Boise City v. Artesian Hot & Cold Water Co.

• Decision Date: 23 February 1895
• Citation: 39 P. 562,4 Idaho 351
• Parties: BOISE CITY v. ARTESIAN HOT AND COLD WATER COMPANY
• Court: Idaho Supreme Court

39 P. 562

4 Idaho 351

BOISE CITY v. ARTESIAN HOT AND COLD WATER COMPANY

Supreme Court of Idaho

February 23, 1895

PLEADING-WATER COMPANY-SECTIONS 2711 AND 2712 OF THE REVISED STATUTES-FREE WATER FOR FIRE PURPOSES.-A complaint alleging the organization and operation of a water company under sections 2711 and 2712 of the Revised Statutes of Idaho and praying for decree of court compelling said company to furnish water for fire purposes free to the city of its location.

ORDINANCE OR CONTRACT WITH COMPANY MUST BE SET FORTH.-Must set forth substantially the ordinance or contract with such city permitting such company to furnish water and regulating the manner thereof, if any such ordinance or contract is in existence.

SECTION REQUIRING WATER COMPANY TO FURNISH WATER FREE CONSTITUTIONAL.-The clause of section 2711 requiring a water company receiving and accepting the privileges conferred by the statute, to furnish the city or town water for fire purposes and other great necesities free, held, to be constitutional.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

S. L Tipton and W. E. Borah, for Appellant.

Under section 2711 the company was bound to furnish water to the plaintiff free for "fire and other great necessities." This question and every phase of it has been clearly and distinctly settled by the supreme court of California. (Idaho Rev. Stats., sec. 2711; Spring Valley Water Works v. San Francisco, 52 Cal. 111; San Diego Water Co. v. San Diego, 59 Cal. 517; San Francisco v. Spring Valley Water Works, 48 Cal. 493.) A constitutional provision may be self-executing if it supplies a sufficient rule by means of which the right may be enjoyed. (Cooley's Constitutional Limitations, 99, 100; Ewing v. Oroville Min. Co., 56 Cal. 649.) Provisions of the constitution, not self-executing, lie dormant until there is legislation, and do not annul prior laws. (Cooley's Constitutional Limitations, 98, 100; Supervisors of Doddridge v. Stout, 9 W.Va. 703; Williams v. Mayor etc. of Detroit, 2 Mich. 560; Coatsville Gas. Co. v County of Chester, 97 Pa. St. 476; Cahoon v Commonwealth, 20 Gratt. 733.)

Johnson & Johnson and George Ainslie, for Respondent.

The contention of appellant is that respondent is bound by section 2711 of the Revised Statutes to furnish water to the city for fire and other great necessities free of charge. The contention of respondent is that the complaint does not show that it is so bound. The complaint does not show that respondent is organized under or is authorized by chapter 5 of title 4 of the Civil Code to supply the city with water. Section 2710 provides that: "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." The complaint does not allege the passage of any such ordinance, or the terms of any such contract, or that any such contract has been entered into between the city and respondent. "The law supposes that every suitor will state his case as strongly as the facts warrant; and hence the rule that a pleading is taken most strongly against the party making it." (Green v. Covillaud, 10 Cal. 317, 70 Am. Dec. 725; De Castro v. Clark, 29 Cal. 16; Callahan v. Lochran, 102 Cal. 417.) "It is a cardinal rule in equity, as in all other pleading, that the allegata and probata must agree, and that averments material to the case omitted from the pleading cannot be supplied by the evidence." (Green v. Covillaud, 10 Cal. 317, 70 Am. Dec. 725; Murdock v. Clarke, 59 Cal. 693.) The constitution declares that "the right to collect rates or compensation for the use of water supplied to any county, city or town, or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of, and in the manner prescribed by law"--that is, by statute law, thereby contemplating the enacting by the legislature, where they do not exist, of all laws necessary to give effect to its commands, and that none should be passed in contravention of its provisions. (Idaho Const., art. 15, sec. 2; People v. Stephens, 62 Cal. 209-234 et seq.) The constitution of Idaho declares that "the legislature shall provide by the 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." (Idaho Const., art. 15, sec. 6.) The needful laws did exist under which such rates of charges or compensation for water furnished could be fixed, and established section 2711 of the Revised Statutes of Idaho. And under the rule laid down by Judge Cooley the whole of section 2711 is operative, and not repugnant to the constitution, except that portion, commencing in line 5 thereof, and ending in line 7, comprising the following: "and must furnish water to the extent of their means in case of fire or other great necessity free of charge." That portion of said section is perfectly distinct and separable, does not depend on the other portion of the section, does not operate together with the other portions for the same purpose; and the balance of the section may stand even though the words, or portion mentioned fall, as being in conflict with, or repugant to the constitution. (Cooley's Constitutional Limitations, 6th ed., 209, and following; Comstock v. City of Syracuse, 129 N.Y. 643, 27 N.E. 1081, 29 N.E. 289, 294.)

