Phoenix Water Co. v. City Council of City of Phoenix

• Decision Date: 30 March 1906
• Docket Number: Civil 908
• Citation: 84 P. 1095,9 Ariz. 430
• Parties: PHOENIX WATER COMPANY, a Corporation, Plaintiff and Appellant, v. THE COMMON COUNCIL OF THE CITY OF PHOENIX, Defendant and Appellee
• Court: Arizona Supreme Court

84 P. 1095

9 Ariz. 430

PHOENIX WATER COMPANY, a Corporation, Plaintiff and Appellant, v. THE COMMON COUNCIL OF THE CITY OF PHOENIX, Defendant and Appellee

Civil No. 908

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Affirmed.

Dismissed with costs, per stipulation. 204 U.S. 675, 51 L.Ed. 674.

Statement of facts: --

Action by the Phoenix Water Company to restrain the city of Phoenix from issuing bonds for the purpose of constructing a water-works system. From a judgment sustaining a demurrer to its complaint plaintiff has appealed. Affirmed.

C. F Ainsworth, Chalmers & Wilkinson, and Dillon & Hubbard, for Appellant.

Bennett & Bennett, for Appellee.

OPINION

NAVE, J.

-- The appellant, the Phoenix Water Company, a corporation, in April, 1904, brought suit in the district court of Maricopa County to restrain the city council of the city of Phoenix from issuing, selling, and disposing of its bonds proposed to be issued and disposed of for the purpose of constructing a system of waterworks for the city of Phoenix, Arizona. The defendant interposed a general demurrer to the complaint. The demurrer was sustained. The plaintiff elected to stand on the complaint unamended, whereupon judgment was entered upon the demurrer. From this judgment the Phoenix Water Company has appealed.

The body of the complaint in this case occupies thirty pages, while the exhibits attached thereto occupy an additional fifteen pages. We do not deem it necessary to the expression of our opinion to set this complaint forth in full. Plaintiff complains in substance that the city of Phoenix, in February, 1889, granted a franchise, to endure twenty-five years, for the construction of a system of waterworks in that city to one Gardiner, by whom the franchise was assigned to the plaintiff; that the franchise by its terms, should endure for an additional twenty-five years, unless the city should exercise a privilege reserved therein to purchase the grantee's plant; that the consideration recited for this franchise is that the grantee shall, during its term, supply water free of charge for the use of the fire-department, city officers, free public schools, churches, for a spray-fountain in each public park a drinking-fountain in each ward, and for flushing the public sewers and gutters; that the city, upon its part, contracted during the existence of the franchise, to pay a rental of seventy dollars per annum, each, for fifty fire hydrants, or such larger number as should be required by the city; that plaintiff and his grantee have expended five hundred thousand dollars in constructing and perfecting their waterworks, and that at the present time there are outstanding mortgage bonds, secured by the waterworks and franchise, in the sum of five hundred thousand dollars; that if the defendant constructs its own waterworks it will impair, if not entirely destroy, the value of the plaintiff's waterworks and cause partial or entire loss to its bondholders. Still further plaintiff shows that it is a taxpayer in the city of Phoenix, paying taxes annually in the amount of about one thousand dollars; that the election in which taxpaying voters voted on the question of the issuance of the bonds, the sale of which is sought here to be restrained, was conducted by election officers who were determined to carry the election in favor of such issue of bonds; that registration for this election was so fraudulently conducted that several hundred persons...