and we think the contract under consideration was not void because of the provision for its continuance for thirty years. Under the ordinances authorizing said contract it is provided that the village may purchase said waterworks at the expiration of ten years; and even without that provision a purchase thereof might be made by the village.
While courts when called upon will scrutinize contracts of this kind with care, and having so examined the contract under consideration, conclude that it is valid under the law applicable thereto. Under the well-settled rule that where the constitutionality of a law is questioned the court will not pass upon it unless it is necessary to a decision of the case, we are not required to pass upon the constitutional enactment of law approved March 4, 1893, for the reason that the ordinances and contract in controversy are valid whether said act be held constitutional or not.
