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fre purposes and other great necessities free tions 2710, 2711, or 2712 of the statute, but oi' charge. But section 2710 states that "no would authorize the enactment of just such corporation formed to supply any city or a statute, unless it interferes with the right town with water must do so unless previous- of the legislature to say that a corporation ly authorized by an ordinance of the au- so formed shall furnish water for fire purthorities thereof or unless it is done in con- poses free. In our view of it, this section formity with a contract entered into between is not prohibitory at all. It is, as said above, the city or town and the corporation," and simply a definition. It does not say the legstates, further, that contracts so made are islature shall not pass a law compelling a valid and binding in law, etc. In the face water company, in consideration of the acof this statute, the court is asked, in effect, ceptance of certain privileges and rights, or to enter up a decree directing and requiring in consideration of any privileges or rights, said water company to furnish the city wa- to furnish a city or town water for fire purter for fire purposes free of charge, with poses free. Neither is this law repugnant this statute (section 2710) standing at the to the provisions of section 6, art. 15, of the head of the chapter which absolutely for- constitution, which says: “The legislature bids this corporation or any corporation to shall provide by law the manner in which furnish any water to the city, either free or reasonable maximum rates may be estabfor a compensation, unless said corporation lished to be charged for the use of water is previously authorized to do so by ordi- sold, rented or distributed for any useful or nance or by contract entered into between beneficial purpose.” That is, the legislature the corporation and the city. In order to shall provide by law the manner in which illustrate the position the court would be in, reasonable maximum rates may be fixed for let us suppose this court should reverse the the use of water furnished for which the cordecision of the court below, and direct the poration is authorized to charge anything, district court to enter up a decree in compli- and does not prevent the legislature from ance with the prayer of the complaint, in granting certain privileges, in consideration case the defendant should decline to answer. of the acceptance of which the corporation The district court would, in effect, be re- shall furnish water for fire purposes free, as quired to adjudge and decree that the de- above stated. As at present advised, we see fendant should furnish the city water for no reason for declaring this portion of secfire purposes and other great necessities free tion 2711 to be unconstitutional. There of charge, in the face of section 2710, which seems to be really but little reason, in the says it shall not furnish water for any pur- view we take of this cause, for touching uppose, either free or for compensation, unless on the question of the constitutionality of previously authorized by ordinance or con- this provision of the law; but counsel seemtract so to do. The complaint must state ev- ed to make it one of the issues to be detererything necessary to enable the court to en- mined, and therefore we have said the judgter up the judgment prayed for if the defend- ment of the court below is affirmed, with ant does not answer, but this the court can- costs to respondent, but the district court is not do in this case, because the plaintiff has directed to set aside the judgment of disnot alleged that said company is authorized missal, allow plaintiff to amend the comto furnish water at all, either by ordinance plaint, and issue a restraining order restrainor contract. While we think the city could ing the defendant from cutting off or interenter into no contract which could nullify fering in any way or manner with the water the provision of the statute which requires supply furnished by defendant to plaintiff for said company to furnish water free for fire fire purposes and other great necessities unpurposes to the extent of its means, still til the rights of the parties can be finally dewe think the court should know the exact | termined. condition of things between the city and water company, as there may be a contract HUSTON, J., concurs. or ordinance which would affect the character of the decree the court would be au- SULLIVAN, J. I dissent from the concluthorized to render.
