City of Walla Walla v. Walla Walla Water Company
Page 2 This was a bill in equity filed by the water company to enjoin the city of Walla Walla and its officers from erecting water works in pursuance of an ordinance of the city to that effect, or from acquiring any property for the purpose of carrying out such enterprise, or from expending the moneys of the city, or selling its bonds or other securities, for the purpose of enabling the city to erect such water works.

The facts are substantially as follows: By an act of the territory of Washington (November 28, 1883) incorporating the city of Walla Walla, it was enacted (section 11) that the city should have 'power * * * to provide * * * a sufficient supply of water'; and by section 10, 'to grant the right to use the streets of said city for the purpose of laying gas and other pipes intended to furnish the inhabitants of said city with light or water, to any persons or association of persons for a term not exceeding twenty-five years, * * * provided always, that none of the rights or privileges herein granted shall be exclusive, nor prevent the council from granting the same rights to others.' Other sections are as follows:

'Sec. 11. The city of Walla Walla shall have power to erect and maintain water works within or without the city limits, or to authorize the erection of the same, for the purpose of furnishing the city or the inhabitants thereof with a sufficient supply of water, * * * and to enact all ordinances and regulations necessary to carry the power herein conferred into effect; but no water works shall be erected by the city until a majority of the voters, who shall be those only who are freeholders in the city, or pay a property tax therein, on not less than five hundred dollars' worth of property, shall at a general or special election vote for the same.

'Sec. 12. Said city is hereby authorized and empowered to condemn and appropriate so much private property as shall be necessary for the construction and operation of such water works, and shall have power to purchase or condemn water works already erected, or, which may be erected, and may mortgage or hypothecate the same to secure to the persons from whom the same may be purchased the payment of the purchase price thereof.

 * * * * * * 'Sec. 22. The city of Walla Walla shall have power to adopt proper ordinances for the government of the city, and to carry into effect the powers given by this act. * * *

'Sec. 23. The city of Walla Walla shall have power to establish and regulate the fees and compensation of all its officers, except when otherwise provided, and have such other power and privileges not here specifically enumerated as are incident to municipal corporations. * * *

'Sec. 24. The power and authority hereby given to the city of Walla Walla by this act shall be vested in a mayor and council, together with such other officers as are in this act mentioned, or may be created under its authority.

 * * * * * *

'Sec. 43. The city council shall possess all the legislative power granted by this act.

 * * * * * *

'Sec. 103. The rights, powers and duties and liabilities of the city of Walla Walla and of its several officers shall be those prescribed in this act, and none others, and this is hereby declared a public act.

 * * * * * *

'Sec. 105. The limit of indebtedness of the city of Walla Walla is hereby fixed at fifty thousand dollars.'

Pursuant to these sections of the charter, the city council on March 15, 1887, passed 'An ordinance to secure a supply of water for the city of Walla Walla,' by which it granted, under certain restrictions, to the water company, for the period of 25 years from the date of the ordinance, 'the right to lay, place and maintain all necessary water mains, pipes, connections and fitting in all the highways, streets and alleys of said city, for the purpose of furnishing the inhabitants thereof with water.'

By section 4 the city reserved the right to erect and maintain as many fire hydrants as it should see fit, and, in case of fire, that the city should have all reasonable and necessary control of the water for the extinguishment thereof.

The ordinance also contained the following further provisions:

'Sec. 5. The city of Walla Walla shall pay to said Walla Walla Water Company for the matters and things above enumerated, quarter-yearly, on the first days of July, October, January and April of each year, at the rate of fifteen hundred dollars ($1,500) per annum, for the period of twenty-five (25) years from and after the date of the passage of this ordinance, the first quarterly payment to be made on the first day of October next (October 1, 1887).

'Sec. 6. The city of Walla Walla shall during said period, without expense for water, be allowed to flush any sewer or sewers it may hereafter construct, at such time during the day or night as the water company may determine, and under the direction and supervision of such officers as the city may from time to time designate, not oftener than once each week.

'Sec. 7. For all the purposes above enumerated said Walla Walla Water Company shall furnish an ample supply of water, and for domestic purposes, including sprinkling lawns, shall furnish an ample supply of good wholesome water, at reasonable rates, to consumers at all times during the said period of twenty-five (25) years; and this contract shall be voidable by the city of Walla Walla so far as it requires the payment of money, upon the judgment of a court of competent jurisdiction, whenever there shall be a substantial failure of such supply, or a substantial failure on the part of said company to keep or perform any agreement or contract on its part, herein specified or in said contract contained. But accident or reasonable delay shall not be deemed such failure. And until such contract shall have been so avoided, the city of Walla Walla shall not erect, maintain or become interested in any water works except the ones herein referred to, save as hereinafter specified.

'Sec. 8. Neither the existence of said contract nor the passage of this ordinance shall be construed to be or be a waiver of or relinquishment of any right of the city to take, condemn, and pay for the water rights and works of said or any company at any time, and in case of such condemnation the existence of this contract shall not be taken into consideration in estimating or determining the value of the said water works of the said Walla Walla Water Company.' The water company accepted this ordinance, entered into a formal contract with the city, and substantially complied with the terms and conditions of such contract, which has never been avoided by the city or by the courts, and was still in force at the time the bill was filed.

After this contract had been in force and the stipulated rentals paid for about six years, on June 20, 1893, an ordinance was passed 'to provide for the construction of a system of water works' for the purpose of supplying the city and its inhabitants with water; to authorize the purchase and condemnation of land for that purpose, and the issue of bonds to the amount of $160,000 to provide the necessary funds. Pursuant to the provisions of such ordinance an election was held, whereby the proposition submitted by the ordinance was carried by a sufficient majority of the legal voters.

The answer of the defendants insisted that the contract of the city with the plaintiff was not a valid and binding contract, so far as concerned the stipulation binding the city not to erect or maintain, or become interested in, any system of water works other than that of the plaintiff.

A demurrer to the bill having been overruled, and a preliminary injunction having been granted pursuant to the prayer of the bill, the case subsequently went to a hearing upon the pleadings and proofs, and resulted in a decree perpetuating the injunction. 60 Fed. 957. From this decree defendants appealed directly to this court, pursuant to section 5 of the circuit court of appeals act (21 C. C. A. v.), allowing such appeal in any case that involves the construction or application of the constitution of the United States.

A. H. Garland, R. C. Garland, and James Hamilton Lewis, for appellants.

John H. Mitchell, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

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