*1 CITY. v. FREEPORT WATER COMPANY 587 Syllabus. in the court all the in tbe Dr. Deane below,1 destroying intention not revoke a nor all the in- will, will

world without must be the in the world without there tention destroying; ” two.’ of to admit evidence "We cannot overcome the feeling and that its ad- this nature is the degree dangerous, highest of the tend the mission would impair efficacy very strongly and revocation of wills. statutes the relating proof Col- Court District Appeals judgment of of of umbia is reversed remanded to that court with cause reverse Court directions to Supreme judgment of cause to that cov/rt with in- to remand the District new grant a trial. structions White and Me. Justice Hablan, Justice Me. Justice

Me. the first and second with McKenna agreed opinion only upon from the others. discussed, dissented grounds concurred in the result. Me. Justice Bbown FREEPORT WATER COMPANY FREEPORT CITY. TO THE SUPEEME

EEEOE COUET OF THE STATE OF ILLINOIS. 348. Submitted October 31,1900. No. March 25, 1901. Decided company organized general was under statutes Tbe water Illinois, city. June, 1882, government also the was In city company city gave right the water exclusive thirty years, reserving right purchasing erected works exercised, purpose, rights and if this were not for that company for a further made were to be extended term. Provision was hydrants company for which fixed rentals for the erection part given rights in a charged, was of them. were to payment provisions made for the of water rates con- Further passed by city reducing the rentals In an ordinance was sumers. 1896 hydrants and rates to consumers to take effect from the date of made, grant a statute passage. At the time when Illinois, authorizing villages passed in in force in cities and 18*72 TERM,

Statement of the Case. companies incorporated contract with of water for a use, thirty years.. Held, exceeding not- so could, force straining, the statute in 1882 without distributive; *2 as the council authorized to was construed any person with or to construct and maintain water- might by period at such as fixed works be ordinance for a and ” exceeding thirty years; by the fixed might words ordinance by construed to mean once during ordinance for all to whole endure the period thirty years, by of ordinance time might from time as necessary; adopted deemed and that of the two constructions that must be .public, which is most favorable to the not that one which would tie so the adjusted justice hands of the council the rates could not be parties require particular might both at a time. was an action of the assumpsit in brought plaintiff .This error the defendant error the circuit court of against State for of the of Illinois, de- Stephenson County, water price in error to livered defendant error between Jan- plaintiff and uary 1, 1896, July 1, of based a

The cause action was from arising defendant passed by an'.ordinance empowering plaintiff construct certain waterworks of and the city Freeport from the of certain fire renting city plaintiff hydrants. To a the defencesof ordinance the rental subsequent reducing of it was .the latter im- hydrants, replied ordinance of the first ordinance as a and paired obligation the Constitution of the therefore violated United States.

The’case was demurrer to the of the presented -pleas demurrer was overruled defendant. The the circuit court, and the to stand its demurrer, plaintiff electing judgment was for entered for the defendant costs. On to the Su- appeal affirmed, Court and preme Illinois, judgment to that action this writ of error was directed.

The facts are as follows: .presented by pleadings The. and under corporation organized plaintiff existing the State, laws of and the defendant is a general municipal under:the act of entitled general State, corporation organized of An act to and cities incorporation provide villages,” force and 10, 1872, 1,1872, approved July the acts April thereof. amendatory on the 6th of defendant enacted an June, 1882,

That ordinance v. FREEPORT COMPANY CITY. WATER Case. of the

Statement his to Nathan the ex- Shelton assigns giving granting term of thirty clusive privilege, years right and its cit- city Freeport the 1st of July, suitable domestic manufacturing pur- izens works at reserved purchasing right poses. city If such should not be exercised the end thirty years. were to be extended plaintiff rights privileges were the There usual further twenty-five years. the character of the streets, of the works for the use

provisions water, made provision and appliances, quality the extension growth city system its needs require. might

Section 1 ordinance was as follows: “The said or his Shelton shall erect double- Nathan assigns nozzle fire all mains laid ordered said hydrants upon council said at the rate less than ten to each mile *3 and shall erect of said said fire and mains, whenever hydrants said council shall direct. wherever And said shall city city pay or to said Nathan Shelton his an annual rental for as assigns the first one hundred of said the sum of hydrants one hundred all dollars for said each, over hydrants one hundred and toup one hundred and an annual rental of fifty each, dollars eighty and for all of said one hundred and hydrants.over an an- fifty rental of nual dollars which fifty .each, said shall rentals on the fifteenth semi-annually of payable and days January in each and the of each July year, shall commence pay hydrant when each for hydrant actually use and ready offi- city notified and thereof, shall continue cially the full term during in this ordinance, unless said specified shall sooner become city of said owner waterworks as hereinbefore in which provided, said rental shall event cease. The of shall pay any hydrant whenever cease is out of any or hydrant unfit use or repair .for a, of stream as for incapable throwing this ordinance.” provided The was use city given water free of from charge on streets curbed and for hydrants and guttered flushing the’ and from washing gutters, hydrant, any upon notice, giving for and all any also flushing sewers; water free of for charge of fire the use and department hall, public city TERM, 1900. 590 Case. Statement for four drinking and churches schools, offices, public erect the same. should if the fountains city fixed for whieh to consumers purposes Maximum “ rents and it enumerated, provided were especially be fixed meter named will’ not herein other purposes the consumer between measurement,, agreed rates.” following exceeding company, rates were specified. The as follows:

Section was “ as a between shall become This ordinance binding or and Nathan Shelton his Illinois, assigns, Freeport, of a with the clerk written acceptance the filing or his the same Nathan 'Shelton thereof by assigns, provided and' within be done publica- shall thirty days passage this ordinance when so of this ordinance, accepted tion without not be amended altered, shall changed way of both thereto and inter- and consent parties the concurrence or their successors therein, assigns.” ested filed a written Shelton 27, 1882, On June acceptance of the ordinance. On Conditions he 8,1882, August terms which defendant all his had no- plaintiff, rights assigned all has Plaintiff Shelton complied things required tice. constructed section has it, hydrants required by or of were in which on defendant, Janu- operation ordered by and as all rentals defendant became due paid 1, 1896, ary due rentals there was 1, 1896, subsequent January the sum $5840. the 15th July, date, up that, in substance of the defendant alleged pleas under the laws of general organized a municipal corporation cities and villages, State incorporation *4 State of statutes of the waterworks relating in pursuance 6,1882. ordinance June .the passed in No. the water rates fixed It was plea alleged and then unreasonable unjust, oppressive

Such.ordinance of said and so and citizens remained cityj to the and taxpayers said, and unreasonable be unjust, oppressive continued and until the thereof action of subsequent enactment up in relation . had thereto. . .” of said council This city FREEPORT CITY. WATER COMPANY , Statement of the Case. in the other and it was substantially repeated pleas,

charge that the new rates were and or- reasonable. The alleged just set 11, 1896, dinance of out full. The February follow- all that is be : ing necessary quoted That the Water Freeport Company, corporation, 1.

