Brummitt v. Ogden Waterworks Co.

• Decision Date: 02 February 1908
• Docket Number: 1885
• Citation: 93 P. 828,33 Utah 285
• Court: Utah Supreme Court
• Parties: BRUMMITT et al. v. OGDEN WATERWORKS CO. et al

93 P. 828

33 Utah 285

BRUMMITT et al. v. OGDEN WATERWORKS CO. et al

No. 1885

Supreme Court of Utah

February 2, 1908

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by James J. Brummitt and others against the Ogden Waterworks Company and another. From a judgment for defendants plaintiffs appeal.

AFFIRMED.

J. D Skeen, James N. Kimball, Dey & Hoppaugh, and R. S. Varian for appellants.

APPELLANT'S POINTS.

The covenants on the part of the waterworks company being given in consideration of valuable privileges conferred, became the law applicable in the particular case and are just as binding as if they were enacted in the statutes or the constitution of this state. (Water Co. v. San Diego, 59 Cal. 517; Flynn v. Water Co. [Minn.], 77 N.W. 38; State v Railroad [Minn.], 81 N.W. 200; State, etc., v. Railroad [Minn.], 83 N.W. 32; Poppleton v. Moores [Neb.], 88 N.W. 128; State v. Gates, 2 L. R. N. S. 152.)

The law is settled that a city council cannot delegate authority vested in them by the laws of the state, much less delegate the authority that some council in the future might exercise to an unnamed and uncontrolled committee. (Eureka City v. Wilson, 15 Utah 73; Birdsall v. Clark, 73 N.Y. 73, and note; 29 Am. Rep. 105 and note; Davis v. King, 50 Am. St. 118; Hyde v. Joyes [N.Y.], 96 Am. Dec. 311; Lyon v. Jerome [N.Y.], 37 Am. Dec. 271; Stockton v. Crainer, 45 Cal. 643.)

Courts uniformly recognize the authority of taxpayers to restrain municipal corporations from transcending their lawful powers, and a court will even enjoin the mere entering into of a void contract. (First Smith on Municipal Corporations, sec. 667 and note 79, containing numerous citations; Handy v. New Orleans,-- So. 593; Crompton v. Zabriskie, 191 U.S. 601; Valparaiso v. Gardner [Ind.], 49 Am. Rep. 416; State v. Gates [Mo.], 2 L. R. A., N. S. 152; Poppleton v. Moores [Neb.], 88 N.W. 129, in point.)

This ordinance is a contract of a quasi-public character, but so far as the contractual relationship is concerned, it is governed by the same rules as contracts between private individuals. Construed under the rules of construction in such cases it would certainly be held void. The court is not constituted for the purpose of making contracts for individuals and no construction can aid a contract that is void. (State v. Gates [Mo.], 2 L. R. A., N. S. 152; Dartmouth College v. Woodward, 4 Wheaton 518; St. Louis v. Telegraph Co., 248 U.S. 92; 1 Smith, Municipal Corporations, sec. 532, note 252; New Orleans v. Great South Tel. Co. [La.], 3 So. 533.)

Van Cott, Allison & Riter, and Howat & Macmillan for respondent.

RESPONDENT'S POINTS.

Furnishing water by a city to its inhabitants is not a governmental function nor a municipal duty. It is the exercise of a business power and function of the municipality. (Ogden City v. Waterworks Co., 28 Utah 41; Western, etc., Society v. Philadelphia, 31 Pa. St. 183; Insurance Co. v. Philadelphia, 88 Pa. St. 394; Bailey v. City, etc. [Pa.], 39 At. 494; Wagner v. Rock Island, 146 Ill. 153; People ex rel. v. Common Council, 15 Am. Rep. 209; Water Co. v. City, 147 Fed 1.)

But if it were true that the city council exceeded its authority in leasing the water right by the ordinance in question, still the execution of the lease in excess of authority does not in any way invalidate the ordinance. (Hitchcock v. Galveston, 96 U.S. 341; Field v. Clark, 143 U.S. 649, 694-697, 700; Bank v. City, 76 F. 271, 34 L. R. A. 518, 524; McPherson v. Foster, 43 Iowa 57; Water Co. v. City [Iowa], 91 N.W. 1081; Cooley, Const. Lim. [5th Ed.], 211.)

