City of Gadsden v. Mitchell , 145 Ala. 137 ( 1906 )

SIMPSON, J.

This'is an appeal from a decree overriding a motion to dismiss the bill for want of equity and demurrers to the-same. In 1902 the appellant (defendant below), passed the ordinance and entered into the contract shown in the record, whereby certain rights were granted to appellee (complainant) and said complainant undertook and promised to build a system of water works for defendant, with stipulation,? as shown, and agreements on the pai’t of defendant to pay for certain service to he given to the city. On June 1,1903, defendant passed an ordinance by which it undertook to repeal the first ordinance. On December 27, 1904, another ordinance was passed, reciting the fact that Justice Tyson in his opinion' had declared that the contract between complainant and defendant could not he repealed, and, as the mayor and aldermen thought said opinion correct, the parties had agreed on certain modifications, and the original contract was in all -things ratified and confirmed and declared to he in full force. This was accepted in writing by complainant, and has never been repealed. Subsequently complainant demanded of the eitv-authorities that the streets in which the pipes were to be laid he designated-, and the -location for hydrants designated, in accordance with the terms of the contract, and the hoard of mayor and aldermen of said city passed an ordinance appointing a committee of three aldermen to attend to that matter. This committee never performed the duty, and, when complainant renetved the request, a reply was received, which was signed, “Charles P. Smith, Mayor of the City of Gadsden,” saying. “I am instructed to say that the mayor and hoard of aider-men of the city of Gadsden do not understand that they are under any obligation to comply with your request.”

A considerable portion of the argument is devoted to the question as to whether the mayor and aldermen of said city could repeal the ordinance by which the contract was made, and thus absolve the city from the obligations of the contract. We do not see that this question arises at all, as the original ordinance, with the modifications, was re-enacted and the contract reaffirmed. So that- the only question is whether, Avitli the contract still in force and unrepealed, said city can refuse to carry out its proAÚsions. We hold that the cty had the poAver and authority to enter into- said contract, and adopt what was said by Justice Tyson in the cause of Weller v. City of Gadsclen, 141 Ala. 642, 37 South. 682, in so far as he treats of the validity of the contract and of its several portions. The making of such a contract is not a. delegation of a governmental function, but is an exercise of its business or proprietary powers. — Gregsten v. City of Chicago, (Ill.) 34 N. E. 426, 36 Am. St. Rep. 496 ; 1 Dillon on Muni. Corp. (3d Ed.) §§ 27, 66, and cases cited in note ; Western Sav. Fund Society v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730 ; City of Indianapolis v. Indianapolis Gas Light & Coke Co., 66 Ind. 396 ; N. O. Gas Co. v. La. Gas Co., 116 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516 ; Louisville Gas Co. v. Citizens’ Gas-Light Co., 115 U. S. 683, 6 Sup. Ct. 265. 29 L. Ed. 510 ; N. O. Waterworks v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. Ed. 525 ; St. Tammany Waterworks v. N. O. Waterworks, 120 U. S. 64, 7 Sup. Ct. 405, 30 L. Ed. 563 ; City of Selma v. Mullen, 46 Ala. 414 ; City of Greenville v. Greenville Waterworks, 125 Ala. 627, 27 South. 764. The charter of the city of Gadsden confers ample poAvers to authorize the making of this contract. Acts 1882-83, p. 298, § 22. At any rate this is one of the-incidental poAvers of a municipal corporation.- — 1 Dillon on Muni. Corp. (4th Ed.) §§ 146. 443, note 1 ; Livingston v. Pippin, 31 Ala. 542, 550, 551.

There being no limit by constitution, or statute, as to the length of time for which such contracts may be made, the court cannot say that the time fixed by this contract is unreasonable. On the contrary, it is common knowledge that it requires a considerable outlay of money to construct a.system of waterworks, and a considerable pait of the material is buried under the surface of the ground, so that no arrangement could he made for the construction of such a system, .unless the contract be allowed to run for a number of years, so as to offer the hope of realizing something on the enterprise. While it is true that the providing of pure and wholesome water is an impoitant department of the duties of a municipal corporation, yet the authorities cited and many others are conclusive to the effect that the corporate authorities are intrusted with the discretion to determine how that can he best done, and if they find it to he to the best public interest to enter into contracts carefully guarded for the accomplishment of that end they have the light to do so. Without going into all of the details, the contract makes all necessary provisions to secure the purity and wholesomeness of the water, the strength and quality of the mains, provides for testing to the satisfaction of the mayor and aldermen, and also reserves the power in the mayor and aldermen to revoke the franchise upon failure of appellee To comply with the requirements of the contract.

•As to the objection ha,sed on the principle that one seeking injunctive relief based on a contract must show that he lias performed his part of the contract, it is sufficient to say that the contract in this case does, not prescribe the order-in which"work shall be done, nor make it necessary for complainant to purchase machinery, etc,, before laying the pipes. The contract being still in force, and the complainant having a right to demand that the streets he designated in which pipes are to he laid or conduits built, also to have designated the location of the 60 hvdrants, and it being impossible for complainant- to prosecute its work until those things are done, mandatory injunction is the proper remedy, and'complainant is entitled to the same. — 16 Am. & Eng. Ency. Law (2d. Ed.) 342.

But, as to the other prayer of the bill, that the defendant be enjoined from building a system of waterworks, that part of the original contract which attempted to make the franchise granted exclusive is violative of section 22 of the constitution of Alabama, and therefore incapable of enforcement, and, in addition to that, it has been eliminated from the contract by the amendment agreed to. — Birmingham & Pratt Mines St. Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465, 473-475, 58 Am. Rep. 615. That portion of the contract which is valid may be enforced, while that which is not, cannot be enforced.Ill. Tr. & Sav. Bank v. Arkansas City. 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518, 524 ; Monroe Waterworks Co. v. City of Monroe, (Wis.) 85 N. W. 685 ; City of Quincy v. Bull, 106 Ill. 337, 352 ; Clarksburg Elec. St. Ry. Co. v. Clarksburg, (W. Va.) 35 S. E. 994, 50 L. R. A. 142.

There1 is nothing in'the suggestion that Weller was not a proper party. Although the contract was made with Mitchell “and his associates,” etc., yet the bill alleges that the contract was made with Mitchell & Weller, and that Weller was his only associate.

The decree of the court is affirmed.

Weakley. (1 J., and Tyson and Anderson, JJ., concur.