“Sec. to 'the and now its inhabitants city furnishing Freeport water for fire domestic and uses protection, manufacturing and and other uses shall be entitled to purposes, purposes, therefor, and for the use of meters, receive water charge the rates fixed and no hereinafter more. prices

“ Fire Protection Uses. and Public Said shall entitled and re- corporation charge “Sec.' from the ceive for all water furnished city Freeport fire and other uses protection purposes hereinafter defined and enumerated an annual rental or rate of dollars fifty for each double-nozzlefire now in use in the ($50.00) hydrant said be ordered city any hereafter Freeport, council of Freeport, pay- rental able in semi-annual instalments on the fifteenth day (15th) that it shall be shown January July, provided certifi- cate the committee on signed by water, and chief city engineer of fire test works of department said corporation has been made within six months, that such (6) works have been such condition as to furnish at all times and for of time a fire sufficient to throw pressure six length (6) fire from six streams chosen on hydrants committee (6) water, each feet two and one-half inch through fifty (50) hose and one inch nozzle from each so chosen to a hydrant one hundred (100) feet, maintain its height equivalent at the nozzles of the Where the works of pressure hydrants. are not shown

said to be maintained in.condition such fire furnish the rental one-half shall be pressure hereinbefore fixed. amount The above rate and rental shall be full for all furnished For water, as follows: fire payment of fire including hydrants protection setting furnishing all water-used the fire fires department extinguishing all water used the committee practice, o.n *5 TERM, 1900. 592 . for

Counsel Parties. for and in flushing sewers; said cleaning, washing, gutters city, and for all water used for fire hall, and police stations, and for fountain in offices, other city drinking when park de- and for all sired, schools in churches public' city.” The ordinance further established detail maximum rates for water to'be furnished for domestic and uses manufacturing uses other when furnished without also meter; rates when furnished or measured meter." There awas penalty pro- for vided rates than those established. charging greater The ordinance was to take effect from the date of its passage, and the of further .reserved. regulation

The rates established the ordinance of ÍS96, February 11, less than those considerably established ordinance 1882. June, of error the contentions in assignment various presented 1896, that-the ordinance of the statutes ways February of which it was claimed to have been pursuance vio- passed, the United lated'the Constitution of States, the ordi- nance and statutes of the contract made impaired obligation of June, the ordinances plaintiff, deprived without due of law. of its process property aré the State The statutes urged applicable are cited the contentions margin,1 parties James for C. and Mr. W. Hyde Mr. George plaintiff Fry error.

Mr. A. J. defendant error. Hopkins after the case as J ustioe de- stating above, Me. McKenna, of the court. livered the opinion villages An act to enable Cities contract for a water for use, levy public pay the tax supplied. and collect for water so April 9, July 1, Approved 1872, in force 1872. People Illinois, represented it enacted State of Sec. 1. Be Assembly, villages That in all General cities where waterworks .by incorporated company, hereafter constructed or vil- villages may lage authorities in such cities arid contract with incorpo- use, company rated thirty years. 1871, p. exceeding Laws of Public Illinois CITY. FREEPORT COMPANY v. WATER Opinion of the Court. on its decision its opin- the State based Court of

The Supreme Illinois, Water Co., Danville of Danville in the case ions *6 In that same statutes case the 235. Illinois, 180 299, and was and contract which volved, bar, case at in the as to ordinance similar based a substantially claimed was in the controversy. that involved pending from, it in court whether of the clear It is not opinion could' not be to decide that tended municipal corporations bind themselves irrevocable to invested with powér we so, If cannot concur to water rates. contract not regulate times,, We decided to the that have contrary many view. v. Los Co., Los Water Angeles City and lately Angeles very v. also Walla Walla Walla Walla S. 558. See U. 1900, 177 is more S. where the extensively Water 172 U. Co., 1, 7, subject New Water the cases reviewed. See also Orleans discussed and v. 115 S. 674. Rivers, Works Co. U. that if it not mean-to was the declared

We do óf sáy policy of alienation of a func- the State the power governmental exist, tion did not asserted would not subsequently In v. controlled Stevenson School policy. Directors, and in Davis v. 225, 255, 87 Illinois, School 92 Illi Directors, it held 298, was school nois, boat'd could not make a contract for teachers to employment extend beyond and this current was year put upon ground the inability to of one board control the exercise of the functions of its suc St. cessor. In East Louis East St. Louis Cas Coke Light & Illinois, decided Co., May, 1881, doctrine of those incorporation provide for of cities and villages. Approved An act April 10, 1872, July 1, in force 1872. city council or Sec. 1. The board trustees provide have shall boring water sinking wells, artesian or wells, regulation pumps, cisterns, construction reservoirs or money waterworks, therefor, borrow and to any person authorize private construct maintain the -same at such rates ordinance, fixed and for a exceeding thirty ; years unnecessary prevent ; prevent also to waste of water pollution injuries wells, water, pumps, to such cisterns, reservoirs Public of 1871, p. 259; works. Laws óf Illinois water 1 Starr & Curtis’ p. §175. Stat. VOL. clxxx —38 TERM,

Opinion of the Court. cases was to a contract adopted applicable rates, gas nor One Justice asserted it with rejected. great empha- those cases. The sis, court, left it however, quoting disputable, decision on other There was at placing grounds. least ad- monition in those cases into persons contracts with entering If there was we need not de- municipalities. anything more, are as there other cide, grounds judgment. Court did decide in the Danville case Supreme (l).that

the water been under the company having incorporated gen act of efal the State, incorporation approved 18, 1872, April of the act entered into and formed a provisions part and that section charter, the act (inserted mar legislature gin,1) regulate provide at which the should rates, to the company reserved; of the act of city, (2) language *7 and in 1872, force 9, 1, 1872, July (inserted mar April did not to make and fix necessarily gin,1) imply The court further said in rates.” 178 Illinois at 309: page ‘ “ The to contract for a of water for authority supply does not use exceeding thirty years’ necéssarily should be fixed for the entire supply imply price could be made for the entire but term, supply period. to determined time and the time, is to be rates to price rules of the common law. v. settled by Carlyle Carlyle Co., & Power 577.” Water, Illinois App. Light cities, incorporated villages any general to enable towns under act An special charges to fix rates supply law of this State or .and individual, by company corporation any furnished an or water city, village Approved and the inhabitants town or therfeof. such 1891, July 1, 6, in force 1891. . June by People Illinois, represented it enacted of the State of Be Sec. 1. Assembly, corporate city, That the authorities of the town General- incorporated any general hereafter under special now or or village, or law any individual, company State, been, in which or this has may be, by city, village such authorized town or hereafter or city, village thereof, and the town or inhabitants to such be and are empowered prescribe by hereby ordinance maximum charges rates and individual, such company of water furnished corpor- city, village and the thereof, town inhabitants such such ation rates v. FREEPORT CITY. WATER COMPANY

