fre purposes and other great necessities free of charge. But section 2710 states that "no corporation formed to supply any city or town with water must do so unless previously authorized by an ordinance of the authorities thereof or unless it is done in conformity with a contract entered into between the city or town and the corporation," and states, further, that contracts so made are valid and binding in law, etc. In the face of this statute, the court is asked, in effect, to enter up a decree directing and requiring said water company to furnish the city water for fire purposes free of charge, with this statute (section 2710) standing at the head of the chapter which absolutely forbids this corporation or any corporation to furnish any water to the city, either free or for a compensation, unless said corporation is previously authorized to do so by ordinance or by contract entered into between the corporation and the city. In order to illustrate the position the court would be in, let us suppose this court should reverse the decision of the court below, and direct the district court to enter up a decree in compliance with the prayer of the complaint, in case the defendant should decline to answer. The district court would, in effect, be required to adjudge and decree that the defendant should furnish the city water for fire purposes and other great necessities free of charge, in the face of section 2710, which says it shall not furnish water for any purpose, either free or for compensation, unless previously authorized by ordinance or contract so to do. The complaint must state everything necessary to enable the court to enter up the judgment prayed for if the defendant does not answer, but this the court cannot do in this case, because the plaintiff has not alleged that said company is authorized to furnish water at all, either by ordinance or contract. While we think the city could enter into no contract which could nullify the provision of the statute which requires said company to furnish water free for fire purposes to the extent of its means, still we think the court should know the exact condition of things between the city and water company, as there may be a contract or ordinance which would affect the character of the decree the court would be authorized to render.

Respondent contends, also, that the portion of section 2711 which requires the water company accepting the privileges granted by the statute to furnish any city so occupied water for fire purposes free is unconstitutional, as repugnant to section 2, art. 15, Const. This section simply announces a general principle, and the first clause amounts only to a definition; that is, that the right to collect rates, etc., for water supplied to any county, city, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except in the manner prescribed by law. This section does not amend sec

tions 2710, 2711, or 2712 of the statute, but would authorize the enactment of just such a statute, unless it interferes with the right of the legislature to say that a corporation so formed shall furnish water for fire purposes free. In our view of it, this section is not prohibitory at all. It is, as said above, simply a definition. It does not say the legislature shall not pass a law compelling a water company, in consideration of the acceptance of certain privileges and rights, or in consideration of any privileges or rights, to furnish a city or town water for fire purposes free. Neither is this law repugnant to the provisions of section 6, art. 15, of the constitution, which says: "The legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose." That is, the legislature shall provide by law the manner in which reasonable maximum rates may be fixed for the use of water furnished for which the corporation is authorized to charge anything, and does not prevent the legislature from granting certain privileges, in consideration of the acceptance of which the corporation shall furnish water for fire purposes free, as above stated. As at present advised, we see no reason for declaring this portion of section 2711 to be unconstitutional. There seems to be really but little reason, in the view we take of this cause, for touching upon the question of the constitutionality of this provision of the law; but counsel seemed to make it one of the issues to be determined, and therefore we have said the judgment of the court below is affirmed, with costs to respondent, but the district court is directed to set aside the judgment of dismissal, allow plaintiff to amend the complaint, and issue a restraining order restraining the defendant from cutting off or interfering in any way or manner with the water supply furnished by defendant to plaintiff for fire purposes and other great necessities until the rights of the parties can be finally determined.

HUSTON, J., concurs.

SULLIVAN, J. I dissent from the conclusion reached by the majority of the court. This suit was brought to restrain the respondent corporation from disconnecting its water pipes from the pipes and fire hydrants of the city used to supply water for fire purposes and other great necessities, and from cutting off and interfering in any way or manner with the water supply furnished by the defendant to the city for those purposes. The complaint is as follows: "The plaintiff complains and alleges: (1) That it is a municipal corporation of Ada county, Idaho, duly organized and existing under and by virtue of the laws of the state of Idaho. (2) That the defendant is now, and was at all times

