Davenport v. Kleinschmidt , 8 Mont. 467 ( 1889 )

Liddell, J.

The plaintiffs in this suit are citizens and taxpayers of the city of Helena, and instituted the present action in 1886, against the defendants, mayor and aldermen of the city aforesaid, and against one G. F. Woolston.

It appears that on the 22d of November of that year, the city council, by an ordinance, granted to the defendant Woolston the franchise of laying mains and water pipes through the streets and supplying water to the inhabitants of said city, as well as furnishing the corporation with water for fire and sewerage purposes for a period of twenty years at a stipulated payment of one thousand two hundred and fifty dollars per month.

The plaintiffs alleging the contract to be illegal, at the time of filing their suit, applied for and obtained an injunction restraining the city council from entering into the contract or paying out any money in accordance therewith. The defendants (except Woolston) appeared and moved to dissolve the injunction upon various grounds to be noticed hereafter; and when the motion was decided against them, appealed the case to this court where it was tried in January, 1887. The opinion of the court, found on page 502 of 6 Mont., affirms the decision of the lower court, and the defendants having filed their answer, the case was again decided in favor of the plaintiffs upon their motion for judgment on the pleadings; and from this judgment the present appeal is prosecuted. Before we can intelligently understand the present issues in the case it will be necessary to consider tho opinion referred to, and find from it what issues were presented, and what points therein decided.

The complaint alleges the illegality of the ordinance entering into the contract; first, because it creates a monopoly; second, because it increased the indebtedness and liability of the corporation beyond twenty thousand dollars, which is the amount limited by sections 17 and 37 of the charter of the city; third, because it involved an expenditure of over one hundred dollars, and was not advertised in accordance with the provision of the city'charter; fourth, that the ordinance is in violation of the act of Congress passed the 10th of July, 1886. Those grounds in the motion to dissolve which were insisted upon, were that the bill was without equity and that the writ was improvidently issued.

In the outset of the opinion, the organ of the court, Justice McLeary, while expressing the opinion that Woolston was not a party to the record by reason of the failure to summons him, nevertheless holds that the parties before the court were sufficient to the complete determination of the controversy and the issues involved.

From a careful reading of that opinion we find that the following issues were determined in that controversy, brought about by the motion to dissolve: First. The court held that the plaintiffs had the right to enjoin the council from the execution of and expenditure of the city’s revenues, upon an illegal contract. Second. The court held that the defendant, Woolston, was not a party to the proceedings, never having been summoned, and was not a necessary party. Third. The court declines to express any opinion as to the divisibility of the franchise and contract. Fourth. That part of the ordinance which gave to Woolston the exclusive right and power of selling water to the city of Helena for a period of twenty years at a fixed rate is a monopoly. Fifth. That under the charter of the city no authority existed for the creation of monopolies. Sixth. The ordinance granting the exclusive right and power to furnish the city water for a period of twenty years at a fixed rate was not for a reasonable period under the circumstances, and the contract was one beyond the power of the council to enter into. Seventh. The contract proposed was one forbidden by section 17 of the city charter, as amended by the Act of 1883, page 19, which limits the city indebtedness for any purpose whatever to twenty thousand dollars. Eighth. That the indebtedness of the city at that time already exceeded the limit fixed by the charter, to wit, twenty thousand dollars. Ninth. No further debts could be incurred without aid from the legislature of the Territory. Tenth. “ That whether the contract was considered in the nature of a debt or liability, it is prohibited by section 37 of the city charter, which provides that the aggregate amount of bonds, and all indebtedness and liability of the city for any and all purposes whatever, shall not exceed the sum of twenty thousand dollars. Eleventh. For this reason it is beyond the authority of the council to make it or carry it out in any particular. Twelfth. The court also holds that the contract is void because it involved an expenditure of over a hundred dollars, and was not advertised before letting as is required by the city charter, page 15. Thirteenth. The contract does not create an indebtedness which falls within the act of Congress of the 10th of July, 1886. Fourteenth. The injunction was neither improvidently nor prematurely issued.

After this decision the defendants filed an answer admitting the assessed value of property in the city to be five million dollars, as stated in the complaint, and that the bonded indebtedness is also as stated in the complaint, to wit, nineteen thousand dollars; but they deny any floating indebtedness at all on the part of the city. They deny any contract or intention to contract between Woolston and the city; but aver that the tenor and effect of the ordinance is to authorize and empower Woolston to lay pipes and mains and to furnish the inhabitants of the city with water, and to procure from him such water as is needed for city purposes; and that to pay for such water the ordinance makes appropriation.

Without enumerating further the denials and allegations of new matter, we may say generally that the answer puts at issue all the points.presented in the complaint and passed upon in the opinion of the Supreme Court heretofore referred to. In passing upon the motion for judgment on the pleadings, the court, while sustaining it, modified the injunction in so far as it restrained Woolston from erecting his system of water-works under the franchise, but made the writ perpetual as to the council, and prohibited them from carrying out the ordinance wherein it gives the exclusive right and power to Woolston to furnish the city with water for fire and sewerage purposes for the period of twenty years. From this judgment it is plain that the question of the divisibility of the ordinance has been recognized by the judge a quo, and from the oral arguments and briefs we understand the point to be conceded by counsel for both sides, and that it is therefore eliminated from the contract.