Opinion, of the Court. have to follow this de- that we do necessarily true It is article is invoked we decide section 10, "When cision. its formal execution of contracts —not only the fact

ourselves construe for ourselves and therefore law, but basis legal it is claimed to rest." In State the statutes of the to incline to we are said, also disposed agree- such we have case, need These principles hardly ment with the state court. We have become elementary. may

citation of cases. They of Mr. Justice Bur- however, Bradley quote, language After 107 U. S. stating peculiar- gess Seligman, in the same of the existence of coordinate two ity jurisdictions of mutual and the for the exercise territory respect necessity inconvenient results, and deference to avoid anomalous courts of Federal yet asserting necessity exercise the learned Justice said: independent judgment, “ Since the of the law is carried on administration ordinary the state the course courts, happens necessarily of their decisions certain rules are which become established rules of and action in.the and have all the effect State, property n and which law, it would be This disturb. wrong espe- true with cially the law of real estate and the con- regard struction of state constitutions and statutes. Such established less, rules are always regarded Federal no than courts, the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, just charges and reasonable. And in corporate case the author- city, ities of town or village unjust shall fix and unreasonable charges, same reviewed and determined the cir- *8 the.'county cuit court of in which city, such village may town or be. 1891, p. 85; Public Laws of Illinois of p. 868, 1 Starr & Curtis’ Stat. 458. § Incorporation Section 9 of the General opinion Act cited in the is as follows: general assembly shall, times, The prescribe at all have such provisions regulations and may advisable, as it deem regulations and provisions shall binding corporations on and all formed under the provisions provided further, of this act: And That this act shall not be any private held to revive or extend charter or granted law heretofore passed concerning any corporation. 9, Corporation Section 1Act; & Starr p. Stat. Curtis’ 59G TERM,

Opinion of the Court. it is the of the Federal duty courts to right exercise their own as do in judgment; reference to the they always doctrines of commercial law and So general when con- jurisprudence. tracts and have transactions been entered into, have rights accrued thereon under a state of the particular decisions, when there has been no decision of the state tribunals, Federal courts claim the their properly own in- to'adopt of law case, to the terpretation applicable a differ- although ent the state interpretation may courts after adopted such accrued. have But even in case, such rights the sake avoid and to the Federal harmony confusion, courts will lean towards an of views with the state if agreement courts them seems to balanced with doubt. on question Acting these as founded are on they comity principles, good sense, the States, courts of United without their own sacrificing dig- as endeavor tribunals, avoid, nity independent most cases do conflict with the avoid, any unseemly well-considered. of the state courts.” decisions these to the case at bar, we solve its

Applying principles ques- tions. The Court the State Supreme .on case passing the acts of 9th and 10th considered only April, 1872, but as we have also, said, the municipalities, regarding general act Under the 18,1872. latter the April incorporation plain- “ and it was held that the act tiff was must be re- incorporated, ” into and as charter forming part entering garded statute reserves to general The assembly plaintiff: “ corporations government prescribe it deem advisable.” as The lan- provisions regulations it alone, is difficult comprehensive. Regarding is very guage are not covered what it. objects legislation to conceive it to of the State has construed be of Court The greater Supreme usual reservation of alter than import charters amend the corporations. it was not contends that however, intended plaintiff, “ to interfere with the terms, provisions,” regulations of the corporation but management' itself,”

internal business of acts which control the classes relation those exist- regulate individuals and the between stockholders ing *9 freeport city. company Freeport 597 v.

Opinion Court. third between and the relations corporations an entirety, on their business or is, the manner of ; carrying persons We think the con- powers corporation.” exercising made no distinction be- The statute narrow. struction is too the external business corporations— tween the internal relations to their stockholders their relations between but exertions of third Such are special persons. legislature possesses. U. S. Massachusetts, 25, v. provision

In Beer Co. wa£ and duties of of an act on powers defining .general passed The the beer company. affecting manufacturing corporations construed provision statute was enacted general “ the legislature may was as follows: Provided always, make time to due notice to time, any corporation, upon' of the further provisions regulations management and for the to re thereof, wholly government act or thereof, peal part establishing any corporation, beer incor shall The expedient.” deemed company in 1828 for the malt porated purpose manufacturing liquors all their It varieties.” was held that the provisions in' the were charter of the beer adopted and were a .company* of the contract between the State and the ren part company, the latter to the exercise of subject dering power; and forfeiture of seizure certain malt in which were liquors, tended to be sold violation of the law- prohibitory liquor sustained. passed that section

But 9 of assuming act general incorporation is correctly interpreted by we are to the plaintiff, brought ques- of the of the tion make an irrevocable contract water rates. claimed thirty years, fixing The under the statutes' of 1872, heretofore quoted. Supreme Court as we State, have decided seen, claim, against and 'the if-the principle Burgess Seligman ruling applies court the contention of the is balanced plaintiff doubt.” There "wereno previous interpretations statutes the state courts which the had a plaintiff faith of the and com- It acted statutes alone, rely. to a mitted its of the statutes. judicial rights interpretation TERM, 1900.

Opinion Court. The rule which such cases has often governs interpretation *10 been declared. We deci it, following many prior expressed sions, Detroit Street v. Detroit in Citizens’ Railway Railway, 171 U. S. the of a be power municipal corporation, be exclusive must terms. grant privileges by explicit If inferred from other it is not the powers, power enough it is convenient to other must be to them. powers; indispensable In v. McDowell, Smith the Court Illinois, 51, 62, Supreme “ of the State the rule as Their follows: expressed power [the of the is measured power municipal corporations] legislative can exercise are grant, as they powers only expressly or are granted, the necessarily implied powers expressly conferred.”

