# Rogers Park Water Company v. Fergus

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## Dissenting Opinion

    White
United States Supreme Court
180 U.S. 624
Rogers Park Water Company v. Fergus
Argued: and Submitted October 31, 1900. --- Decided: March 25, 1901
This is a petition for a writ of mandamus which was brought by the defendant in error on the 13th of December, 1897, in the circuit court of Cook county, state of Illinois, against the plaintiff in error, to compel it to furnish him water at rates fixed by an ordinance enacted by the city of Chicago.
The defense is that such ordinance impairs the obligation of the contract which plaintiff in error claims to have with the village of Rogers Park before its annexation to the city of Chicago, as hereinafter mentioned.
The village of Rogers Park was from November 12, 1888, and until April 4, 1893, a municipal corporation orgainzed under the laws of Illinois. At the latter date it was annexed to the city of Chicago.
The Rogers Park Water Company, plaintiff in error, was a corporation, incorporated about the 24th of January, 1889, under the laws of Illinois, to construct and operate a system of waterworks in the village of Rogers Park, and to acquire such property and exercise the powers necessary thereto.
The company constructed and operated a system of waterworks in said village, and the premises of the defendant in error were connected thereto and supplied with water therefrom. The rates for such water under the ordinance of the city of Chicago were $8.72, payable in advance, for the current half-year from November 1, 1897, to May 1, 1898. Those rates were tendered to the company, and a supply of water demanded of it. The company refused to comply, demanding $13.50 for such supply, claiming that sum under § 12 of an ordinance of the village of Rogers Park before its annexation to Chicago, and which ordinance empowered the construction of the waterworks system.
The contract which plaintiff in error claims is based on that ordinance. It was passed November 12, 1888, and was entitled 'An Ordinance to Provide for a Supply of Water to the Village of Rogers Park, Illinois, and Its Inhabitants, Contracting with H. E. Keeler, his Successors and Assigns, for a Supply of Water for Public Use, and Giving the Said Village of Rogers Park, Illinois, an Option to Purchase the Said Works.'
It was provided that, in consideration of the public benefit to be derived therefrom, the village of Rogers Park, Illinois, granted the exclusive right and privilege, for a period of thirty years from the time the ordinance should take effect, 'unto H. E. Keeler, his successor and assigns, of erecting, maintaining, and operating a system of waterworks in accordance with the terms and provisions' of the ordinance. There was a grant of the use of the streets and alleys for mains and conduits, and power given to extend the system to new territory, if any should be acquired by the village. There were provisions prescribing the character of the system to be constructed, and that the village should pay 'an annual rental for fire protection, for less than 5 miles of mains within the corporate limits of said village, for the aforesaid period of thirty years, at the rental rate of five hundred and seventy-five ($575) dollars for each mile of main, to be payable semiannually.' There were also provisions for payment of taxes by the company, the flushing of sewers, and the maintenance of fountains, for the supply of water to the inhabitants, the quality of water, and the manner of the supply before prescribed, and for the acceptance in writing by the company of the terms of the ordinance. Provision was also made for the purchase of the system by the village.
Section 12 was as follows:
'The said grantee or assigns shall charge the following annual water rates to consumers of water during the existence of this franchise, and they shall have the right at any time to insert a water meter into the service pipe of any consumer, and to charge and collect from him at meter rates, provided that in such case the minimum annual rate paid by any one consumer shall be $5.'
Then follow the rates for the particular purpose for which the water might be used.
Section 13 provided for the levy of a tax to meet the payments stipulated by the ordinance, which should be irrepealable.
Section 14 was as follows:
'Within sixty days after the passage of this ordinance said H. E. Keeler, his successors and assigns, shall file with the village an acceptance of the same, which acceptance, duly acknowledged before some officer duly authorized to administer oaths, shall have the effect of a contract between the village and said H. E. Keeler, his successors or assigns.'
The plaintiff in error is the assignee of Keeler.
The plaintiff in error claimed in its answer that said ordinance of the village of Rogers Park constituted a contract with plaintiff in error by which it had the right to charge the rates contained in § 12, and that the ordinance of the city of Chicago reducing their rates impaired such contract, and violated not only the Constitution of the state of Illinois, but also violated § 10, article 1, of the Constitution of the United States, as well as the 14th Amendment.
One of the defenses of the plaintiff in error was that the premises of defendant in error were connected with the system by reason of his written application, which application was accepted and became a contract. The defense, however, is not made in this court, and further reference to it is omitted.
There was a demurrer filed to the answer of the plaintiff in error, which set up its defenses under the Constitution of the United States. The demurrer was sustained. Certain issues of fact were made on other pleadings, upon which there was a trial by jury, resulting in a verdict for petitioner and judgment on the verdict. The judgment was affirmed by the supreme court of the state (178 Ill. 571, 53 N. E. 363), and this writ of error was sued out. The assignments of error present constitutional questions only.
Mr. Newton A. Partridge for plaintiff in error.
Mr. Jesse B. Barton submitted the case for the defendant in error.
Mr. Justice McKenna, after making the above statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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