Ogden City v. Bear Lake & River Waterworks & Irrigation Co.

• Citation: 76 P. 1069,28 Utah 25
• Decision Date: 28 May 1904
• Docket Number: 1501
• Parties: OGDEN CITY, a Municipal Corporation, Appellant, v. THE BEAR LAKE & RIVER WATERWORKS & IRRIGATION COMPANY, a Corporation, THE BEAR RIVER IRRIGATION & OGDEN WATERWORKS COMPANY, a Corporation, SAMUEL M. JARVIS and ROLAND R. CONKLIN, Respondents
• Court: Supreme Court of Utah

76 P. 1069

28 Utah 25

OGDEN CITY, a Municipal Corporation, Appellant, v. THE BEAR LAKE & RIVER WATERWORKS & IRRIGATION COMPANY, a Corporation, THE BEAR RIVER IRRIGATION & OGDEN WATERWORKS COMPANY, a Corporation, SAMUEL M. JARVIS and ROLAND R. CONKLIN, Respondents

No. 1501

Supreme Court of Utah

May 28, 1904

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

The facts are stated by the court. From a judgment in favor of the defendants, the plaintiff appealed.

AFFIRMED.

John E Bagley, Esq., and John D. Murphy, Esq., for appellant.

Neither the city nor the taxpayers are estopped from contesting the validity of the proceedings if they act within a reasonable time. 2 Beach, Pub. Cor., sec. 1327; State v. Atlantic City, 9 A. 759; 15 A. & E. Enc. of Law, 1100; Seeger v. Mueller, 24 N.E. 515. Estoppel does not apply to the illegal acts of municipal corporations or acts done in violation of law. 1 Beach 217.

Municipal corporations can only be bound by contracts authorized by ordinance duly passed. Borough of Milford v. Milford Water Co., 17 A. 186, 124 Pa. 610; 2 Beach on P. C sec. 1328; Newman v. City of Emporia, 32 Kan. 456, 4 P. 818; Hunt v. Lambertville, 45 N. J. Law 281; State v. Bayonne, 6 Vroom 335; State v. Hoboken, 6 Vroom 205; 17 A. and E. Enc. of Law, 237, 238; McCoy v. Bryant, 53 Cal. 249, 251; Town of Durango v. Pennington, 8 Colo. 257, 7 P. 15; Pettis v. Johnson, 56 Ind. 136; City of Central v. Sears, 2 Colo. 589; Smith v. Com., etc., 41 Pa. 335.

And contracts not so authorized are not ratified by payments for water made by councils not interested in the company. 2 Beach on P. C., sec. 1328; Borough of Milford v. Milford Water Co., 17 A. 186, 124 Pa. 610; Town of Durango v. Pennington, 6 Colo. 257, 7 P. 15; San Diego Water Co. v. City of San Diego, 59 Cal. 592; McBrien v. Grand Rapids, 56 Mich. 95.

Not only the courts, but individuals, are bound to know the law, and cannot be received to plead ignorance of it. The holder of the bonds in question can claim no indulgence on that score, and can take no advantage from the allegation that he is a bona fide purchaser without notice. South Ottawa v. Perkins, 94 U.S. 260; Boone on Corp., sec. 104; Weisner v. Village of Douglass, 64 N.Y. 91; McPherson v. Foster, 43 Iowa 48; Seeger v. Mueller et al., (Ill.) 24 N.E. 515.

Where council can only act, originally, by ordinance, it can only ratify by ordinance. Cross v. Morristown, 18 N.J. Eq. 305; 15 A. and E. Enc. of Law, p. 1104; 1 Beach on Pub. Corp., sec 251 and n.: McCracken v. San Francisco, 16 Cal. 519; Pimental v. San Francisco, 21 Cal. 351; Town of Durango v. Pennington, 8 Colo. 257, 7 P. 15, 17; Brown v. Mayor, etc., of N.Y., 63 N.Y. 239; People v. Swift, 31 Cal. 26; New Orleans v. Clark, 95 U.S. 644; McCoy v. Bryant, 53 Cal. 249, 251.

The reference to the "contract" and the subsequent resolution to authorize the mayor to execute the engrossed copy did not validate it. South Ottawa v. Perkins, 94 U.S. 260; McCracken v. San Francisco, 16 Cal. 619.

The contract to lease the water or lease itself (if such it was) was beyond the scope of the authority of the city and was therefore void ab initio, and could not afterwards be given life. 1 Beach on P. C., 248 and n. 3; San Diego Water Co. v. City of San Diego, 59 Cal. 521, 522.

All persons are bound to take notice of the powers and authority which the law confers upon the city and its officers, and are chargeable therewith. 1 Dillon on Mun. Corp., p. 518 and n., 530 and notes; Lewis v. City of Shreeveport, 208 U.S. 202; 15 Am. and Eng. Enc. of Law, p. 1100; 2 S.C. 634; Parr v. Prest, etc., of Green Bush, 72 N.Y. 472; Seeger v. Mueller et al., (Ill.) 24 N.E. 515; McCoy v. Bryant, 52 Cal. 249, 251; 68 N.Y. 23; 1 Beach Pub. Corp., sec. 252, 253, and notes.