The Court of the these It Supreme State applied principles. held that an irrevocable contract rates not was specific other with which the of indispensable the cities the powers State were invested. a distinction And was made between a contract which related to a which function, governmental and a contract of rates said which related be, was regulation in their not nature, to franchises were which, though public yet of water was said to be. This governmental, of it the statutes held, observed, distinction, gave but contract not the other —the kind of to make one power but not water, of power for a power “ rate for unalterable thirty years.” a fixed and pay of the statute of the 9th of the silence This was deduced from all favor of ambiguities of resolving April necessity it said, when the But disappears, public. ambiguity the statute of the 10th, statute of the 9th was considered mate- “inpari as it the statutes had to as be, necessarily one of the act ria, and should Section be construed together.” “ court said, of authorizes,” the 10th of April to construct and main- council to empower private ordinance. be tain may waterworks at such fixed mot are to The that the waterworks of this meaning language one be rate as be fixed by maintained at such established may clause, ordinance for a not exceeding thirty years. period ‘ words not years,’ exceeding thirty qualifies v. FREEPORT CITY. COMPANY WATER Opinion the Court. of but same,’ maintain qualify

‘construct dops ordinance.’” fixed rates words ‘at such and in resolving ambiguous, are certainly The statutes rule de the court applied of in favor ambiguity Commission the Railroad We said cases. clared many Waite, Justice Chief S. 307, by 116 U. Cases, rates : regulation contin ais government, This regulation it at all can away if it can bargained nature, in its uing which is in law or something be words grant, positive only must be resolved doubt, there is reasonable If equivalent. words Chief Jus In the existence

favor of power. ‘ 4 Pet. 514, 561, Bank v. Billings, tice Marshall Providence in a case which presumed abandonment ought it does not to abandon appear.’' the State deliberate purpose *11 where cases our and the reports rule is elementary, This are numerous.” considered has been applied to the Illinois are stat- remarks obviously These applicable to is whether the munici- power given utes. question or was to be indeed occasional, of the State continuing palities in its intended have but one exercise purpose, only special in''contract for If latter then bound had thirty years. would have intention it been natural to been the it. express can be taken for and natu- The-fullness sovereignty granted, be taken be and should An would rally granted. example the act June 1891. 6, afforded act by By corpo- authorities of have authorized or shall rate au- any city or individual, water, thorize any company “ be and are max- by hereby empowered prescribe ordinance of water furnished imum rates charges by . .” . There is no such individual, corporation. company repetitions provision declaring explicit —none one. Who now doubts that conferred a continuing claimed and were different it is ? If were pleading rights but now them, have to listen undis-. we interpretation might to that without resistance them we turbed yield meaning by demands in the absence which the subject-matter negativing words. TERM,

Opinion of the Court. Our conclusion is that the powers the statutes of 1872 can, without be construed as straining, distributive. The council was authorized to contract with or cor- any person to construct and poration maintain waterworks at such rates bemay by ordinance, and period exceeding fixed thirty The words years.” con- ordinance ,” may fixed strued to mean ordinance once for all to endure during whole thirty years; ordinance from time time as be deemed might Of the necessary. two constructions that must be which is adopted, most favorable to the public, that one which would so tie the hands of the council that the rates could not be adjusted to both justice re- parties might (cid:127) at a time. quire particular

It is also urged that the by plaintiff ordinance of 10, February of its deprives plaintiff without due property process of law. The of this grounds contention are that the stat- (1)by ute of June 6, none of the circumstances it is which, constitute a rate claimed, are just reasonable, required considered authorities cities nor is notice previous estab- given parties water; required furnishing (2) not a rates is a act, that, there- judicial lishing legislative, to review determine them fore, given by is void; statute to the circuit court cities, towns vil- (3) in their of the State are made own cases. judges lages The first is answered San Land & Town Diego ground and we 739, 750, Co. v. National 174 U. S. there City, may say is no of the reasonableness rates. It was question alleged of the defendant that the rate's the ordinance of pleas when established. June, 1882, unreasonable This was *12 It conceded demurrer. that by alleged pleas continued This conceded unreasonable. the de they by murrer. It was also that the established rates alleged and 10,1896, ordinance reasonable. February just This of The was also conceded. must be allegations, therefore, accepted as true it conclusions from And was averred investigation. “ ” besides that refused to treat with a committee plaintiff “ council, reduce or fix city neglected appointed such rental and water rates so as to make them reasonable just, fair.” v. FREEPORT COMPANY CITY. 601 WATER Peckham, Breweb, White, Bbowh it is necessary only say second ground Of the. to fix to the the rates. It of 1872 gave statutes therefor granted privileges plain- a condition became emphasized of 1891 only repeated act power. tiff. The is of its deprived why plaintiff third urged prop- The ground of is from real abstract, law as free due without process erty With func- the other what grounds. plaintiff, grievance be the State' invested may courts the circuit tions is also a matter construction, It concern. of Federal be state The follow courts. be obliged which we might have not to been seems arewe now reviewing presented ground bar or the State either case at Court to the Supreme it based it and which referred opinion. the cases Co., v. Danville Water supra, Danville pro In City of but not was referred to, way of the statute vision to the circuit said given it can confidently fixed council was to review court only or unreasonable, them reasonable and to determine fix The former farther and rates. the court could whether go But whether is not, a natural construction. seems has no reviewable No been grievance. has yet plaintiff to be exercised circuit court against plain attempted no has it. tiff and been denied judicial remedy

Judgment affirmed. Justice with whom White, concurred Me. Justice Me. qnd Justice dis-

'Brewer, Justice Peckham, Mr. Mr. senting.

The must from the result far-reaching consequences conflict be- which this case is decided, principles upon those tween and what I conceive to well- principles previous settled rules me to the reasons for dissent. law, state my impel a law An entitled Illinois, legislature passed enable act to cities and to contract for a villages collect tax to water use, levy pay The act full as follows: supplied.” 1. Be Illinois, it enacted the State People Sec. *13 TERM, 1900. White, Brewer, Peckham, Justices and Brown That in all cities and vil- General Assembly, represented where waterworks hereafter be constructed by lages may or such authorities incorporated city company, village such cities contract with com- villages may incorporated for a water not ex- for a use, pany period thirty ceeding years. “ Sec. 2. such or so Any city may village, levy contracting, and collect a tax all on taxable or such within property to for the water so village, pay supplied.” This act was on Public Laws of approved 9,1872. April Illinois, 1871-1872, 271. p. At the same session, an elaborate law was entitled passed “ An act to for the provide of cities and incorporation villages.”

Article under X, (Miscellaneous heading Provisions.)— Water,” section 1, as follows: provided “Sec. 1. The or council board trustees shall have to water provide or sink- boring of artesian ing wells, construction and regulation wells, cisterns, reservoirs or and to pumps, waterworks, borrow therefor, to authorize money p>erson primate corpora- tion to construct and maintain same at such rates as may by ordinance, exceeding thirty years; fixed also waste of prevent unnecessary water.; prevent water, to such pollution cis- injuries wells, pumps, terns, reservoirs or waterworks.”