sion reached by the majority of the court. Respondent contends, also, that the portion This suit was brought to restrain the reof section 2711 which requires the water spondent corporation from disconnecting its company accepting the privileges granted by water pipes from the pipes and fire hydrants the statute to furnish any city so occupied of the city used to supply water for fire purwater for fire purposes free is unconstitu- poses and other great necessities, and fromi tional, as repugnant to section 2, art. 15, cutting off and interfering in any way or Const. This section simply announces manner with the water supply furnished by general principle, and the first clause the defendant to the city for those purposes. amounts only to a definition; that is, that The complaint is as follows: "The plaintiff the right to collect rates, etc., for water sup- complains and alleges: (1) That it is a municiplied to any county, city, or town, or the in- pal corporation of Ada county, Idaho, duly habitants thereof, is a franchise, and cannot organized and existing under and by virtue be exercised except in the manner prescribed of the laws of the state of Idaho. (2) That by law. This section does not amend sec- the defendant is now, and was at all times
hereinafter mentioned, a private corporation, and if said threats be carried into execution doing business at Boise City, Ada county, Ida- will cause irreparable injury and damage to ho, organized and existing under the laws of the plaintiff. (10) That the plaintiff is withthe state of Idaho. (3) That the defendant, on out an adequate remedy in law. Wherefore the or about the 27th day of March, 1891, be- plaintiff prays judgment against the defend. canie incorporated, and a short time there- ant: (1) That the defendant, and its agents, after began doing business at Boise City, servants, employés, and all persons acting or Ada county, Idaho, under the corporate name claiming to act under or on behalf of said deof the Artesian Hot and Cold Water Co., fendant, be perpetually restrained and enLimited. (4) That the purpose for which the joined from interfering in any wise or mandefendant was incorporated was to conduct, ner with the pipes or fire hydrants of the furnish, and supply pure, fresh water to the plaintiff, or in meddling with the pipes and inhabitants of Boise City for domestic and connections of said hydrants with the wafamily uses, and to furnish and supply this ter mains and pipes of the defendant. (2) plaintiff with such water for municipal pur- That said defendant, and its agents, servants, poses, such as for fire and sanitary uses, and and employés, and all persons acting or for other great necessities. (5) That the de- claiming to act under or on behalf of said defendant has laid and constructed the water fendant, be enjoined and restrained from cutmains and pipes through the streets and ting off or interfering in any way or manner highways of Boise City, and is now using with the water supply furnished by the deand operating said water mains and pipes in fendant to the plaintiff for said fire purposes conducting, distributing, and furnishing wa- and other great necessities. (3) That pendter for pay to the inhabitants of Boise City ing this action the defendant, and its agents, for domestic and family uses. (6) That the servants, employés, and all persons acting or plaintiff, for its protection against fire, and claiming to act under or on behalf of said to provide for its further great necessities, defendant, be restrained from interfering in has placed pipe and fire hydrants to the any wise or manner with the connection of number of fifty-five, so connected with the any pipe or fire hydrant of the plaintiff with water mains of the defendant as to be sup- the water mains and pipes of the defendant, plied by water therefrom, and has so distrib- and from cutting off, meddling, or interferuted them at convenient places through Boise ing in any wise or manner with the water City that water may be secured through said supply as now furnished by the defendant to pipes and fire hydrants for the use of said the plaintiff for said fire purposes and other Boise City, the plaintiff herein, in case of fire great necessities; and that, pending said and other great necessities. (7) That the de- hearing on said motion for injunction, plainfendant has, by means of its connection with tiff prays a restraining order issue restraining the pipes and fire hydrants of the plaintiff, defendant from doing the things herein threat. supplied, and is now supplying, through its ened by the defendant. (4) That such other water mains and pipes, water to the said hy- and further relief may be granted as the drants and pipes, for fire purposes and other court may deem equitable; and for costs of great necessities; and the plaintiff, for the suit." To the complaint the defendant corpowater so furnished for fire purposes and oth- ration