State ex rel. City of Vicksburg v. Washington Steam Fire Company No. 3

• Decision Date: 23 January 1899
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI, EX REL. CITY OF VICKSBURG, v. WASHINGTON STEAM FIRE COMPANY NO. 3

24 So. 877

76 Miss. 449

STATE OF MISSISSIPPI, EX REL. CITY OF VICKSBURG, v. WASHINGTON STEAM FIRE COMPANY NO. 3

Supreme Court of Mississippi

January 23, 1899

November 1898

FROM the circuit court of Warren county, HON. WM. K. MCLAURIN Judge.

The state, suing on the relation of the city of Vicksburg, was the plaintiff in the court below; the fire company, a corporation, was defendant there. On March 10, 1897, the state of Mississippi, on the relation of the city of Vicksburg, filed an information in the nature of a quo warranto against the Washington Steam Fire Company No. 3, of Vicksburg, alleging that the defendant company was in 1870 incorporated by an act of the legislature of the state of Mississippi; that, by the third section of its charter provision is made "that, as a condition of the charter said company shall always keep a fire engine for the purposes of said company, and all proper and useful hose for the extinguishment of fire, " and charging that said company, for more than six years last past, has not complied with the terms of its charter, and has had no engine or hose. The information prayed judgment of forfeiture against said company of its franchise. To this information the defendant company pleaded three special pleas:

First special plea. That after receiving its charter, to wit, on the eleventh day of June, 1870, said company organized and built in Vicksburg a two-story brick building, known as the "Washington Engine House, " and made arrangements with relator for the use of a fire engine and hose owned by the city; that said engine and hose were kept in said building and were used by defendant in its work as a fire company of said city until the third day of June, 1889, when Vicksburg changed its fire system by taking control of and running the fire department and by paying and employing all employes thereof; that by said change the city did away with the use of fire engines and placed the entire fire service in the sole control of the municipal authorities; that the city took away from defendant said engine and hose and took exclusive control of all water supply for fighting fires that the defendant company has always kept up its organization, and has been ready to comply with all the terms of its charter; and that the object of the proceeding is to have the charter forfeited that the city might get title to the company's property.

Second special plea. That section five of its charter provides as follows: "Be it further enacted, That said company shall be and continue a fire company of the city of Vicksburg, and be subject to the ordinances of said city regulating the fire department;" that on the granting of said charter said defendant company, at the solicitation of the relator, organized as a fire company of said city; that relator accepted and used it as such, and, by an agreement satisfactory and compensatory to both parties, let the defendant have a fire engine and hose for said purpose, and which the defendant kept and used up to the third day of June, 1889, when relator organized its own fire department, took exclusive control thereof, has excluded defendant from being a fire company, dispensed with the use of fire engines, took away from defendant, over its protest, said engine and hose, and took charge and exclusive control of all sources of water supply for fighting fires, in all which it has hitherto continued and now continues, rendering it a vain thing for defendant to run an engine and hose; that defendant has always kept up its organization, and has been and is now ready to provide and keep a fire engine and hose for extinguishing fires, and offers to do so if it be allowed by relator to do service as a fire company of the city.

Third special plea. That the alleged failure to comply with the charter does not constitute a prejudice to any public interest, and does not involve the safety, welfare, or security of the community, for relator took exclusive control of the fire service of the city, and has since continuously served the city in that capacity, and meets every demand of the public as well as could be done by the defendant; that the present fire extinguishing arrangement was intended to be only temporary, and will, in the near future, be abandoned for economic and other reasons, when defendant may be permitted again to do service as a fire company of said city.

To these three special pleas the plaintiff demurred, but the demurrer was overruled, whereupon plaintiff made replication to each of said pleas as follows: That in 1870 the fire department of Vicksburg was conducted on the volunteer plan that on the eleventh day of June, 1870, the defendant company was chartered; that by the third section of its charter it was provided that the defendant should always keep a fire engine and all proper hose for the extinguishment of fires; in consideration thereof the members of said corporation should be exempt from military duty, except in certain contingencies named; that by its charter it was provided that said company shall be and continue a fire company of said city, and be subject to its ordinances regulating the fire department; that when said company shall cease to exist all the property used by it shall become the property of the city for the use of the fire department; that the defendant never owned an engine, or hose, or any other appliances for extinguishing fire, and that all property and appliances used by it were furnished by the city, and all expenses connected with its work were borne by the city, only the members thereof using the appliances aided in the extinguishment of fires. That, in 1889, the city changed the operation of its fire department from a volunteer to a paid department; that this change has been in operation for nine years, and the city has within its limits a complete system of waterworks, and that the volunteer system will never again be adopted in its fire department; that when this change was made the city government took possession of its engine and hose, and the whole aim, design, and purpose of said defendant corporation ended; that, during all the time since then, the defendant has continued to occupy the upper story of said building, but has never rendered, and never can again render, any service whatever to said city in its fire department, but, on the contrary, by keeping said upper story, defendant interferes with the operation of the fire department of the city; that defendant, when it accepted its charter, well knew that it was granted solely for the purpose of aiding the city in the extinguishment of fire, and when such a change in the fire department was made, which it well knew the city had a right to make, as would supersede the necessity of such a corporation, then its purpose would be ended, and the property must go to the fire department of said...