This was subsections followed, granting full the event deter- municipal corporations, they mined to construct their own waterworks, land, acquire etc., taxes, and to levy collection providé water rates or assessments for the use of the to the supplied inhabitants from the Avorks to be constructed. This act was on Public approved 10, 1872: Laws of April Illinois, 1871- p. At the same session an act Avas An entitled act con- passed It Avasin cerning effect' a corporations.” law general regulat- ing organization the State of private corporations Illinois. Section 9 thereof, reads as part, folloAvs: “ Sec. 9. The at all general assembly shall, times, have poAArer COMPANY FREEPORT CITY. FREEPORT WATER White, Brewer, Peokham, dissenting. as it ad deem regulations provisions prescribe *14 and on shall provisions binding visable, regulations formed of under this provisions and all corporations any act. ...” Public Laws of Illi- 18, 1872. April

This act was approved 299. 1871-1872, nois, p. an clause ; acts contained emergency

None foregoing different act went dates, on each hence, and, approved although of 1872. Constitution viz., 1, on the same July into force day, C. Ann. Stat. Starr (2d ed.) sec. Illinois, IV, 13; Art. & p. cor- of

The defendant in error, city municipal Freeport, Nathan ordinance June enacted an 6,1882, giving poration,on or his of constructing, maintaining right Shelton assigns from for the term of thirty years waterworks operating fire of the first of furnishing day July, purpose of to and for the of said city Freeport protection for domestic and thereof water suitable the inhabitants The ordinance consisted of fourteen manufacturing purposes. ma- for a stand that the It sections. pumping provided pipe, least three million of at gal- should capacity chinery possess increased as the of to be hours, growth lons water twenty-four than needs and that not less city eight required, should be mains, of of miles dimensions specified quality, the distribution of also laid for water. was Ample provision for the extension these mains the water made company, obli- direction of at its cost, upon city government. to erect further Shelton his was imposed upon assigns gation ten to fire at of not less than double-nozzle the rate hydrants coun- each mile of main whenever and wherever pipe, city cil should direct. to be made for fire Payment city rental one hundred annual for the first of one hydrants over hundred dollars all said one hundred each, hydrants, to one hundred and an annual rental of fifty, eighty up and for all said over one hundred and each, hydrants dollars It an annual rental of dollars each. fifty fifty, expressly 8 of the that the section ordinance rentals hydrant provided, “ full continue term this ordinance, shall during specified TERM, 1900. '604 White, Beckham, Brewer, unless said shall sooner become the owner said water- city works as hereinbefore which event said rental provided, shall cease.” section 6 the reserved to itself By city to ac- at the quire waterworks purchase expiration thirty the valuation of years 1, 1882, July property determined the section. provided The ordinance contained for the provisions use water free from the charge hydrants.on streets curbed and guttered, purpose washing and froln flushing gutters, hydrant purpose and all sewers in said flushing any whenever the city council shall deem for sani- necessary tary purposes, notice to giving person charge . said waterworks.” It was also shall provided have water free of for the use of the lire charge department, *15 and for hall and the oiflees for city furnishing occupied city for all of the for schools all purposes, public city, churches, for four fountains for and one fountain public drinking only, or should the erect the public city same.” square park Full were contained the ordinance as to the specifications for maximum to be made water to be furnished indivi- charge dual consumers. In other the ordinance words, formulated a for the construction of the only works, complete system, for the time but their therein. operation during specified It was that the ordinance should become a provided binding its Shelton within a writing by acceptance and when stated time, so should accepted provisions altered or amended any without the changed, way consent of both thereto or successors or their parties assigns.

On June within the time 27, 1872, limited, Shelton filed his In written the contract. acceptance following August' he all his to the assigned rights plaintiff error, corporation under organized provisions statute general relating to private corporations, approved April 18,1872, above referred to. assignment recognized by municipality, that the works were is constructed in unquestioned accordance contract, with the and that all which it obligations imposed were to the discharged company satisfaction of the municipality. WATER COMPANY FREEPORT CITY. White, Bbeweb, Peckham, Beown under the hundred and 1, 1896, one January

Up were to that placed position, up twenty-one hydrants rental as the contract was date the annual provided regularly the municipality. paid by of the State of

In 1891 an act passed legislature enable “An act to towns and cities, Illinois entitled villages or law of this State to under special incorporated any general fix water furnished for the rates and charges such town any city, individual, company this stated, thereof.” inhabitants Briefly village as its title act, indicated, municipal corporations empowered for rates and ordinance maximum prescribe by charges or cor- furnished individual, of water such company thereof, and the inhabitants such town poration city, orvillage ' The act and reasonable.” rates charges just of the rates moreover that the reasonableness pre- provided scribed be tested be- by municipality might proceedings fore a court. designated itself this

Availing statute, the on 11, 1896, ordinance Freeport passed February reducing to be under the contract of 1882. It paid stipulated for however, consider, only this necessary, purposes made on the case, the reduction- for price the reduction At hydrants. they paid annually at the rate of dollars uniform each. thus Whilst fifty seeking sum which the reduce was to pay hydrants, effect retained all ordinance in the contract obligations benefit of the water city resting upon *16 company, among them to the additional mains as and to duty lay directed being for furnish free water schools, churches and other purposes. to for the at the city refusing pay any longer hydrants an action was instituted recover original to price, amount asserted to be then under the due contract. Without the form it to on suffices the one stating pleadings, say hand the of the water to recover to company right according the the rates fixed contract was asserted on the original other of the at the to the reduced rates city pay only obligation was' It was on be- expressly charged alleged. pleadings TERM, White, Bbewer, Peckham,

half the water that the enforcement of the ordi- company nance the rates would be an of the obli- reducing impairment of the gations contract, hence violation of the contract clause of the Constitution of the United States.

The case was to the taken ultimately Court of Illi Supreme nois, and, the of the case of authority analogous City of Danville Danville Water Ill. 299, Company, judgment went favor of the the water against company.