interposed a general demurrer, which er great necessities, has paid the defendant was sustained, and, on the plaintiff's refusal for said water the sum of $1,375 per annum. to amend, judgment of dismissal was en. (8) The plaintiff has refused, and does refuse, tered. This appeal is from that judgment. to pay the defendant any further sum or The only error specified is that the court sums whatever for said water for fire pur- erred in sustaining the demurrer and enterposes and other great necessities; and alleg- ing the judgment of dismissal. The question es and maintains that said plaintiff is enti- for determination is, does the complaint state tled to said water for fire purposes and other a cause of action? The contentions of regreat necessities free of charge, and without spondent are (1) that the complaint does not any further compensation whatever to the de- show that respondent is organized under or fendant. (9) That by reason of the refusal is authorized by chapter 5 of title 4 of the on the part of the plaintiff to pay or com- Civil Code to supply the city with water, and pensate the defendant-and for no other rea- (2) that the clause of section 2711 of said son-for said water furnished for fire pur- chapter requiring water companies to furnish poses and other great necessities, the defend- water for fire purposes free of charge is in ant has threatened, and is threatening, to im- conflict with article '15 of the state constitumediately cut off and stop the supply to the tion. As to the constitutionality of said plaintiff of said water for fire purposes and clause, I concur in the opinion of the majorother great necessities, and also threatens, if ity of the court. The remaining question for not paid, to immediately disconnect their wa- determination, then, is, does the complaint ter mains and pipes from the pipes and fire state a cause of action? hydrants of the plaintiff; and if permitted The allegations of the complaint must be so to do, as indicated by the aforesaid threats read in the light of the law under which the of the defendant, will leave the plaintiff with-respondent is furnishing water for compenout adequate means to protect the said Boise sation to the inhabitants of Boise City. City in case of tire or other great necessity; There is but one law under which it is legal
ly permitted to do what it is admitted by the , dinance or make a contract with the comdemurrer that it is doing, and that law is pany for placing the proper number of hy. found in chapter 5, tit. 4, Civ. Code. Ac- drants, and other necessary things needed to cording to the allegations of the complaint, be done in order to supply the city with wathe respondent is receiving the compensa- ter for fire purposes and other great necessitions and benefits authorized by said statute, ties. The complaint alleges, in effect, that and it should perform the duties and obliga- those details have all been agreed upon and tions imposed thereby. If the allegations of performed, and that the company is legally the complaint are true, the duties and obli- | supplying water to the city, but avers that it gations are imposed regardless of the terms threatens to sever its water pipes from the of any ordinance or contract which section fire hydrants, and to refuse to supply the city 2710 authorizes the city to make. When the with free water for fire purposes, and asks complaint alleges that the water company, to have it restrained from violating said freeformed for the purpose of supplying the city water provision. with water, is doing so, the presumption is In Bliss on Code Pleading (section 175) the that it is legally so doing, unless the contrary rule applicable to the point under consideraappears. And when a public statute pro- tion is thus stated: “When the law presumes vides that all such water companies must a fact, it should not be stated; thus, the law furnish water free of charge for fire pur- | presumes * that his [a man's] busiposes, such law cannot be annulled or set ness has been legally transacted.” "The aside by any ordinance or contract the city plaintiff should not state the facts thus preis authorized to make. Section 2710, which | sumed; but, if to be put in issue, the conprovides that a water company must not sup- trary averment must come from the other ply a city or town water until first author-side.” The respondent desires the converse ized by ordinance or contract, was not in- of the foregoing rule to be applied to this tended as a protection to water companies