This being the case we are confronted with the identical questions which were passed upon in the former appeal. It is true, however, that the allegations of the answer which go to show the enhanced or increased value of the taxable property and revenues of the city might make it necessary to review one of the questions, that is, whether or not the revenues are sufficient to meet the additional expenditure without increasing the debt or liability of the city. But even if that point was well taken we could not consider it, because the injunction must stand or fall by the state of facts which existed at the time the writ was granted.

Counsel for defendants in their exhaustive brief announce the following questions, which will have to be decided in their favor in order to entitle them to a decree: (1) Does the ordinance create a monopoly? (2) If so, can plaintiffs question it? (3) Is the contract part of the ordinance unreasonable as to time? (4) Does the ordinance create an indebtedness in violation of the provisions of the city charter? (5) Was the suit prematurely brought, and was the danger imminent?

We do not deem it necessary to proceed further than an examination of the first two questions, both of which must be decided adversely to the pretensions of the appellants.

It is a well-established principle of jurisprudence that when the Supreme Court has once laid down the law governing a case, it must be followed even though the decision be erroneous. And this rule is based upon the fact that the jurisdiction of the Supreme Court being only appellate, and the delays for rehearing having expired, the matter passes beyond the jurisdiction of the court. The principle is almost inflexible, and is supported by an overwhelming array of authorities which make no distinction between public and private rights. See the case of Davidson v. Dallas, 15 Cal. 82, 83, where Justice Baldwin, after expressing the disapproval of the court of its former decision, uses the following language: “ But the respondent’s counsel meets this view by opposing to it the decision and judgment heretofore made, and claims that whether erroneous or not, that decision is the law by which we are bound. And we are compelled to yield our assent to the proposition. The question of the binding force upon this court of its own judgments, rendered at a previous term in the same case, is not an open one. It arose early, and was first announced in the case of Dewey and Smith v. Gray, 2 Cal. 376. In that case the court said: ‘When this case was here before, the court decided that if a landlord entered upon his tenant’s premises without his consent, before the expiration of the lease, and relet the premises to another, such entry and reletting discharged the tenant from his covenant, except as to such part of the rent as had accrued at the time of the re-entry, which the landlord was entitled to recover.’ The latter portion of that decision is in abrogation of one of the plainest principles of law, and if this case was a new one, I would not hesitate to overrule it, but legal rules deprive us of the power to do so. The decision having been made in this case, it has become the law of the case, and it is not now the subject of revision. The.question was very fully argued and considered by the Supreme Court of the .United States in the case of the Washington Bridge Co. v. Stewart, 3 How. 413, and although in that case the .question raised on, the record was the important one of jurisdiction, it was, notwithstanding, held that the decision of the court in the same case was conclusive of the rights of the parties, and not ‘ revisable,’ ” This decision was followedby the cases of Clary v. Hoagland, 5 Cal. 476; 6 Cal.685; also Gunter v. Laffan, 7 Cal. 592. See,, also, the following cases: Washington Bridge Co. v. Stepart, 3 How. 413, 424; Himely v. Rose, 5 Cranch, 313; Skillern’s Exrs. v. May’s Exrs. 6 Crunch, 267; Santa Maria, 10 Wheat. 442; Ex parte Sibbald, 12 Peters, 488, 491; Hosack v. Rogers, 25 Wend. 313, 364; Stiver v. Stiver, 3 Ohio, 19; Booth v. Commonw. 7 Met. 286; Russell v. La Roque, 13 Ala. 151. See, also, Mulford v. Estudillo, 32 Cal. 131; Kile v. Tubbs, 32 Cal. 338; Argenti v. Sawyer, 32 Cal. 414; Yates v. Smith, 40 Cal. 662.)

By turning to the opinion of Justice McLeary, as it appears on pages 522, 523, and 524, 6 Mont., it will be seen that he has most exhaustively considered the question of the right of the parties plaintiff to institute this suit, and concludes by saying “ The right of the plaintiffs, being tax-payers, to bring this suit, and in proper case .... to procure an injunction to restrain the illegal disposition of the city’s money, cannot be doubted.” Passing now to the question of the monopolistic feature of the proposed contract, which is by way of ordinance, a copy of which is attached to the complaint, and thus before the court, Justice McLeary not only declares it a monopoly, but that it is void as being beyond the power and scope of the city council to create. In these two propositions he analyzes the ordinance, comments' upon its construction, and reviews many authorities which conclusively demonstrate to him that it is open to the objectionable charge. After devoting six pages to the discussion of this question, he uses the following forcible and expressive language: “ Tried both by the square of principle and the plumb line of authority, this contract proves itself in all essential particulars a monopoly, and for that reason the making of it is beyond the powers of the city council, unless it were expressly authorized by the legislature.”

We do not deem it either proper or necessary to recapitulate the arguments or reasons of the court on these points. The decision is the law of the case, and must govern in all its stages. It also appears that the question as to the right of the writ was in issue upon the motion to dissolve, and after being thoroughly considered, the court held that it had been properly issued. There is neither law nor reason in re-opening the questions which have once been decided by the Supreme Court in this litigation. Without going any further in the examination of the points raised by the able counsel for the defense, we are unanimously of the opinion that the right of the plaintiffs to institute this suit, and to the writ of injunction, and the nullity of the ordinance on account of its monopolistic features, having been once decided in this litigation, the same questions cannot again be reviewed on this appeal.

The judgment of the lower court is therefore affirmed.

Judgment affirmed.

Bach, J., and De Wolfe, J., concur.