hereinafter mentioned, a private corporation, doing business at Boise City, Ada county, Idaho, organized and existing under the laws of the state of Idaho. (3) That the defendant, on or about the 27th day of March, 1891, became incorporated, and a short time thereafter began doing business at Boise City, Ada county, Idaho, under the corporate name of the Artesian Hot and Cold Water Co., Limited. (4) That the purpose for which the defendant was incorporated was to conduct, furnish, and supply pure, fresh water to the inhabitants of Boise City for domestic and family uses, and to furnish and supply this plaintiff with such water for municipal purposes, such as for fire and sanitary uses, and for other great necessities. (5) That the defendant has laid and constructed the water mains and pipes through the streets and highways of Boise City, and is now using and operating said water mains and pipes in conducting, distributing, and furnishing water for pay to the inhabitants of Boise City for domestic and family uses. (6) That the plaintiff, for its protection against fire, and to provide for its further great necessities, has placed pipe and fire hydrants to the number of fifty-five, so connected with the water mains of the defendant as to be supplied by water therefrom, and has so distributed them at convenient places through Boise City that water may be secured through said pipes and fire hydrants for the use of saíd Boise City, the plaintiff herein, in case of fire and other great necessities. (7) That the defendant has, by means of its connection with the pipes and fire hydrants of the plaintiff, supplied, and is now supplying, through its water mains and pipes, water to the said hydrants and pipes, for fire purposes and other great necessities; and the plaintiff, for the water so furnished for fire purposes and other great necessities, has paid the defendant for said water the sum of $1,375 per annum. (8) The plaintiff has refused, and does refuse, to pay the defendant any further sum or sums whatever for said water for fire purposes and other great necessities; and alleges and maintains that said plaintiff is entitled to said water for fire purposes and other great necessities free of charge, and without any further compensation whatever to the defendant. (9) That by reason of the refusal on the part of the plaintiff to pay or compensate the defendant-and for no other reason-for said water furnished for fire purposes and other great necessities, the defendant has threatened, and is threatening, to immediately cut off and stop the supply to the plaintiff of said water for fire purposes and other great necessities, and also threatens, if not paid, to immediately disconnect their water mains and pipes from the pipes and fire hydrants of the plaintiff; and if permitted so to do, as indicated by the aforesaid threats of the defendant, will leave the plaintiff without adequate means to protect the said Boise City in case of fire or other great necessity;

and if said threats be carried into execution will cause irreparable injury and damage to the plaintiff. (10) That the plaintiff is without an adequate remedy in law. Wherefore the plaintiff prays judgment against the defendant: (1) That the defendant, and its agents, servants, employés, and all persons acting or claiming to act under or on behalf of said defendant, be perpetually restrained and enjoined from interfering in any wise or manner with the pipes or fire hydrants of the plaintiff, or in meddling with the pipes and connections of said hydrants with the water mains and pipes of the defendant. (2) That said defendant, and its agents, servants, and employés, and all persons acting or claiming to act under or on behalf of said defendant, be enjoined and restrained from cutting off or interfering in any way or manner with the water supply furnished by the defendant to the plaintiff for said fire purposes and other great necessities. (3) That pending this action the defendant, and its agents, servants, employés, and all persons acting or claiming to act under or on behalf of said defendant, be restrained from interfering in any wise or manner with the connection of any pipe or fire hydrant of the plaintiff with the water mains and pipes of the defendant, and from cutting off, meddling, or interfering in any wise or manner with the water supply as now furnished by the defendant to the plaintiff for said fire purposes and other great necessities; and that, pending said hearing on said motion for injunction, plaintiff prays a restraining order issue restraining defendant from doing the things herein threatened by the defendant. (4) That such other and further relief may be granted as the court may deem equitable; and for costs of suit." To the complaint the defendant corporation interposed a general demurrer, which was sustained, and, on the plaintiff's refusal to amend, judgment of dismissal was entered. This appeal is from that judgment.

The only error specified is that the court erred in sustaining the demurrer and entering the judgment of dismissal. The question for determination is, does the complaint state a cause of action? The contentions of respondent are (1) that the complaint does not show that respondent is organized under or is authorized by chapter 5 of title 4 of the Civil Code to supply the city with water, and (2) that the clause of section 2711 of said chapter requiring water companies to furnish water for fire purposes free of charge is in conflict with article 15 of the state constitution. As to the constitutionality of said clause, I concur in the opinion of the majority of the court. The remaining question for determination, then, is, does the complaint state a cause of action?