Plaintiff alleges: Corporate existence of both plaintiff and defendant. That defendant became incorporated on or about March 27, 1891, and a short time thereafter commenced doing business. That the purpose for which said corporation was formed was to furnish water to the inhabitants of Boise City for domestic and family use, and to supply plaintiff with water for municipal purposes, as for fire and sanitary uses. That the defendant has laid its water mains and pipes through the streets of Boise City, and is now using and operating said mains and pipes for conducting and furnishing water for pay to the inhabitants of Boise City for domestic and family uses. That plaintiff, for protection against fire, has placed pipes and fire hydrants, to the number of fifty-five, in convenient places throughout the city, and connected the same to the water mains by means of pipes so that water may be secured through the same for the use of the city in case of fire and other great necessities. That defendant has, by means of its connection with the pipes, supplied and is supplying, through its water mains and pipes, water to said hydrants for fire purposes and other great necessities, and that the plaintiff has paid the defendant for said water the sum of $ 1,375 per annum. Plaintiff now refuses to pay the defendant any further sum for water for fire purposes and other great necessities, and alleges that plaintiff is entitled to said water free of charge. That, by reason of the refusal on the part of the plaintiff to pay said defendant for said water furnished for fire purposes, the defendant has threatened and is threatening to immediately shut off said supply, and threatens, if not paid, to disconnect the pipes in the fire hydrants of the plaintiff; and, if permitted so to do, the defendant will leave the plaintiff without adequate means to protect the said city in case of fire; and if said threats be carried into execution it will cause irreparable injury and damage to plaintiff. That plaintiff is without remedy at law, and prays that the defendant and its agents be restrained from interfering in any way with the pipes and connections of said hydrants with the water mains and pipes of the defendant, and that the defendant be restrained from cutting off or in any way interfering with the water supply furnished by defendant to the plaintiff for said fire purposes; and that, pending this action, the said defendant be so restrained; and for other and further relief, etc. Defendant demurred to the complaint, stating, as cause, that complaint does not state facts sufficient to constitute a cause of action. Demurrer was sustained by the district court, plaintiff given leave to amend, but declined to do so, and from the order sustaining demurrer and entering default appeals to this court.

MORGAN, C. J. Huston, J., concurs. SULLIVAN, J., dissent.

OPINION

MORGAN, C. J.

(After Stating the Facts.)--The date given as the time when this corporation was organized and commenced business was at a time when the statute (Idaho Rev. Stats., secs. 2710-2712) was in force, and therefore the said corporation is subject to the provisions thereof. Section 2712 provides that any corporation created under the provisions of that title, for the purposes named, subject to the reasonable direction of the 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 or any city as may be necessary for laying pipes for conducting water into such town or city, or through or into any part thereof. Section 2711 provides that all corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof for family use, so long as the supply permits, at reasonable rates, and without distinction of persons, 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. This section also provides a means of fixing the rates to be charged by the corporation for water furnished the inhabitants, which is that the city shall appoint two commissioners, two to be selected by the water company, and, in case the four cannot agree, a fifth shall...