It would have this court presume that which supply cities and towns water without the respondent is transacting its business being so authorized. It was enacted for the illegally. It would have us presume that it protection of the city, in order that it might is furnishing water to the city without an make proper contracts for fire hydrants and ordinance or contract authorizing it so to do, the proper placing of them, and other neces- in direct violation of the statute. If it desary things required in all such matters, and sires to show that, it should make the isto authorize a city to restrain any company sue by answer, for there is nothing in the from supplying water unless it complies with complaint that would justify such a presumpthe reasonable demands of the city in con- tion. But, to the contrary, the allegations necting its water pipes with the fire hy- clearly indicate that said water company drants of the city, and other necessary things was legally organized, had legally constructto make the water supply effective. The ed its waterworks, mains, and pipes, and lecomplaint alleges that the placing of such gally connected them with the fire hydrants hydrants and the connections with the water of the city, and was legally collecting water pipes of the company have all been arranged, rates of the inhabitants of Boise City. Said and no complaint is made on that ground. section 2710 declares that it must not do so These matters of detail all having been ar- unless first authorized by ordinance or conranged between the city and water com- tract. And for this court to hold that the pany, the company now threatens to sever | presumption is that said company is doing the connections between the water pipes and so in violation of said statute would be to fire hydrants, and thus refuse to comply with reverse the rule of presumptions as laid down the free-water clause of said section 2711. by Bliss on Code Pleading, as well as the The complaint sets out, in effect, a contract provisions of section 4231, Rev. St., which or ordinance which it, the city, might legally declare that the court must, in every stage of make under the provisions of section 2710, an action, disregard any error or defect in by alleging that the city has provided 55 fire the pleadings or proceedings which does not hydrants and certain pipes, to which the de- affect the substantial rights of the parties. fendant has attached its water pipes and What substantial rights of the respondent supplied water through them for fire pur- can be affected by requiring it to meet the isposes and other great necessities. The pro- sue presented by the complaint? I can convisions of that section are a part of every ceive of none. On the presentation of the ordinance or contract authorized by section case here, both parties concede that the con2710 to be made by the city, in the sense that stitutionality of the free-water provision of no ordinance or contract can be made to said section 2711 is the only question inevade its provisions, and no water company
volved in the case. If the respondent has a can evade that provision of the law and re- defense to that issue, it can be determined ceive protection under the other provisions as fully and as fairly as though the comof said law. Chapter 5 of title 4 of the Civil plaint set forth in haec verba any ordinance Code provides a complete scheme by which or contract made under the provisions of water companies may supply water to cities said section 2710. The city is entitled to and towns. The plan or scheme is complete free water for the purposes designated or in itself, except that the city may pass an or- it is not; and any defense the respondent has can be set up in this suit, and the issue ful- son that plaintiff refuses to pay for such ly determined.
water, and prays for an injunction to reSection 2710, Rev. St., declares that a water strain it from so doing. company must not supply water to a city or The issue tendered is plain and simple. If town unless first authorized by ordinance the water company has any contract with or contract. This provision is for the pro- the city whereby the provisions of the stattection of the city, and not for relieving the ute have been waived or set aside, or for any water company of any duties and obligations legal reason is not required to furnish free imposed by the provisions of said chapter. water, as alleged, that is a matter of deIf supplying the city with water without an fense, and should be met by answer. The ordinance or contract would annul or set respondent fully recognizes the issue tenaside the provisions of said section, then dered by the complaint, and endeavors to there would be some reason for holding that meet it in this court by attempting to show the complaint must allege, in terms, that that the free-water clause of section 2711 is said water is supplied under an ordinance or unconstitutional; and much the greater porcontract. Will it be seriously contended tion of respondent's oral argument and brief that, if such water is being illegally supplied was devoted to that point. And for this to the city by respondent, that fact is a de- court, under these circumstances, to hold fense to this action? I do not think so. If that the issue tendered cannot be fully deit can successfully interpose that as