The allegations of the complaint must be read in the light of the law under which the respondent is furnishing water for compensation to the inhabitants of Boise City. There is but one law under which it is legal

ly permitted to do what it is admitted by the demurrer that it is doing, and that law is found in chapter 5, tit. 4, Civ. Code. According to the allegations of the complaint, the respondent is receiving the compensations and benefits authorized by said statute, and it should perform the duties and obligations imposed thereby. If the allegations of the complaint are true, the duties and obligations are imposed regardless of the terms of any ordinance or contract which section 2710 authorizes the city to make. When the complaint alleges that the water company, formed for the purpose of supplying the city with water, is doing so, the presumption is that it is legally so doing, unless the contrary appears. And when a public statute provides that all such water companies must furnish water free of charge for fire purposes, such law cannot be annulled or set aside by any ordinance or contract the city is authorized to make. Section 2710, which provides that a water company must not supply a city or town water until first authorized by ordinance or contract, was not intended as a protection to water companies which supply cities and towns water without being so authorized. It was enacted for the protection of the city, in order that it might make proper contracts for fire hydrants and the proper placing of them, and other necessary things required in all such matters, and to authorize a city to restrain any company from supplying water unless it complies with the reasonable demands of the city in connecting its water pipes with the fire hydrants of the city, and other necessary things to make the water supply effective. The complaint alleges that the placing of such hydrants and the connections with the water pipes of the company have all been arranged, and no complaint is made on that ground. These matters of detail all having been arranged between the city and water company, the company now threatens to sever the connections between the water pipes and fire hydrants, and thus refuse to comply with the free-water clause of said section 2711. The complaint sets out, in effect, a contract or ordinance which it, the city, might legally make under the provisions of section 2710, by alleging that the city has provided 55 fire hydrants and certain pipes, to which the defendant has attached its water pipes and supplied water through them for fire purposes and other great necessities.

The pro

visions of that section are a part of every ordinance or contract authorized by section 2710 to be made by the city, in the sense that no ordinance or contract can be made to evade its provisions, and no water company can evade that provision of the law and receive protection under the other provisions of said law. Chapter 5 of title 4 of the Civil Code provides a complete scheme by which water companies may supply water to cities and towns. The plan or scheme is complete in itself, except that the city may pass an or

dinance or make a contract with the company for placing the proper number of hydrants, and other necessary things needed to be done in order to supply the city with water for fire purposes and other great necessities. The complaint alleges, in effect, that those details have all been agreed upon and performed, and that the company is legally supplying water to the city, but avers that it threatens to sever its water pipes from the fire hydrants, and to refuse to supply the city with free water for fire purposes, and asks to have it restrained from violating said freewater provision.

* *

Said

In Bliss on Code Pleading (section 175) the rule applicable to the point under consideration is thus stated: "When the law presumes a fact, it should not be stated; thus, the law presumes that his [a man's] business has been legally transacted." "The plaintiff should not state the facts thus presumed; but, if to be put in issue, the contrary averment must come from the other side." The respondent desires the converse of the foregoing rule to be applied to this case. It would have this court presume that the respondent is transacting its business illegally. It would have us presume that it is furnishing water to the city without an ordinance or contract authorizing it so to do, in direct violation of the statute. If it desires to show that, it should make the issue by answer, for there is nothing in the complaint that would justify such a presumption. But, to the contrary, the allegations clearly indicate that said water company was legally organized, had legally constructed its waterworks, mains, and pipes, and legally connected them with the fire hydrants of the city, and was legally collecting water rates of the inhabitants of Boise City. section 2710 declares that it must not do so unless first authorized by ordinance or contract. And for this court to hold that the presumption is that said company is doing so in violation of said statute would be to reverse the rule of presumptions as laid down by Bliss on Code Pleading, as well as the provisions of section 4231, Rev. St., which declare that the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties. What substantial rights of the respondent can be affected by requiring it to meet the issue presented by the complaint? I can conceive of none. On the presentation of the case here, both parties concede that the constitutionality of the free-water provision of said section 2711 is the only question involved in the case. If the respondent has a defense to that issue, it can be determined as fully and as fairly as though the complaint set forth in haec verba any ordinance or contract made under the provisions of said section 2710. The city is entitled to free water for the purposes designated or it is not; and any defense the respondent has

