City Council v. Montgomery Water-Works , 79 Ala. 233 ( 1885 )

SOMERYILLE, J.

These two causes were argued and submitted together, and we find it more convenient to consider them in connection, as both of them, to some extent, are dependent on the same principles.

The suits were instituted by the Montgomery Water-Works against the City Council of Montgomery for water supplied the city for the extinguishment of fires, and also for water used for sanitary purposes in flushing and cleansing the public sewers in the city; and a judgment was rendered in the court below for the plaintiff-in each case.

It is contended for appellant, that these actions are based strictly upon a certain contract made between the parties litigant in the year 1871, the contents of which are set out in the complaint, and the provisions of which purport to be mutually obligatory for a period of about twenty-four years, or until the year 1895. And the argument is urged, with great force, that this contract, for so great a length of time, is -ultra vires and void, for two reasons, either of which, it is said, will preclude the plaintiff’s right of recovery. The first contention is, that the city authorities were forbidden, by the express terms of their charter, from entering into such a contract for a longer period than one year, such alleged prohibition being found iir section 9 of the amended charter of the city, approved March 3, 1870, which was in force at the time the contract in question was made, and which provides, that “the city council shall not contract any debt, or incur any liability in the future, for or on account of the city of Montgomery, except such as shall be paid out of the ordinary current revenue of the city collected in the year the debt or liability is contracted.” — Session Acts 1869-70, p. 338, section 9, p. 361. The second objection urged is, that one municipal council, or board of aldermen, can not lawfully tie the hands of its successors for so great a length of time, because it is an attempt by contract to surrender its legislative authority in abridgement of the corporate power belonging to such successors equally with the particular body thus undertaking to barter it away for an agreed price.

These are grave questions worthy of serious consideration. But a careful investigation satisfies us that they do not necessarily arise in the decision of the cases made by the records.

The suits are not, properly speaking, brought upon the contract, or for the purpose of enforcing it as an executory agreement. The contract, it is true, is set forth in the complaint; but this may be considered as done only by way of inducement, in view of the other averments, which show an actual consumption, fro.m month to month, and year to year, by the defendant, of water supplied by the plaintiff for the extinguishment of fires, and of water used, from time to time, for sanitary purposes. The suits, in other words, are upon the contract, only so far as it has been executed by the plaintiff, and no right is based upon it so far as it is executory.

It is not denied that the city council had the power to contract for a supply of water for a single year, to be used for the purposes designated, or that the price agreed to be paid for it could not be paid out of the ordinary current revenue of the city for the particular fiscal year during which the liability for it was contracted, as required by the charter. The existence of this power is clear, and can not well be disputed.—Intendent v. Pippin, 31 Ala. 542; Acts Ala. 1878-79, p. 374. So, the power to make such a contract for one year being shown to exist, it could be exercised with equal propriety any other year, or successively from year to year, without in any manner infringing upon either of the principles to which we have above adverted as being contended for by the appellant’s counsel. There would be no violation of section 9 of the city charter, conceding to it the construction contended for; nor would there be any tieing of the hands of any city council by its corporate predecessor. It we admit that the contract is ultra vires, so far as concerns the executory part of it, it may nevertheless be good so far as it has been executed on the part of the plaintiff, and the defendant has, without objection, enjoyed its benefits. In legal effect, the result is precisely the same as if the contract had been renewed from month to month, and year to year, the plaintiff furnishing water to the defendant at the latter’s mere pleasure.

The defendant having the power to contract from year to year for a supply of water, and having obtained the benefit of such supplies, and appropriated them to its use from time to time, it is both reasonable and just that the services and property thus enjoyed should be paid for, and the plaintiff’s right to recover is not interdicted by any sound rule of law, which is known to us.

The case of City of East St. Louis v. East St. Louis Gas-Light and Coke Co., 98 Ill. 415, cited by appellee’s counsel, is a well-considered authority which supports the foregoing view in every essential particular. See, also, Field on Corp. § 273; Hitchcock v. Galveston, 96 U. S. 341; City Council of Montgomery v. Montgomery Water-Works Co., 77 Ala. 248.

We are aware of no principle which would justify the sustaining of the defendant’s pleas of recoupment and set-off. These pleas set up the fact that a large amount of property, owned by private persons, resident within the city limits, had been destroyed by fire by reason of the insufficiency of the water supply agreed to be furnished by the plaintiff, and offer to set off and recoup the damages thereby sustained by these persons. It seems to be settled, according to the' better view, that the power conferred upon municipalities to organize fire companies, and supply other means for the protection of property against destruction by fire, is a power in its nature legislative and governmental, involving the exercise of judgment and discretion in its proper execution. In this particular it differs from the ordinary ease of a corporation charged by statute with the performance of a mere ministerial duty. For the erroneous exercise of such governmental power municipal corporations are not liable, nor are they responsible to individuals for the neglect or non-feasance, of their agents in the discharge of their official duties touching such matters.—Wheeler v. City of Cincinnati, 19 Ohio St. 19; s. c., 2 Amer. Rep. 368; Black v. City of Columbia, 19 S. C. 412; s. c., 45 Amer. Rep. 785. In view of this non-liability, there is, even in an equitable point of view, an utter absence of relevancy in the fact that damages have accrued to a third person, between whom and the defendant there is no privity of legal relationship or liability. The plaintiff, moreover, does not owe the defendant for such damages. If it owes any one, it is the individuals whose property has been destroyed. This want of mutuality is fatal to the allowance of the claim.

The evidence sought to be introduced by the defendant, as to an existing custom in other cities of the United States, having water-works, to use water drawn through fire-plugs for sanitary purposes, flushing sewers, and the like, was" properly excluded from the jury. The terms of the contracts, under which this so-called custom was alleged to exist, were not proposed to be shown, nor was there any evidence offered as to whether any compensation was paid for this extra use of water.

This evidence falls short of any effort to prove that, when the city purchased the use of “fire-plugs,” there was included in this right, thus bargained for, the privilege of using, free of additional charge, water for sanitary purposes. The record does not, according to our view of the matter, raise the question as to whether or not the compound word “ fire-plug ” may not have a flexible signification, which would be broad enough, under peculiar circumstances, to permit the meaning contended for by appellant’s counsel to be attached to it by established usage.

Nor is the question raised by the pleadings, in proper shape, whether the defendant was entitled to recoup for the alleged defective quality of the water furnished.

We discover no error in the rulings of the court, in either case, on the pleadings or the evidence; and the judgments must each be affirmed.

Olopton, J., not sitting.