Jack v. Village of Grangeville

• Decision Date: 19 December 1903
• Citation: 74 P. 969,9 Idaho 291
• Parties: JACK v. VILLAGE OF GRANGEVILLE
• Court: Idaho Supreme Court

74 P. 969

9 Idaho 291

JACK v. VILLAGE OF GRANGEVILLE

Supreme Court of Idaho

December 19, 1903

TOWNS AND VILLAGES-WATER SUPPLY-WATER CORPORATIONS-FREE WATER-PERSONS-ESTABLISHMENT OF WATERWORKS BY INDIVIDUALS-RATES TO BE CHARGED FOR WATER-THIRTY YEAR CONTRACTS-CONSTITUTIONALITY OF ACT.

1. Sections 2710, 2711 and 2712, Revised Statutes, apply only to corporations and have no application to individuals or private persons.

2. Subdivision 12, section 2230, Revised Statutes, was not repealed by an act entitled "An act to provide for the organization, government and powers of cities and villages," approved March 4, 1893, Session Laws of 1893 page 97, as it is not in conflict therewith.

3. Held, that the ordinances and contract under consideration are not in conflict with the Laws of 1887, or the act of 1893.

4. The manner in which rates are to be charged by a water company corporation for the use of water is fixed by the provisions of section 2711, Revised Statutes, but the legislature has failed to provide by law, as required by section 6, article 15, state constitution, the manner in which reasonable maximum rates may be established for water furnished a town or village by an individual.

5. In the enactment of the laws concerning cities and towns and villages the legislature has provided that such municipal corporations may erect waterworks or purchase water for fire purposes and other public necessities.

6. Where a city or town is given power to establish a water system of its own, it may contract with private individuals or persons for the establishment of a water system and purchase water from them.

7. Under section 6, article 15, state constitution, it is the duty of the legislature to provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold for or rented for a useful or beneficial purpose, and until that is done the owner and user may make such contracts therefor as may to them seem just and reasonable.

8. Under the laws of this state, such a contract as that under consideration may be made to continue for thirty years except that rates may be established from time to time as the legislature may by law provide.

9. The question of the constitutionality of a legislative act will not be decided unless it is necessary to a decision of the cause in which it is raised.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable Edgar C Steele, Judge.

Action to recover for water furnished the village of Grangeville on contract. Judgment for respondent. Affirmed.

Affirmed and costs awarded to the respondent.

Fogg & Nugent and R. F. Fulton, for Appellant.

