City of Memphis v. Memphis Water Co.

• Decision Date: 30 April 1871
• Citation: City of Memphis v. Memphis Water Co., 52 Tenn. 495 (Tenn. 1871)
• Parties: City of Memphis v. The Memphis Water Company.
• Court: Tennessee Supreme Court

52 Tenn. 495

City of Memphis

v.The Memphis Water Company.

Supreme Court of Tennessee.

April Term, 1871.

FROM SHELBY.

Agreed case from the First Circuit of Shelby County.C. W. HEISKELL, J.

Wm. M. Randolph, for city of Memphis, insisted: The questions involved in this case arise upon s. 4 of c. 67 of the Acts of 1869-70, which is as follows:

An act to incorporate the Memphis Water Company.

Sec. 4.Be it further enacted, That said company shall be, and it is hereby, authorized to establish and construct water works in and adjacent to the city of Memphis in this State, and to supply the said city and the inhabitants thereof with a plentiful supply of water; and, for this purpose, they are hereby authorized, empowered, and invested with the exclusive privilege to lay down pipes and to extend aqueducts and conductors through all or any of the streets, lanes, and alleys of the city of Memphis, and supply to the inhabitants of said city water by public works.And for the purpose of laying down such pipes, aqueducts, and conductors may take up the pavements or sidewalks upon such streets, provided that said pavements and sidewalks shall be taken up in such manner as to give the least inconvenience to the inhabitants of said city, and that the same shall be replaced with all convenient speed by and at the expense of said company.The privilege hereby granted to be exclusive for thirty years only, after which it is not to be exclusive.

This act was passed on the 28th day of February, 1870.

I claim, first, that this section is void, so far as it undertakes to confer upon the defendant the exclusive privilege to lay down pipes, and to extend aqueducts and conductors through all or any of the streets, lanes, and alleys of the city of Memphis, and to supply the inhabitants of the city with water by public works, because it violates c. 22 of art. 1(the declaration of rights) of the Constitution, which is as follows: “That perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed.”

Citing and commenting on the following authorities: Hallam's Constitutional History of England, c. 5, pp. 153-4, (Harper'sEd., 1862); 1 Russell on Crimes, 173;4 Blackstone'sCom., 159;3 Kent'sCom., 458, 459; per Totten, J., in Hazen v. Union Bank of Tennessee, 1 Sneed R., 115, 119, 120;seeTuckahoe Canal Co. v. Tuckahoe RailroadCo., 11 Leigh's R., 425;Enfield Toll Bridge Co., v. Hartford &N. H. R. Co., 17 Connect., 454;Blair v. Carmichael, 2 Yerg. R., 306-9;Memphis v. Overton, 3 Yerg. R., 387-92;Allen v. Farnsworth, 5 Yerg., 189, 191;Nashville Bridge Co. v. Shelby, 10 Yerg. R., 281;Proprietors of Bridges v. Hoboken LandCo., 2Beasley'sCh. R., 535, etc.; 1 Sneed R., 120, 121;Reed v. Ingham, 3 Ellis & Blackburn, Q. B., 889;Memphis Gas Light Co. v. County Commissioners, 6 Col., 310;Angel & Ames on Corporations, ss. 31, 32, 33, 34, 35.

But suppose I abandon, for the purpose of the argument, the position that the grant to the Water Company is a monopoly, then I insist that the grant of the exclusive privileges is a violation of s. 7, art. 11, which declares:

“The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land, nor to pass any law granting to any individual, or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law, extended to any member of the community who may be able to bring himself within the provisions of such law: Provided always, the Legislature shall have the power to grant such charters of incorporation as they may deem expedient for the public good.”

It can not be doubted that the act chartering the Memphis Water Company does attempt to grant to it “rights, privileges, immunities and exemptions,” which are not “by the same law,” or by any other law, “extended to any other member of the community,” who may have been able, or may be able, “to bring himself within the provisions of such law.”

It is useless to argue this proposition, for the claim by the defendant to the exclusive privileges that its charter purports to grant, admits its correctness: Angell & Ames on Corporations, ss. 1-10, 110-113; Judge Reese, in Budd v. The State, 3 Hum., 490, 491.

