Bellevue Water Co. v. City of Bellevue

• Decision Date: 28 December 1893
• Parties: BELLEVUE WATER COMPANY v. CITY OF BELLEVUE
• Court: Idaho Supreme Court

35 P. 693

3 Idaho 739

BELLEVUE WATER COMPANY v. CITY OF BELLEVUE

Supreme Court of Idaho

December 28, 1893

CHARTER OF INCORPORATE TOWN-CONTRACT FOR WATER-NOT IMPEACHED BY SUBSEQUENT LAW.-Where, under and by virtue of powers granted in its charter, an incorporated city makes a contract with certain parties and their assigns to construct certain waterworks, and to furnish the city with water for fire pur- poses, upon the payment of a stipulated sum by the city, and the parties proceed to construct such works and the same are accepted by the city, and the water supplied and paid for as stipulated for a series of years, the validity of the contract cannot be impeached or impaired by the enactment of a law by the legislature which went into effect some three months after the contract was made.

ORDINANCE OF CITY.-An ordinance of a city may be void in part and valid as to other parts.

(Syllabus by the court.)

APPEAL from District Court, Logan County.

Reversed and remanded.

Texas Angel and Richard Z. Johnson & Sons, for Appellant.

A nonsuit must be justified upon appeal, if justified at all upon the grounds stated in the motions, or at least this court will not affirm the judgment upon any ground that could have been avoided at the trial by additional evidence amendment of the pleadings, or in any other way, had it then been stated. (Mateer v. Brown, 1 Cal. 222, 52 Am Dec. 303; Kiler v. Kimball, 10 Cal. 268; Raymond v. Eldridge, 43 Cal. 506, 508; 1 Hayne on New Trial and Appeal, sec. 116; People v. Banvard, 27 Cal. 474.) A statute or an ordinance may be a contract, and indeed most contracts of municipal corporations are made by ordinance. (1 Dillon on Municipal Corporations, secs. 232, 450, 474; People v. Supervisors, 27 Cal. 678; Argus Co. v. Mayor, 55 N.Y. 501, 14 Am. Rep. 296; Des Moines Gas Co. v. Des Moines, 44 Iowa 509, 24 Am. Rep. 756; City of Quincy v. Bull, 106 Ill. 338; City of New Orleans v. Gt. Southern Tel. etc. Co., 40 La. Ann. 41, 8 Am. St. Rep. 502, 3 So. 533.) Our articles of incorporation were in evidence, and we proved we were, and had been for years, acting as a corporation. If there are any verbal defects, they are in nonessential matters that cannot be held upon a collateral attack to invalidate the organization of a de facto corporation, such as this is shown to be. (Spring Valley Waterworks v. San Francisco, 22 Cal. 440; Mead v. Keeler, 24 Barb. 20; Cross v. Pinckneyville Mfg. Co., 17 Ill. 54; Mokelumne Hill M. Co. v. Woodbury, 14 Cal. 427; Troy etc. R. R. Co. v. Kerr, 17 Barb. 518; Eaton v. Aspinwall, 10 N.Y. 119; Judah v. American L. S. Ins. Co., 4 Ind. 334; Dunning v. New Albany etc. R. R. Co., 2 Ind. 437; Cross v. Pinckneyville Mill Co., 17 Ill. 54; Angell and Ames on Corporations, 573; McFarland v. Triton Ins. Co., 4 Denio, 592; Eaton v. Aspinwall, 19 N.Y. 119; Caryl v. McElrath, 3 Sand. (S. C.) 176; People v. Frank, 28 Cal. 519; O. etc. R. Co. v. Plumas Co., 37 Cal. 361; People v. S. etc. R. Co., 45 Cal. 306, 313, 13 Am. Rep. 178.) The validity of an ordinance giving to a company the exclusive privilege for a term of years of laying water pipes in the streets, etc., can be contested only by some other company or individual afterward claiming such right. (Grant v. City of Davenport, 36 Iowa 396; Dodge v. City of Council Bluffs, 57 Iowa 560, 10 N.W. 888, 889; East St. Louis v. East St. Louis etc. Co., 98 Ill. 415, 38 Am. Rep. 97; City of Houston v. Houston St. Ry. Co., 83 Tex. 548, 29 Am. St. Rep. 679, 19 S.W. 127, 129.) When the legislature has conferred upon a city the power to provide itself with a supply of water the court cannot circumscribe such grant. (Atlantic City Water Works Co. v. Atlantic City, 48 N. J. L. 378, 6 A. 24, 15 Am. & Eng. Corp. Cas. 327.) An executory contract made without authority cannot be enforced, but a different question arises when the contract has been executed, and the corporation has received the benefit of it. In such a case the law interposes an estoppel, and will not permit the validity of the contract to be called in question. (Brown v. City of Atchinson, 39 Kan. 37, 7 Am. St. Rep. 515, 17 P. 472, 473; Moore v. Mayor of New York, 73 N.Y. 238, 245, 29 Am. Rep. 134.) When the corporation has made contracts, valid under the laws of the state at the time they were made, the state cannot unmake them, or impose other or different terms on the corporation to its injury and for the benefit of the other contracting party. (Coast Line R. Co. v. City of Savannah, 30 F. 647 (case of a contract between the company and the city); Chicago v. Sheldon, 9 Wall. 50; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 660, 662-664, 6 S.Ct. 252.) If the contract when made was valid by the constitution and laws of the state, as then expounded by the highest authorities whose duty it was to administer them, no subsequent action by the legislature or the judiciary can impair its obligation. (Havemeyer v. Iowa County, 3 Wall. 294, 303; New Orleans Water Works v. Rivers, 115 U.S. 674, 6 S.Ct. 273; Louisville Gas Co. v. Citizens' Gas. Co., 115 U.S. 683, 6 S.Ct. 265; New Orleans v. Great South Tel. Co., 40 La. Ann. 41, 8 Am. St. Rep. 502, 3 So. 533-535; McCauley v. Brooks, 16 Cal. 30; Fisk v. Jefferson Police Jury, 116 U.S. 134, 6 S.Ct. 329; 2 Dillon on Municipal Corporations, p. 822, sec. 691, p. 828, sec. 697; Columbus Water Co. v. City of Columbus, 46 Kan. 666, 28 P. 1097; 38 Am. & Eng. Corp. Cas. 150-153; County of Ray v. Vansycle, 96 U.S. 675; County of Moultri v. Savings Bank, 92 U.S. 631; County of Schuyler v. Thomas, 98 U.S. 169; Fairfield v. County of Gallatin, 100 U.S. 47; City of Louisiana v. Taylor, 105 U.S. 454; County of Ralls v. Douglass, 105 U.S. 728.)