a determined without the allegation that the wafense, then it is permitted to profit by its ter company is furnishing said water under own illegal acts, which is contrary to every ordinance or contract, would be most techprinciple of justice and right. I do not think nical. The old rule of technical construcsuch a defense can be successfully made. tion was annihilated by our Code. Section If this position is right, then it matters not, | 4231, Rev. St., provides that courts must in so far as the issue in this case is concerned, every stage of an action disregard, not only whether the water company is supplying the errors, but also defects, in the pleadings or water, as alleged in the complaint, under the proceedings, which do not affect the subauthority of an ordinance or contract, or stantial rights of the parties. Any defense whether it is so doing without either. I do which said company may have might be set not think the city can make a valid contract up and as fully and fairly determined as it or ordinance under section 2710, waiving or could be if the complaint alleged in terms setting aside the clause of said section 2711 that said company was furnishing water un. requiring water companies to furnish water der an ordinance or contract, or that it was free for fire purposes. If this position is so doing without either. Appellant has not right, it makes no difference whether the wa- asked on this appeal that the defendant be ter is being supplied under ordinance or con- denied the right to answer, but, on the contract, or without either. If the free-water trary, seems desirous to have it interpose any clause in said section 2711 cannot be enforced defense it may have, and to have the matagainst companies that furnish water ille- ter fully and fairly determined. By the degally, that would be a strong inducement murrer the respondent admits that it is dofor all companies to furnish water illegally. ing every act which the complaint alleges Under the allegations of the complaint, the
that it is doing. If it is illegally supplying court should presume that the water com- water, and that is a defense to this action, it pany is conducting its business legally, and, can be interposed in this suit; and, if it is that being true, the duty to furnish water for supplying water by ordinance or contract fire purposes free of charge is imposed by which relieves it of the duty imposed by the the law. If that law is a hardship, and un
free-water provision of section 2712, that just to the water company, the legislature defense may be interposed. The decision of may repeal it, but this court cannot. The this court would seem to hold that respondcomplaint is too plain to require any con- ent would be deprived of a defense if the struction as to its effect. Its effect is to al- action of the court below be reversed, but, lege that the water company is supplying as shown above, the case may be sent back said city with water under the provisions of for trial and every right of respondent be chapter 5 of title 4 of the Civil Code; that fully protected. The judgment of the lower the city bas, under an agreement with said court should be reversed, with instructions to company, furnished 55 fire hydrants and overrule said demurrer, and that defendant pipes for the purpose of supplying said city be given time to answer. with water for fire purposes and other great necessities, and that said company has con
(4 Idaho, 392) nected its water pipes therewith, and is furnishing water for said purposes, and that
CITY OF BOISE CITY V. ARTESIAN HOT said city has heretofore paid said company
& COLD WATER CO. $1,375 per annum for such water, but that
(Supreme Court of Idaho. March 5, 1895.) said water company now threatens to sever
APPEAL-SETTING ASIDE JUDGMENT OF DISMISSAL. its said pipes from the pipes and hydrants
Under Rev. St. 1887, § 3818, providing
that the supreme court "may reverse, affirm of the city, and refuse to further furnish wa
or modify any order or judgment appealed from ter for the purposes aforesaid, for the rea- and may direct the proper judgment to be entered,” etc., the supreme court can set aside a
(2 Okl. 258) judgment of dismissal, in order to give plaintiff an opportunity to amend, and direct the
BROWN V. PARKER. court below to is ue a temporary injunction re- (Supreme Court of Oklahoma. Sept. 7, 1894.) straining defendants from interfering with Town-SITE ACT-PROBATE JUDGES-JURISDICTION plaintiff's rights.
-PowerS OF COMMISSIONERS--RIGHTS OF APPLIOn rehearing. Modified.
CANT_REQUIREMENT OF DEPOSIT-VALIDITY.
1. Section 17 of the act of congress apFor former opinion, see 39 Pac. 562.
proved March 3, 1891 (26 Stat. 1026), modifies S. L. Tipton and W. E. Borah, for appel- section 2387, Rev. St. U. S., repudiates the act lant. Geo. Ainslie and R. Z. Johnson, for
of Oklahoma legislature approved December 25,
1890 (St. Okl. 1893, p. 1145), and adopts the respondent.
