State ex rel. Kaiser Water Co. v. City of Philipsburg

23 Mont. 16 | Mont. | 1899

Lead Opinion

MR. JUSTICE HUNT,

after stating the case, delivered the opinion of the court.

1. The City of Philipsburg refuses to pay the bill of the water company for the four additional hydrants it ordered the water company to put in, upon the ground that, under the clause of the contract ordinance which is quoted in the statement of the case, when the city ordered additional hydrants it entered into a yearly lease with the water company to hire such additional hydrants, and that, having an option to take the additional hydrants, it also had the option to stop the hiring at the end of a year, at the election of the city. Eelying upon this construction of the contract, the city seeks to maintain the position that it elected to terminate its lease of the four additional hydrants it had ordered, and to discontinue the use of them, at the end of the second year’s lease, after paying in full for the same. But in our opinion the agreement cannot receive .that construction. Following the familiar principle that courts will not make an agreement for persons, but will get at what their agreement is, we will look to the written words voluntarily employed by these parties, and to the effect of their language. We will also look at the whole of the ordinance constituting the contract, giving to every clause, and, if needs be, to every word thereof, a meaning, — all with a purpose to so construe the contract as to make effectual the objects and intentions of the parties. ■

It is perfectly plain that for the fifteen hydrants first mentioned in the contract the city was to pay for ten years from the time in the year 1893 that the water system was completed and the fifteen hydrants were ready for use. As to this there is no room for argument. The then present needs of the city, and the apparent certain future needs thereof, justified the agreement whereby fifteen hydrants should be taken, and kept supplied and ready for use for 10 years, at an annual rental of §112.50 per annum per hydrant. Doubtless a possible decrease of the city’s population, followed by requirements for less fire protection, was not considered of sufficient likelihood for the city to reserve to itself in the contract a right to discontinue the use of less than fifteen hydrants for the fixed period of ten years. But, whatever may have moved the parties in respect to the fifteen hydrants, they made express provision for increased needs, if they should occur, by that clause of the contract which gave to the city the' right at any time during the period of ten years for which the fifteen hydrants were taken to take any additional number of hydrants at an annual rental of §100 each. Acting upon this clause of the agreement, and presumably to meet the necessities of the municipality, the city took the four additional hydrants, requiring the water company to put them in, which it did at an expense of §1,000. As' we interpret the agreement, the city had no right to order and take these additional hydrants upon any other basis than that upon which it took the first fifteen hydrants, except in so far as it was expressly otherwise provided for in the ordinance itself. The stipulated annual rental of $100 for each additional hydrant, which was $12.50 less than for the first fifteen, is a circumstance tending to show that the meaning of the parties 'was that additional hydrants, if taken, would be kept in' use for a substantial period of time, which we construe to mean for as many years after the taking as there might be left to run under the ten-year period fixed for taking the fifteen hydrants. It is reasonable to believe that some period of time was in the minds of the contracting parties, during which the city would be obliged to pay for the additional hydrants; but we find nothing in the language used to warrant the construction that the period contemplated was one year only, or the lease a yearly one, subject to termination at the end of that time.

As we construe the contract, too, the obligation rested upon the water company to keep these additional hydrants supplied, and always in working order, charged with water in quantity and pressure according to the contract with the town made by the water company’s predecessors, just as fully as it developed upon it to keep the fifteen hydrants charged and ready. In other words, we are satisfied that the obligations of the contract imposed upon the water company in respect to the fifteen hydrants for ten years rested upon the company equally, as relates to all additional hydrants for the years they had to be supplied, while, on the other hand, the correlative duty lay upon the city to pay for the additional hydrants in the same manner and from the time they were taken until the lapse of the same period provided for in relation to the fifteen hydrants. This construction insures for the city a water supply to meet its growth, and avoids the very unreasonable view that either party can refuse to perform or revoke without just cause.

As we regard it, the clause pertaining to additional hydrants, and stipulating for an annual rental therefor, was inserted, not to abbreviate the period of the contract’s duration, which is ten years from the date that the fifteen hydrants were ready for use, and is for as many years’ use of the additional hydrants as there may be between the date of their taking and the time that the ten years will expire since the taking of the fifteen hydrants, but was to secure to the city’ an adequate water supply to meet its possible future necessities, and to make certain that such supply would be .furnished at a reasonable and fixed price per hydrant. The particular obligations resting upon the parties in case additional hydrants should be taken, though not set forth, in express terms, must be ascertained by reference to that part of the provision of the contract governing the fifteen hydrants. We have * therefore read all the provisions together, and concluded, that the ten-year clause and those parts of the provision which require the supply to be furnished under certain pressure, and to be kept in working order, cannot be disassociated from the clause authorizing additional hydrants, but is to be construed with it.

2. The next contention of the city is that the water company having a plain, speedy, and adequate remedy at law, under Section 4703 of the Political Code, mandamus will not lie. Section 4703 provides, in part, that every city organized under Title III of the Political Code, relating to cities and towns, may sue and be sued in all courts and places, and in all proceedings whatever, and has such other powers as are incident to municipal corporations, not inconsistent with the laws of the United States or of the state. , The rule established by Section 4703 was in force, however, at the time of the decision of this Court in State ex rel. Great Falls Water Works v. Mayor of Great Falls et al., 19 Mont., 518; 49 Pac. 15. In that case the court was obliged to pass directly upon the question whether or not mandamus will lie to compel a, city to perform a duty imposed upon it by law, — to audit and allow proper bills it owes under the terms of a contract for a water supply, and to issue its warrant for the payment of the bills. It was held mandamus was a proper remedy. We cannot distinguish this case from that. It is true, as appears by the record, no demurrer was interposed in the Great Falls case; but the question of the sufficiency of the petition was raised by an objection to the introduction of any evidence on the ground that no cause of action for a writ of mandamus was pleaded. We will not depart from the rule there announced, in this case, where the facts are so very similar. This disposes of the only questions relied on in argument and brief.

Judgment affirmed. Remittitur forthwith.

Affirmed.

---

Concurrence Opinion

Mr. Justice Pigott :

I concur with Mr. Justice Hunt in his interpretation of the contract, and in the conclusion stated in the first paragraph of the foregoing opinion.

In holding that mandamus is a proper remedy, the second paragraph of the opinion follows State ex rel. Great Falls Water Works v. Mayor of Great Falls et al., 19 Mont. 518, 49 Pac. 15. I doubt the correctness of that decision in the respect mentioned, but ‘ '•stare decisis et non quieta movere. ’ ’

Me. Chief Justice Beantly, being disqualified, took no part in this decision.