Andrew Howat, Esq., and E. B. Critchlow, Esq., for respondents.

Counsel for appellant cite authorities which they claim support their contention that the contract was not legally adopted by the city council, because it was adopted by resolution and not by ordinance. We think that the authorities are uniform that where the business on hand is not of a legislative nature, but pertains to the making of a contract relating to the business of the municipality and the statute does not in express terms require the adoption of the contract to be by ordinance, it may be by resolution. Our statute does not require that the business matters of this nature shall be adopted by ordinance, and therefore the general rule that a resolution is a proper and sufficient manner of adopting a contract applies. This very question was raised by Ogden City in the case of Weaver v. Ogden City, and the Circuit Court of the United States for the District of Utah held that the statutes of Utah did not require the contract to be adopted by ordinance and that the contract was properly and legally adopted by resolution. On appeal to the Circuit Court of Appeals, that court affirmed the judgment of the court below and held that the contract was properly and legally adopted by resolution. Ogden City v. Weaver, 108 F. 564, and cases cited.

Furnishing water by a city to its inhabitants is neither a governmental function nor a municipal duty. Western etc. Society v. Philadelphia, 31 Pa. 175, 183; Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393, 394; Bailey v. City, etc. (Pa.), 39 At. 494; Wagner v. City of Rock Island, 146 Ill. 139, 153; People ex rel. v. Common Council, 15 Am. 208, 209.

A municipal corporation can exercise the following powers: 1st. Those granted in express words; 2nd. Those necessarily or fairly implied in or incident to the powers expressly granted. 1 Dillon, Mun. Cor., sec. 89.

We think the power of the city to grant a lease of the supply of water that had been used by it to furnish its water to its inhabitants, to one with whom it contracts to furnish its water to its inhabitants, fairly inferable from the power to make such a contract. Los Angeles v. City, 88 F. 720, 729; Sutherland on Statutory Construction, secs. 334-341; Mayor v. Sands, 105 N.Y. 210, 218; Brown v. Graham, 58 Tex. 254; People v. Briggs, 50 N.Y. 553; Odell v. De Witt, 53 N.Y. 643.

McCARTY, J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The evidence in this case, and in which there appears to be no material conflict, shows about the following facts:

In the year 1880 a corporation known as the Ogden Water Company constructed and put in Ogden City a small system of waterworks for the purpose of furnishing said city, and the inhabitants thereof, with water. In 1882 Ogden City purchased an interest in the waterworks referred to, and in 1884 acquired title to the entire system. The total amount paid by the city, including the amount they had previously paid the water company in assessments, was $ 74,000. The system, which had already proved wholly inadequate to supply the needs of the city, was extended from year to year to the extent warranted by the limited revenue of the city, but the extensions did not keep pace with the natural growth of the city, and could not supply the increased demands made on the system for water. In the winter the supply of water was obtained from what are known as Strong's and Waterfall Canons, but in the summer the city made no claim to water from this source, as certain farmers had a prior and superior right thereto, so that the supply of water during the summer months was taken from Ogden river, which source of supply was also rendered somewhat uncertain in times of scarcity because of the rights of farmers who owned interests in the waters of this stream. These conflicting interests caused more or less confusion, and the city's supply was reduced at times when most needed because of having to divide with the farmers. In the winter the source of supply from Ogden river had to be abandoned, because, there being no dam in the river, the intake pipe would fill with mush ice from the river and become clogged. Therefore Ogden City had no single source from which to draw for the whole year the limited amount of water necessary to supply its system of waterworks.

In 1889--the year in which the transactions occurred which gave rise to this litigation--the supply of water was insufficient to meet the necessities and demands of the inhabitants for water. The pipes for distribution did not reach nearly all the people who desired to be supplied with water from the waterworks system, and the city did not have the means with which to make the necessary and much-needed extensions of its pipe lines. Many of the people had to resort to the use of wells, the water of which was inferior in quality to, and not so healthy as, the mountain water supplied through the waterworks system. The amount of water furnished through the old system was about .98 of a cubic foot per second. The water was first run into a reservoir having a capacity of from 220,500 to 250,000 gallons, and was located so low down in the city that it could not supply many of the residents with water, and gave a very inefficient service to those connected with the system. In the business part of the city the normal pressure of the water was barely sufficient to force it to the second floor of the buildings, and was entirely inadequate to be of any service in case of fire.

Mr Cheney, who was the superintendent of the waterworks in 1889, was called as a witness, and testified in behalf of the city, in part, as follows: "The average pressure while I was working in the department was about forty-five pounds to the square inch, taking it the year around. . . . This is not a good fire pressure. It is no pressure at all. When there was a fire we did the best thing we could...