statutes of Kansas determining the jurisdiction
of probate judges in town-site matters and preMORGAN, C. J. In this case this court scribing the regulations for executing such trust. affirmed the decision of the lower court, sus
2. The only laws in Oklahoma regulating
the duties of probate judges in town-site matters taining the demurrer to the complaint, which, are the laws of the United States and the state in effect, affirms the judgment of the lower of Kansas. court in dismissing the cause. In addition
3. Commissioners appointed by a probate to affirming the decision of the lower court,
judge to survey and plat town sites, set apart
the lots to occupants, and assess the expenses as above stated, this court set aside the against the several lots have nothing to do with judgment of dismissal, in order to give the collecting the costs of such proceedings, and are plaintiff opportunity to amend its complaint,
not authorized to make any rule requiring a
deposit from applicants for, or occupants of, and directed the district court to issue a tem
lots; and all such rules or demands are void, porary restraining order, to restrain the de- and may be ignored by lot claimants. fendant from cutting off, or interfering in
4. Such commissioners are not authorized
to swear witnesses, or sit as a court and hear any way with, the water supply furnished
contests, but it is their duty, from actual obserby the defendant to the plaintiff. The re- vation and such proof as claimants may submit spondent asks for a rehearing, by reason of
to them, to determine who were bona fide occuthe action of this court in setting aside the
pants of lots at the date of the entry of the
town site, and report said proceedings to the judgment of dismissal, and authorizing the
probate judge. temporary restraining order. We have ex- 5. Filing certificates issued by the probate amined the decisions cited in the petition for
judge prior to entry of land are without au
thority, have no legal force, and persons ac rehearing, and others, and have no doubt of
cepting them do so at their own peril, and must the authority of this court, under section 3818, suffer the result of their own stupidity. Rev. St. 1887, which provides “that the su- 6. A petition which shows that the plain
tiff is qualified to enter public lands; that he preme court may reverse, affirm or modify any
has actually settled upon, occupied, and imorder or judgment appealed from and may di
proved a town lot from the day it was subject rect the proper judgment or order to be enter- to settlement to the date of bringing suit; that ed, or direct a new trial or further proceedings
he filed his application with the town-site com
missioners for a deed; that he was the only occuto be had, * *" to make any modification
pant of the lot; that he tendered all fees and aswhatever that it may deem proper and nec- sessments, and that the commissioners refused essary, in the furtherance of justice between
to hear his claim because he refused to deposit
$25 with them as security for costs, and that the parties. We do not think it necessary
the lot was wrongfully deeded to another; and to put the extremely technical construction offers to reimburse the defendant for all assessupon this statute which was done by the su- ments and costs paid by him,--presents a case preme court of the state of California, but
for equitable interference.
7. A person who makes a motion for a new believe that a fair and liberal construction
trial and bases it on alleged causes is not entitled of the same fully authorizes this court to to a new trial as of right on such motion. make the modification which was made in (Syllabus by the Court.) this case.
Appeal from district court, Lincoln counIn regard to the point, however, that, as
ty; before Justice A. G. C. Bierer. the complaint was held to be insufficient to
Action by Abraham Parker against James maintain the action and procure the remedy
Brown. Judgment for plaintiff, and defendsought,-in other words, that it did not state facts sufficient to constitute a cause of ac
ant appeals. Affirmed. tion,-therefore it was not sufficient to sup
L. E. Payne and H. R. Thurston, for apport a temporary restraining order, we be
pellant. Decker, Jones & Devereux, for aplieve the exception to be well taken.
We , pellee. have therefore determined to change the order in this cause, and simply affirm the deci- BURFORD, J. The appellee, Abraham sion of the court below, with the direction Parker, brought his action in the district to that court to add to the judgment of dis- court of Lincoln county to charge James missal therein the words, "without prejudice | Brown, the appellant, as trustee for lot No. to another action.” And it is so ordered. 12 in block No. 43 in the city of Chandler,
Oklahoma territory. It appears from the HUSTON, J., concurs.
petition that the town site of Chandler was
set apart by the secretary of the icterior as SULLIVAN, J. I concur in the modifi- a county seat, and was part of the lands purcation of the judgment of the court below chased from the Sac and Fox Indians; that as above ordered.
the town site was opened to settlement on