There is another mode of presenting this subject that deserves consideration.

The power to create corporations was conferred upon the Legislature, to be exercised, as the Constitution declares “in such cases as it may deem expedient for the public good.”

The discretion vested in the Legislature by the Constitution it was intended should be exercised in each particular case in which the Legislature might be called upon to create a corporation.And the discretion it was contemplated, would extend as well to the powers and privileges to be granted to corporations, as to the propriety or impropriety of making a grant of a charter.

In other language, the creating of a corporation, and the granting of rights, privileges, and immunities to it, is a legislative power, belonging to every Legislature, and each Legislature possesses it as fully as any of its predecessors.But to no greater extent than its successors.

Now every act of the Legislature which undertakes to grant “a right, privilege or exemption” to a corporation, to be exercised or enjoyed by it, to the exclusion of every other corporation or person, is an attempt to place the ““right, privilege, immunity or exemption,” which is granted, beyond the control of the Legislature.And to the extent that it does operate to place it beyond the control of the Legislature, it is an abridgment or surrender of legislative power.Such an act is an attempt of one Legislature to tie the hands of the Legislatures that come after it, and which, but for the attempted exclusive grant, would unquestionably possess the very same powers that it possesses.It is saying to subsequent Legislatures, while you have, by the Constitution, the right to create such corporations “as you may deem expedient for the public good,” and to confer such rights, privileges,, etc., upon them as you may choose, you shall not deem the grant of any “right, privilege, immunity, or exemption,” which we have declared shall be confined to a particular corporation, to be “for the public good.”In such cases, you shall make no grants.

Such a principle of legislation would lead to consequences of the most baneful character.Soon legislative power or sovereign power, in respect to the creation of corporations, would be bartered away, and the State could legislate upon nothing that it might be to the interest of any corporation to own or control exclusively.The principle would put the Legislature above the Constitution, by allowing it to divest itself of the legislative authority, with which the Constitution has vested it.

Again, I insist that there is nothing in the charter of the Water Company that takes from the city of Memphis its right to erect and maintain water works for the supply of itself and its inhabitants with water, as given it by the city charter.

As we have seen, the charter was reduced into one act, at the same session of the Legislature which charterd the Water Company, and that act expressly conferred upon the city the power to construct water works.

This duty was imposed (if I may use the expression in reference to a discretionary power) to be exercised for the public benefit.It was not intended it should be exclusively for the emolument of the city.

It is true it was expected to be a source of profit.But, it was principally in view of the public advantages to result from a plentiful supply of pure water to the inhabitants of the city, that the provision for water works was embodied in the charter.The improved facilities for the convenient and cheap supply of water for the extinguishment of fires, and for other purposes, was an important consideration also in authorizing the city to build water works.In other large cities, without exception almost, water works are owned and maintained by the municipality.If originally built by private persons, or corporations, eventually they have almost invariably passed to the city in some way.And universal experience teaches that the agents of the public are the only proper persons to control them.

It ought not, therefore, without the plainest necessity, to be held that the Legislature intended to take from the city of Memphis the prerogative or privilege of furnishing water for itself, and for its inhabitants.There is no express repeal of the city charter, or any part of it, by the act chartering the Water Company.

The 12th section, which is the only one of the charter of the Water Company that contains a repealing clause, merely repeals “all acts in conflict with”the act chartering the Water Company.

I can not see that there is any necessary conflict between the power given the city in reference to water works, and the charter of the Water Company.

It is true there may be an apparent conflict.But the rule is this: “Private statutes, made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication:” Parson's Ch. J., in Cooley v. Williams, 4 Mass. R., 140.See also, as illustrating the same rule: Dyer v. Tuscaloosa BridgeCo., 2Porters, Ala., 296; Sprague v. Birdsall, 2 Cowen, 419;Cayuga Bridge Co. v. Magee, 2 Paige, 116;6 Wendell, 85; The People v. Lambier, 5 Denio R., 9;Cooley's Con. Lim., pp. 393, 396.

At page 393Judge Cooley says:

“The State, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights.Special privileges are obnoxious, and discriminations against persons, or classes, are still more so, and as a rule of construction, are always...