Selden B. Kingsbury, for Respondent.

Act of 1886, page 32, Idaho Statutes, provides "that territories shall not pass special or local laws granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever." (Idaho Stats., p. 33, sec. 2; Idaho Rev. Stats., secs. 2710-2713; Idaho Const., art. 8, secs. 3, 4; Idaho Const., art. 12; Idaho Const., art. 15, secs. 1, 2; City Charter, Special and Local; Idaho Laws, secs. 289, 299, 300, 309, 342, 358, 377, 379, 381, 394, Cooley's Constitutional Limitations, 194-196, 198, 199, 394-396; Beach on Public Corporations, secs. 88, 553, 620, 622.) The general rule by which courts should be guided in determining whether a nonsuit, when applied for, should be ordered is, "that if the evidence given by the plaintiff would not authorize a jury to find a verdict for him, or, if the court would set it aside if so found, as contrary to the evidence, in such case it is the duty of the court to nonsuit the plaintiff." And this decision was made before California had a statute like our own, which enacts that a judgment on nonsuit may be entered by the court, upon motion of the defendant when, upon the trial, the plaintiff fails to prove a sufficient case for the jury." (Rev. Stats., sec. 4354; 10 Myers' Federal Decisions, p. 832, sec. 2101.) And the court has sustained this doctrine in Lewis v Lewis, ante, p. 645, 33 P. 38. (Jacobson v. Bunker Hill etc. Min. Co., ante, p. 126, 28 P. 396.) There is another reason why the city could not be liable on this alleged contract: it is, because it would be made for the benefit of S. B. Dilly, the then, ever since, and now, city clerk of Bellevue. (Charter, p. 100, sec. 115; 1 Dillon on Municipal Corporations, sec. 444; Case v. Johnson, 91 Ind. 477, 489.) When the mode of exercising the power to contract is specially and plainly prescribed and limited, it must be pursued, or the contract will not bind a corporation. (1 Dillon on Municipal Corporations, sec. 449, note.) "The act of incorporation is to them an enabling act; enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." (1 Beach on Public Corporations, secs. 690-692, 696, 697; also secs. 252, 253, 697, 821; Head v. Providence Ins. Co., 2 Cranch, 127; 1 Dillon on Municipal Corporations, secs. 449, 459, 461; Zottman v. San Francisco, 20 Cal. 97, 103, 109, 81 Am. Dec. 96, and note; McCracken v. City of San Francisco, 16 Cal. 620; Bentley v. County of Clusagi, 25 Minn. 259; Brady v. Mayor etc. of New York, 16 How. Pr. 443, 445; Los Angeles Gas Co. v. Toberman, 61 Cal. 199, 203.) "Ordinance No. 19" was, and is, illegal and void. That the city might have done some of the things attempted by this ordinance no one will question; but it could grant no special privilege; it could grant no such franchise and special privilege to any particular persons. This the territorial legislature could not have done, either when the city got its charter, or when this ordinance was attempted, and if the creator could not, its creature could not. (Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143; U. S. Rev. Stats., sec. 1889; 20 U. S. Stats. at Large, 101 (passed June 8, 1878), c. 168; U. S. Rev. Stats., Gould & Tucker's Notes, 468; Idaho Rev. Stats., 32.) "Where the mode of executing a written contract by a corporation has been prescribed by statute, it cannot be departed from." (Safford v. Wyckoff, 4 Hill, 449.) "A person dealing with a municipal body is bound to see that the provisions of the statute under which it is acting are fully complied with, and, when this is not done, no subsequent act of the municipal officers can make the contract effective." (Smith v. City of Newburg, 77 N.Y. 130; Hunford v. City of Omaha, 4 Neb. 350, 351; Addis v. City of Pittsburg, 85 Pa. St. 379.) The ordinance contract is void because made by and in favor of a city officer. (1 Dillon on Municipal Corporations, sec. 444; Case v....