As we view the case presented by the record herein the consideration of broad fundamental questions of law regardless of a minute examination of the errors assigned, will lead to a conclusion adverse to the validity of the plaintiff's franchise and contract, and thereby relieve the court of the necessity of further or detailed examination of the record. Plaintiff's pleadings as well as the court's findings and decision would seem to make the constitutionality of the law of 1893 the paramount issue. The plaintiff contends and the learned district judge concludes that because of the unconstitutionality of the Law of 1893, the village must be deemed to have been incorporated under the Law of 1887, and that it is governed by the provisions of the Revised Statutes of 1887 applicable to towns and villages. Counsel for the plaintiff upon the trial cited the following provisions of the Law of 1887 as sustaining the plaintiff's contract--subdivision 12, section 2230: "The board of trustees have power . . . . to purchase water for fire protection from others maintaining waterworks in such town or village in such manner as the trustees of said town or village may determine." Contract ultra vires even under Law of 1887. The attention of the court is called particularly to the language in the subdivision cited by counsel, "to purchase water for fire purposes from others maintaining waterworks." This does not authorize a contract with others to establish waterworks, but it would seem to contemplate merely the purchase of water from others having plants already established. Subdivisions 32 and 33 of said section 2230, Revised Statutes of 1887, expressly grant power to the municipality, and authorize the board of trustees, by proper ordinances, to acquire water rights and to erect and maintain waterworks for the purpose of furnishing water to the inhabitants of such town or village and for the extinguishment of fires. These subdivisions, and not subdivision 12, provide the means and grant the power to make adequate, permanent arrangements for the securing of water for fire purposes. It would seem very apparent even under the laws of 1887 to be the purpose of the legislature to guard the municipalities within the territory from just such monopolies as in effect would be created by the thirty year contract upon which plaintiff's claim herein is based, by providing ample means for municipal ownership and control--a purpose and policy that has been incorporated into the organic laws of the state by the framers of the constitution and consistently exemplified by all subsequent legislation bearing upon the subject. Sections 2710 and 2712, Revised Statutes of 1887, concerning the organization of water companies is contemporaneous legislation embodied in and adopted in the Revised Laws of 1887, and further emphasizes the policy of the territory at that time to withhold from municipalities the authority to burden the inhabitants with such contracts as the one at issue in this case. We will now proceed to the consideration of the various questions affecting the validity of the contract upon which plaintiff bases his demand in this action. "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: 1. Those granted in express words; 2. Those necessarily or fairly implied in or incident to the powers expressly granted; 3. Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic-act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability not authorized thereby or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." (1 Dillon on Municipal Corporations, 4th ed., sec. 89; Saganaw Gas Light Co. v. City of Saganaw, 28 F. 534; Ottawa v. Carey, 108 U.S. 110, 2 S.Ct. 361, 27 L.Ed. 674.) Bmake the contract under consideration is nowhere granted in express words. Counsel for plaintiff contended upon trial: 1. That the power to make this contract is necessarily implied in or incident to the powers expressly granted. 2. That the power to make the contract is essential to the declared object and purpose of the corporation. None of the cases we have examined go to the extent that such authority would be implied if contrary to the manifest legislative intent. The case of Craw-fordsville v. Braden, 130 Ind. 149, 30 Am. St. Rep. 214, 28 N.E. 851, 14 L. R. A. 268, cited by plaintiff's counsel, states this principle correctly. The legislature since the adoption of the constitution has by various acts provided full and adequate means providing for the control of water to be used for irrigating purposes, but no legislation has been enacted since statehood providing for the control of water for the purpose of distribution and sale to municipalities and to the inhabitants thereof; nor has there been any subsequent legislation affecting the provisions contained in the water corporation law. (Rev. Stats., secs. 2710-2713.) Nor would it seem that any change in such law is necessary. Our supreme court in the case of Boise City v. Artesian Hot & Cold Water Co., 4 Idaho 351, 39 P. 562, has decided, in effect, that this is just such a statute as was contemplated and authorized by said section 2, article 15 of the constitution, and further that it is not repugnant to section 6, article 15 of the constitution, which commands the legislature to provide by law the manner by which reasonable rates shall be established. The defendant contended in the trial court that the plaintiff's contract was invalid and that he could not recover from the defendant village or maintain this action for the reason, among other things, that he had no franchise as would authorize him to engage in the business of selling water to the municipality or to the inhabitants thereof, and particularly that no such franchise under our statute could be granted except to a quasi public corporation organized for such purpose. (Const., art. 15, sec. 2; 8 Ency. of Law, 1st ed., 585, 586; California v. Central P. Ry. Co., 127 U.S. 1, 8 S.Ct. 1073, 32 L.Ed. 157; Allen v. Clausen, 114 Wis. 244, 90 N.W. 181.) On the question of whether the contract creates a monopoly, and if it does whether such contract is prohibited by public policy, see Thrift v. Elizabeth City, 122 N.C. 31, 30 S.E. 349, 44 L. R. A. 427; City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143; Freeport Water Co. v. Freeport, 180 U.S. 587, 21 S.Ct. 493, 496, 498, 45 L.Ed. 679; Davenport v. Kleinschmidt, 6 Mont. 502, 13 P. 249. The contract in question is clearly within the prohibition of the constitutional provisions restricting the contracting of indebtedness, that debts payable in the future, upon the happening of some future event, as the...