Ill. 179. The of the court in opinion the Danville case was not unanimous, three of the seven Without at judges dissenting. to the its details tempting which reproduce reasoning court reached its me conclusion, seems to that all the views are embodied expressed : following propositions That the of water rates was a fixing public attribute, from its natui’e was alienated incapable being restrained of á even obligations contract, although express authority to do so was conferred on the legislature municipality. That if this even to case, for term definite paid required authority legislature, no such had been conferred grant municipality acts because, this case, albeit, legislative gave power time for a of water, contract for a definite this did not fix the rates to be the water paid give right during the time which the was authorized to municipality contract; contract for a definite argument being time is one and the of the rates for the same fixing time thing is another contracted for and different thing. That under the that the even contract for hypothesis time included the to fix a definite the rates authority the reservation found time, general private incorporation law to confer operated legislature change rates, because made although originally with an had been to the individual, defendant, assigned under incor- organized general private private law. poration all but one of

These embrace the con- propositions practically at and their bar, consideration tentions urged argument ih. will therefore dispose controversy, substantially except *17 WATER COMPANY FREEPORT CITY. White, Brewer, Peokham, dissenting. Justices no- which we shall to, above referred separately the particular in which have the order they concluding. before Inverting tice In .to consider their correctness. come logical I stated, been Was there arise are these: the questions sequence the authority to confer upon municipality in the legislature fix the rates use contract for for contract water public such ? If so, a stated the for period paid did it contract un- municipality, out to that effect taken the contract If did was so, it ? it' der the Constitution contract clause of the protection reservations contained of the reason the United States water under which the law incorporation private general ? was organized company that there below intimated

It is even opinion of the State Illinois in the constitution limitation any express a munici- to authorize legislature restricting fixed for use for a to contract for water period public pality for such time. therefor rates agree upon paid of a State restriction absence legislature That contract, statute, empower municipality may a stated for for use for and fix the public to be such term for that such same, paid during if made is Constitu- protected impairment by ño New States, tion United longer open question. v. Rivers, Works U. S. Company 1885, 115 Orleans Water In that the exclusive ivas to continue for case right granted it the act Avhich was held a contract constituted fifty years, of water for furnishing stipulated continuance of use consideration during in ac- Avhereof the franchises and used company, property with its from taxation, state, cordance charter, exempted After that the case observing municipal parochial.” p.677. decision New Orleans before court Avascontrolled v. Louisiana Gas Company, Gas Company 115 U. S. said Harlan, Mr. Justice

court, (p. 680): speaking,through if for, are tivo distinguished principle; State, of her it was before pres- adoption competent have held was, ent as we constitution, provide supply- TERM, 1900. White, Bbeweb, Beckham, Brown and *18 Orleans its with New ing people illuminating means of mains conduits at by pipes, the cost of gas placed a it was ways, private corporation, public equally compe- a tent for her to make valid contract awith private corporation the same means, and wholesome supplying, pure same for like use city.”

In the case, Gas at Company the court beginning page 660, considered and held untenable the contention “that, as sup- of New and its Orleans with inhabitants plying has relation gas to the comfort, some and, public sense, health public and the for that is an safety, and, reason, to which object it extends, was police power one competent legisla- limit ture to or restrict the of a subsequent legislature to those After respect subjects.” various reviewing decisions this feature of the case, the court said bearing upon (p. 664): “Numerous other cases could be cited establishing doctrine State restrict may exercise'of some its most We important powers. refer to particularly it is held that in which those taxation exemption at the time advanced, consideration valuable services to constitutes a contract within be thereafter the mean performed, v. New Asylum Orleans, Constitution. 105 U. S. ing 8 Friendless, Wall. 430; New Home v. 362, 368; Jersey State Bank Ohio 164, 166; v. Cranch, 16 Wilson,1 Knoop, v. Tax 3 Court, Gordon Appeal How. 363, ;376 133; How. 13 Reid, v. Railroad 264, 266; Humphrey v. Wilmington Wall. v. 244, 248-9; Farrington 16 Wall. 95 U. Tennessee, S. Pegues, 689.” cited was the cases applied doctrine of St. Tam just Waterworks, v. New Orleans U. S. 64. Waterworks many in Walla Walla v. Walla applied was also It recognized In that case S. the court Water 172 U. held Walla Co., a in contract contained water com valid stipulation Walla bound of Walla itself not to erect pany life of a contract, viz., the stipulated waterworks during twenty- decisions to of the earlier which we have five years. Speaking Mr. Justice court, above speaking through Brown, referred, said (p. 9): COMPANY WATER FREEPORT CITY. v. Brewer, Beckham, White, in these cases the' true that franchise was It is di granted, but it is the state clear

rectly by. legislature, equally such be bestowed franchises upon corporations munici may do so is their authorities, given provided pal exercise their may State sover only charters. legislatures of it to but inferior delegate portions may directly,, eignty is desirable for their as, bodies local judgment, legislative of Ohio in Court State As was said Supreme purposes. £ St. 262, Ohio 293: Co., & Coke And, Gaslight Cincinnati ’ franchises establish that such (granting assuming £ we are not exercised directly, disposed may gas works) also be exercised indirectly, through doubt *19 invested, of a clearly police municipal agency This case is the directly necessary authority.’ purposes, 101 also v. in above cited. See Wright Nagle, line with those & Coke Co. Hamilton City, U. S. Hamilton 791; Gaslight 163 U. S. New Texas, 207, 216; Bacon v. 146 U. S. 266 ; : S. . Orleans, Co.v. New U. Orleans Waterworks in for a of water is innocuous itself, contract Where a the to the order of out with due and is carried regard good city inhabitants, the aid of the and the health of police power it.” cannot be invoked impair ... abrogate the in the if authorized absence of That a legislature, on state constitution the limitations the legislative power, of water a contract that the could validly stipulate the rates should not reduced by during existing municipality the recent case the contract expressly adjudged period, Co., of Los v. Los Waterworks Angeles City (1900) Angeles in that at time the contract was the indeed, case, U. S. 558. but inasmuch without to make it, the made, authority enact its action had been ratified by legislative subsequently was held to be the' effect of such ratification ment equivalent this further But I need not a pursue original grant. prior of the as I understand case, since, opinion aspect it not sanction court, Supreme does theory adopted does not therefore this and hence Illinois on Court subject, so settled in terms overrule firmly previous principle of this court aof water-supply subject-matter decisions VOL. clxxx —39 TERM, 1900. Peckham, Brewer, "White, for definite and that when con- time, be contracted so contract are

tracted for the of the from protected obligations the United States. Constitution impairment by That in the case some "was authority present delegated by contract for un- is legislature municipality is also undér the thus questioned, undisputed conferred the acted in the contract which municipality making is now in which issue then arises is controversy. simply Did the this, legislature authority it to authorize so to fix municipality doing rates to be for such the time stated Of paid ? supply during an course, answer this involves an question analysis statutes of Illinois under which the to make the as- authority serted contract arises.