The general principle is stated in Pollock's Principles of Contracts, p. 348, as follows: "A lawful promise made for a lawful consideration is not invalid by reason only of an unlawful promise being made at the same time and for the same consideration." The learned author proceeds, quoting from the Bank v. Breillat, 6 Moo. P. C. 152, 201, "accordingly, from Pigot's case (11 Co. Rep. 27-b) to the latest authorities it has always been held that when there are contained in the same instrument distinct engagements by which a party binds himself to do certain acts, some of which are legal and some illegal at common law, the performance of those which are legal may be enforced, though the performance of those which are illegal cannot." The same result is reached where the illegality is created by statute, provided always that the illegal can be severed from the legal; per Willes, J., in Pickering v. Railroad Co., L. R. 3 C. P., 250. The rule is well illustrated in Price v. Green, 16 M. & W. 346. (Railroad v. Pullman Car Co., 139 U.S. 79, 91; Telegraph Co. v. Railroad, 11 F. 1, 4, and cases cited in note; Horse Co. v. Transit Co., 24 F. 306; Oregon Steam Nav. Co. v. Winson, 20 Wall, 64, 71; Bank v. Arkansas City, 76 F. 280.)

Whether it was an act of wisdom to make the new contract and change the terms of the Bothwell contract was entirely within the power and discretion of the city council, and cannot in the absence of fraud, be inquired into by the court. (1 Dillon, Mun. Cor. [4th Ed.], secs. 50, 94; Goodrich v. Chicago, 20 Ill. 445; St. Louis v. Boffington, 19 Mo. 15; Kelly v. Milwaukee, 18 Wis. 83; Gas Co. v. Des Moines, 44 Iowa 505, 509; Janeway v. Duluth [Minn.], 68 N.W. 24; Moore v. Walla Walla, 60 F. 961.)

With respect to contracts that it is authorized to make, a municipal corporation has the same rights and remedies and is bound thereby and may be sued thereon in the same manner as individuals. (Ogden City v. Waterworks Co., supra; Dillon, Mun. Cor. [4th Ed.] sec. 472; Safety, etc., Co. v. Baltimore, 66 F. 140.)

As between parties standing on the same footing, courts do not inquire whether they contracted wisely or foolishly. Their business is to see that contracts are performed as made by the parties. (Hansen v. Yturria [Tex.], 48 S.W. 795, 797.)

The court will not restrain, control or coerce the action of a municipal corporation on the ground that it is merely unwise, extravagant, erroneous or a mistake of judgment. (Wells v. Atlanta, 43 Ga. 67; Torrent v. Muskegon, 47 Mich. 115, 41 Am. Rep. 715.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action was commenced December 12, 1906, by the plaintiffs, as tax payers and water users, for equitable relief by injunction. In 1889 the defendant Ogden City entered into a contract with one J. R. Bothwell whereby he agreed to construct and operate a system of waterworks to supply Ogden City and its inhabitants with water for all purposes. Ogden City, on its part, granted Bothwell the right to lay the pipes to be used in the water system in the streets, alleys and public places of the city. The contract was for no definite time, and in connection therewith the city leased to said Bothwell its water right amounting to 0.98 of a second foot of water "for the full time that said Bothwell or assigns furnishes water through its system" of waterworks. The defendant waterworks company (hereinafter called "company") succeeded to all the rights of Bothwell under said contract, and for a long time prior to and at the commencement of this action owned and operated the system of waterworks constructed by Bothwell as aforesaid. A further history leading up to the making of the contract and the conditions under which it was entered into and executed are all set forth in the case of Ogden City v. Waterworks & Irrigation Co., 28 Utah 25, 76 P. 1069, to which we refer for a more complete statement. We shall only refer to such parts here as are deemed essential to an understanding of the points passed upon in this opinion. In the Bothwell contract the rates agreed upon were as follows: For the first one hundred hydrants, $ 75 a year each; for any number above one hundred, $ 60 a year each; for "city buildings, public schools, and grounds, public fountains and water troughs, parks, city squares, and lawns, street sprinkling and all other municipal uses of water, free." The rates were to be reduced ten per cent. after three years, and another ten per cent. after six years. Extensions were to be made as fast as the consumption of water by users should produce a revenue of eight per cent. on the cost of extensions. The city also reserved the option to purchase the system of waterworks by paying therefor the original cost of construction, to be paid for either in cash or in 6 per cent. city bonds. This option did not include a certain conduit which was part of and connected with the waterworks system. In addition to the waterworks the city was also to purchase the water rights owned by Bothwell, the value of which was to be ascertained by appraisers chosen by the parties. Before the city could exercise its option to purchase it was required to pay Bothwell the sum of $ 150,000, payment thereof to be made in three annual installments, which was to be for the perpetual right to use the conduit above mentioned. Much litigation ensued, a part of which culminated in the case referred to in 28 Utah, supra. In 1906 it seems a full adjustment and settlement of all differences between the parties was had, and in pursuance of which, the terms and conditions of the Bothwell contract, under which the company was operating the waterworks system, were modified in certain respects by an ordinance passed by the city on September 24, 1906, and duly accepted by the company on October 1st of the same year. It is this ordinance that is called in question in this proceeding by the water users and tax payers. The purpose of the action is to declare the ordinance illegal and void, and to enjoin its further enforcement by the city and the company. In the ordinance the rates for fire hydrants were fixed at $ 35 each. The city was also to...