MORGAN, C. J. In this case this court affirmed the decision of the lower court, sustaining the demurrer to the complaint, which, in effect, affirms the judgment of the lower court in dismissing the cause. In addition to affirming the decision of the lower court, as above stated, this court set aside the judgment of dismissal, in order to give the plaintiff opportunity to amend its complaint, and directed the district court to issue a temporary restraining order, to restrain the defendant from cutting off, or interfering in any way with, the water supply furnished by the defendant to the plaintiff. The respondent asks for a rehearing, by reason of the action of this court in setting aside the judgment of dismissal, and authorizing the temporary restraining order. We have examined the decisions cited in the petition for rehearing, and others, and have no doubt of the authority of this court, under section 3818, Rev. St. 1887, which provides "that the supreme court may reverse, affirm or modify any order or judgment appealed from and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had, * *" to make any modification whatever that it may deem proper and necessary, in the furtherance of justice between the parties. We do not think it necessary to put the extremely technical construction upon this statute which was done by the supreme court of the state of California, but believe that a fair and liberal construction of the same fully authorizes this court to make the modification which was made in this case.

In regard to the point, however, that, as the complaint was held to be insufficient to maintain the action and procure the remedy sought,-in other words, that it did not state facts sufficient to constitute a cause of action, therefore it was not sufficient to support a temporary restraining order, we believe the exception to be well taken. We have therefore determined to change the order in this cause, and simply affirm the decision of the court below, with the direction to that court to add to the judgment of dismissal therein the words, "without prejudice to another action." And it is so ordered.

HUSTON, J., concurs.

SULLIVAN, J. I concur in the modification of the judgment of the court below as above ordered.

(2 Okl. 258)

BROWN v. PARKER. (Supreme Court of Oklahoma. Sept. 7, 1894.) TOWN-SITE ACT-PROBATE JUDGES-JURISDICTION -POWERS OF COMMISSIONERS-RIGHTS OF AppliCANT-REQUIREMENT OF DEPOSIT-VALIDITY.

1. Section 17 of the act of congress approved March 3, 1891 (26 Stat. 1026), modifies section 2387, Rev. St. U. S., repudiates the act of Oklahoma legislature approved December 25, 1890 (St. Okl. 1893, p. 1145), and adopts the statutes of Kansas determining the jurisdiction of probate judges in town-site matters and prescribing the regulations for executing such trust. 2. The only laws in Oklahoma regulating the duties of probate judges in town-site matters are the laws of the United States and the state of Kansas.

3. Commissioners appointed by a probate judge to survey and plat town sites, set apart the lots to occupants, and assess the expenses against the several lots have nothing to do with collecting the costs of such proceedings, and are not authorized to make any rule requiring a deposit from applicants for, or occupants of, lots; and all such rules or demands are void, and may be ignored by lot claimants.

4. Such commissioners are not authorized to swear witnesses, or sit as a court and hear contests, but it is their duty, from actual observation and such proof as claimants may submit to them, to determine who were bona fide occupants of lots at the date of the entry of the town site, and report said proceedings to the probate judge.

5. Filing certificates issued by the probate judge prior to entry of land are without authority, have no legal force, and persons accepting them do so at their own peril, and must suffer the result of their own stupidity.

6. A petition which shows that the plaintiff is qualified to enter public lands; that he has actually settled upon, occupied, and improved a town lot from the day it was subject to settlement to the date of bringing suit; that he filed his application with the town-site commissioners for a deed; that he was the only occupant of the lot; that he tendered all fees and assessments, and that the commissioners refused to hear his claim because he refused to deposit $25 with them as security for costs, and that the lot was wrongfully deeded to another; and offers to reimburse the defendant for all assessments and costs paid by him,-presents a case for equitable interference.

7. A person who makes a motion for a new trial and bases it on alleged causes is not entitled to a new trial as of right on such motion. (Syllabus by the Court.)

Appeal from district court, Lincoln county; before Justice A. G. C. Bierer.

Action by Abraham Parker against James Brown. Judgment for plaintiff, and defendant appeals. Affirmed.

L. E. Payne and H. R. Thurston, for appellant. Decker, Jones & Devereux, for appellee.

BURFORD, J. The appellee, Abraham Parker, brought his action in the district court of Lincoln county to charge James Brown, the appellant, as trustee for lot No. 12 in block No. 43 in the city of Chandler, Oklahoma territory. It appears from the petition that the town site of Chandler was set apart by the secretary of the interior as a county seat, and was part of the lands purchased from the Sac and Fox Indians; that the town site was opened to settlement on