Before the text of the statutes it is well to state approaching devolves this-court in scope deter- duty which whether there was a contract mining principles must control is con- so. It where a elementary doing tract is asserted have been state impaired subsequent to form this court constrained legislation, is independent n the existence of the and its It judgment terms. true that the contract where equally originates' state of an statute, if, exercise ex- independent judgment, becomes, istence or nature of balanced in doubt, doubt will be resolved favor construction given to the state statute the court of last resort of the State. *20 But this not a limitation is to form qualification upon duty and does that independent imply because judgment, statute has been construed contract the state against by “ court, therefore the in matter is balanced doubt.” If the rule did so it would follow that case where a every imply, right arose from a state and the court below held statute, there was no of that this court review would be question the decision below would wholly since nugatory, engender doubt, where decision of the doubt arose the state court would to rule then have be followed. The to be when applied the ihatter is balanced in doubt is this nothing more, inif itas is its to a using do, independent duty judgment, CITY. COMPANY FREEPORT FREEPORT WATER Peokham, White, Bbewéb, mind court,-then doubt arises iu the interpreta serious doubt created state serious court, tion acting upon will cause the exercise judgment independent judgment, the state of the construction favor given preponderate v. Louisiana, court to its own statute. Board Liquidation S. 622, 179 U. if asserted enforced where a

It is also that right unquestioned of the lawmak- will contractual limitation power put be exercised of a State, ing authority presumably of the continued in favor doubt is to be resolved benefit, public In other that no words, existence of the lawmaking power. can be

contract limitation on the upheld government powers be doubt on the sub- if- there mere or sustained implication must arise limitation The existence of such a contract ject. intendment. clearly by express these I cometo consider mind, legis-

Bearing principles lative acts which it is asserted the contract arose. question mind conferred Whilst it is clear my quite powers under different statutes were exerted respective circumstances and that the contract which is here question more within the of the act came especially scope approved I this 10,1872¿ view, since, shall not to discuss whether April stop the statutes be treated au- fully separately together, they thorize the contract. this I first the con- Under view approach is in all sideration the act Its 9,1872. April language cities and where waterworks hereafter con- villages may '. authorities . . structed, village for a use period exceeding And the second a munic- section conferred thirty years.”- taxes for the water so ipality contracting levy pay to con- so Clearly, authority supplied.” expressly stated. The tract for a of water period argument water for the is that this period right the sum did not include the to agree upon thirty years In the conten- words, for it for that other period. paid to contract for the existed for is that the tion right purchase which was to fix the stated without price itself. concomitant of the and necessary an inseparable *21 TERM, 1900. Breweb, White, Peckham, dissenting. since contract for the for This the a follows, inevitably supply fixed to for it are one time and the be made and each payment the correlative of other. That the statute contemplated that the contract should include the is mani- price paid result which section, of second confers festly to raise taxation the to municipality money pay the sum that the stipulated. Upon hypothesis to not for for did include the thirty years supply agree- ment to the stated pay supply the second during period, section of the would become act wholly superfluous. Indeed, of construction which excludes the rates theory from the to contract for the would render period specified whole act if meaningless. Undoubtedly, waterworks existed and use of of was made the streets the owner the absence works, compel at water and reasonable rates would furnishing exist just It law. follows that the statute should operation not be con- strued as of that merely authorizing doing thing could been done have without but must in reason be passage, held of a water to have obtaining empowered supply facilities of the water free water system, of extension for certain' by way and fire and all the other protection incidents purposes named and at the such period The same view such obtains from period. con- agreed upon section of first Article X of the sidering provisions this act of section By municipal authorities April were authorized to provide by construct- or to waterworks, the same accomplish ing municipal purpose by authorizing “anyperson private construct same at such rates as maintain the be fixed may. ordi- nance thirty years.” There exceeding period here if authority municipalities express delegation they did not wish to assume the burden their own constructing to contract with an individual or waterworks, private corpora- maintain them at tion construct and rates as bemay ordinance exceedingthvrty yea/rsP fixed a/ndfor mind fails to how could more My language perceive directly confer the contract for the authority positively FREEPORT WATER COMPANY CITY. *22 Browjs Brewer, Peckham, White, dissenting. and

Justices for the rates be therefor a as paid period agree of construction, the most technical rules thirty years. Adopting “ how the words at such rates as be do not understand I may ” for ordinance and a not fixed period exceeding thirty years by as to the construction and mainte- can be construed relating and not to the sum to be nance of the works for period paid of time. The for the for the same view length adopted supply “ at be fixed the court the words such rates as below was by may ” text as ordinance out of the and be treated can be taken by a and not the words and for following period preceding “ not as I understand in- it, this, But years.” exceeding thirty of writ- stead be statute, would equivalent construing a new one. authorized a con- whilst the statute ing Obviously, a tract for and the rates be it contem- supply therefor, paid that the rates must the nature fixed be plated things of an ordinance be embodiedin the passage “ ” therefore the words bemay fixed ordinance were inserted. In other order to words, insure under the contract the rates to be agreed upon, ordinance provided these rates for should fixed Both as I have designated period. laws, went into effect on the stated, same but whilst day, relating cognate subjects, exercise of contemplated con- ferred as a result of somewhat different conditions. The one, the law had in 9, a approved April view contract for a water to be made where

supply waterworks con- established, ferred to contract for such authority under such cir- supply fix cumstances and to for price paid the contract term in the statute. specified the law othér, authorized approved a April contract to procure construction waterworks, also in so to fix the rates doing for the definite which that period statute likewise enumerated. construe the To words bemay ordinance fixed not exceedingthirty years,” as found period statute as on the legislative prohibition to fix rates municipality stated is but law, that the to con- period say tract and fix the the definite time was at one and the same identical moment both given prohibited.

But.the construction below and now maintained adopted TERM, White, Brewer, Peckham, I understand court, leads it, further. As yet words be fixed ordinance and for a exceeding ” are not

thirty found years law a contract authorizing for water where waterworks were established when the was cannot agreement made, they to such a con applied tract. The is the then, following, inevitable result of the con struction to the statutes. The given to contract and fix rates for a definite time was the case where such a contract was made with an established water This company. however, power, but was given expressly prohibited where the of the contract purpose procure building of waterworks and the *23 of a of water to purchase be fur supply nished from the when works constructed. This is but to say that where municipalities were entitled to secure legally the water without the for a supply contract and at necessity reason able rates, were unauthorized to they contract fora definite time and at rates to be fixed that But in period. the case where had no such (for could municipalities power they not) an individual or course, to undertake compel the the to fix expense waterworks) rates for erecting power a definite was In other period absolutely prohibited; words, the to contract for the fix the supply price for a definite time where it was not at all and it needed, where in forbidden in the case absolutely nature of things such a was essential. Considering statutes sepa no doubt whatever then arises mind rately, to their my im a^ When are construed in materia this port. they pari conclusion becomes to me an absolute conviction. This must be the result, since it is to hold that if reason, impossible, meaning each statute is when considered plain separately significance of each when are considered disappears they together.

The contract as executed, beyond peradventure, expressly fixed the rates for the term for which it was agreed supply should be furnished. It moreover, imposed, upon water duties to construct extend the company works, which could arise and which cannot contract, only be as- reasonably sumed to have been but entered into the basis of upon an agreed The on the water compensation. obligations were not company WATER COMPANY FREEPORT CITY. Peckham, White, Brewer, a of water in accordance with to furnish the ca- simply at the of the inception existing pacity plant but came under the therein, company provided at the discretion of mu- plant extending duty largely covered contract. statutory period nicipality during furnish a volume of moreover, large agreed company, It is without inconceiv- charge. the same water during have been assumed would all able that these obligations during performed thirty they hypothesis as to understanding without agreement any years previous time. the same to be made during payment cited court opinion are be- Yarious authorities and were referred to low, theory argument, is that where the contention authority given they support fixed this for a period, incident contract does import necessary authority for the same In period. also other agree upon contended, the authorities words, cited, separate insep- arable.

theAll authorities cited are I excerpted do margin.1 to analyze them, pause myself contenting state- that not ment one single them, the decision except of a lower court Illinois, appellate rendered to the ex- subsequent ecution the contract here have considered, relation to the are cited to proposition they maintain. all They proceed *24 that where is upon theory to a authority given municipality officialboard to without contract, specification time, can board municipality for a reasonable only period, to be determined tenure office of: the usually by official board. That is, absence a time in the specification a limit to statute, from the nature implied resulting 1 Carlyle Carlyle Light Water, Co., v. & App. 577; 52 Power Ill. East St. Gaslight v. East St. Co., 415; Louis Louis & Edgar Coke Ill. 98 Millikin v. County, 142 528; Kalamazoo, Ill. v. Gale 354; 23 Mich. Des Moines Water Moines, 357; Iowa, Spring Valley v. Des Schottler, works Co. 95 v. Waterworks Gaslight 347; 110 S. Co., U. State Columbus 572; & Coke 34 Ohio St. Zanes- Gaslight Co., 1; ville v. 47 Ohio p. 317; St. Cooley, Greenh. Pub. Pol. Const. p. 206; 1 Corp. Lim. Mun. Dill. sec. 443. TERM, 1900. White, Bbeweb, Peokham, Bbown

functions of tlie whom the contract is I can- officials made. not conceive what authorities are held to these principle control a case where in the statute the time conferring authority the decisions in Indeed, expressly Illinois, (among fixed. them not cited but re- cases others which were below, only ferred to in those are now relied to sustain cases,)- to contract for a of a com- proposition power, or the of an services individual does not include the au- modity re thority agree upon compensation paid, actually fute the contention which it is sustain. alleged Thus, they Millikin v. 142 Ill. Davis v. SchoolDi County Edgar, 528; Ill. Stevensonv. Ill. rectors, SchoolDirectors, it was from a consideration of held, co-related though statutes, that where was conferred boards authority upon statutory individuals to render but no services, employ period mentioned the statute for the duration of such a con- hiring, tract be made for the current only lawfully hiring might it was conceded that the existed as a re- year, power necessary to fix sult for such right compensation demonstrate -the These cases unsoundness the con- period.' that the contract under here consideration asserted, tention, fix- dismembered should be by disassociating to contract for the authorized stat- from the-authority refute be- ute, also, my opinion, they assumption to fix rates cause the statute express power ordinance, gave a limitation on there did or could arise thereby authority for the term for which the to contract for the contract was price authorized. then in its valid,

The contract entirety being question Did the contract arise is, which arises destroy contained the reservation general private incorpo- ? ration law it must be borne in mind that

In this considering question whatever of the alter there was no reservation repeal, in the law or amend contained public corporations, regulating found the constitution of the nor was such a reservation State. The upon municipalities or for the construction of waterworks of water *25 v. FREEPORT COMPANY CITY. FREEPORT WATER Peckham, White, Brewer, as as individuals well to contract with authorized them corpo- the contract was and in this instance made rations, particular reservation in It is clear, then, an individual. acted act not have would incorporation private had remained of water if the supply that the hold, then, To hands of individual. provi- the law sion the ninth section of regulating private corpora- to which to assembly power reserved tions, general ad- as deem such might regulations provisions prescribe to as to retained visable abrogate corporations, here would al- involved, that, a contract like one import to there no reservation whatever abrogate was change though to water made a contracts as by municipal corpora- supply, intended to that the law was tion, deprive, private incorporation to contract with private corporations municipal as to That .water corporations supply. say, authorized make irrevocable con- corporations fully but such became revocable tracts, agreements when a private the other aside contracting But, party. these considerations, views I contract, which have mind demonstrate the already expressed, my clearly inappli- I of the reservation relied cability The upon. reservation, into have went effect on the shown, same as did the laws day expressly authorized the specifically making, of a contract for a municipal corporations, of water for with individuals designated corporations. statutes into effect gone the same having it would day, reason to construe .the mere beyond reservation of the legisla- tive regulate private 'corporations abrogating destroying express to contract legislative authority of water for a definite To specified do so period. would mere be, effect implication, set repeal aside the conferred express authority statutes, would amount that the had holding been authority had one breath and been retracted in the other. lg91

Indeed, the statute of which conferred the water rates—under the regulate which the ordi- authority nance here complained reducing rates, passed—shows *26 TERM, 1900. Brewer, White,' Peckham, dissenting.

. on its that face it was enacted under the authority regu- late but the existence private supposed corporations of A common-la to fix w legislature rates, right any This will become manifest when contrary notwithstanding. it is that observed statute authorized question municipali- to fix ties the rates for the whether furnished water, individuals by private corporations. no reference was made to it in the

Although below, opinion it is that as suggested argument there-was provision constitution State Illinois of exclu- forbidding grant sive therefore the contract here privileges, considered void it is because, such contract asserted, an ex- expressly ' clusive right It is, however, settled that privilege. mere a contract making for a definite water supply and the time of rates for such fixing time, accompanied itself obligation would not construct municipality does not amount waterworks for such to a of an period, grant . Walla Walla v Walla Walla Water Co., exclusive- privilege. This 172 U. S. fol 1, 14, beyond being question, clearly lows that even this hypothesis contained ah express implied stipulation .case would one else use the streets right not.grant of a waterwork the life system purposes during for such contract, exclusive and not stipulation within the the contract would come inhibition of the provision this arguendo of the constitution. We contro- say only, here of the contract versy validity so presented involves far as it affected the use and fixed the stated. supply during

(cid:127)In the contract been having authorized my opinion, expressly for a definite the. rates could period, agreed. upon not, during term of the the con- changed-,without violating clause the Constitution tract United .of and I -States; therefore from the dissent otherwise. judgment holding