Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-07-07

/ AADAAlAAA NV 49,
water works.
In these preparatory steps the city OF
/ Memphis expended $4,000 prior To the
2sth Of February, 1870, at which time the
CITY had not commenced the actual con-
struction of water works. No contracts,
as contemplated by reports OF the COM
missioners, were made or entered into,
and no advertisements for proposals hsd
been made as contemplated by sad
reports. The want Of available
means by the city, and the financial dis
trees and disturbed condition OF the cOun-
try wers the causes of the non prosecution
| ofthe building of water works by the city.
On the 18th of February, 1870, the Legis-
laturs GRANTED q charter OF incorporation
to the Memphis Water Company, IoE the
purpose OF supplying water 70 the cIy OF
Memphis ami the Inhabitants thereof by
means Of public works. The Water Com
pany, claiming the right TO do 50 underlts
| charter, Immediately on its organization
construction Of rs T%SSSREeafSw Is Is appR19 8 city
OF Memphis, and proceeded 20 take up the
paYements and sidewalks, n 70 use the
streets, lanes and alleys OF the city Tor the
purpose OF laying down its pipes, aque-
ducts and conductors, and constructing
its water works under the charter, without
the consent and in opposition to the Will
of the General Council of the city OF Mem
phis, and without making compensation
therefor to the city or 10 the adjacent
property owners.
After the Water Company entered upon
the construction of its water works, IN
der It's charter, the city Of Memphis com
menced to erect water works for the pur-
pose of supplying the city and It's lnhapl-
Esnts with water, and proceeded 10 erect
the same on its own account, in violation
of the provisions of the charter of the
| Water Company, which declares that the
privileges granted it are exclusive for the
period of thirty years, claiming that the
city has the right to do so unda the city
charter, which the Water Company on its
part denies, and insists that the action OF
the city is an invasion of its rights under
its charter.
These are the material facts agreed on
and submitted to the court below for sd-
Indication.
The court below decided the case against
the city of Memphis and h sppesls to
this court.
We have devoted as much time to the
investigation Ofthe important legal ques-
tons involved in this case as was prsctI-
cable in view OF the heavy pressure of
business now upon US; but u labor has
been so materially aided and lessened by
the elaborate and exhaustive printed ar
guments on bOth sides hat we are enabled
TO the results to which we have
arrived, but have not the time, however,
to discuss the several questions so ably
and ingeniOusly argued, but must be con-
tent to state the several propositions OF
law which are decisive Of the Case:
1. Tho city Of Memphis is q municipal
or public corporation as cOntra-distin-
guished from a private corporation.
Municipal or public grants of franchise
are always subject to the control Of the
legislative power for the purpose of
--al.E--a - -
cation. 5Hum., 24I; 3 Head, 81; Cooley's
COnst Lin. l92.
2. The erection OF water works to sup
ply q city and its Inhabitants with water
falls naturally and legitimstely within
the ordinary powers of its charter of in
corporation, and the exercise OF this power
within the limits chartered needs no en-
enabling act of the Legislature; il is,
therefore, IA Of the powers OF The cOrpO-
ration subject TO amendment, mOdifca-
tion, limitation or revocation 10y the Leg
islRture. To what extent, If st all,
the Legislature can interfere with
interests acquired and vested in the
due exercise of its corporate power
BY 3 public corporation, presents = ques-
ton not 0 necessary to be examined
or determined. 9 Hump. 268; II Hump.
$50.
B. The repeal or revocation or modihca-
ton Of b powers OF a municipal cOrpor-
alton may be effected, either expressly or
by necessary implication by subsequent
legislation. Hence if the act of 2Sth of
February, 1870, Incorporating the Mem
phis Water Company, with exclusive
powers to erect water works in Memphis
and supply the city and its inhabitants
with water, was a valid and constitu-
tutionsl exercise of legislative power, it
operated by necessary implication as a
revocation of the power OF the city cor
poration 70 erect water works for the
same purposes,
f.. The Memphis Water Company is a
private corporation, and upon the &C.
cepssnca Of its charter by thecOrpOrstors,
and their organization under it, q con-
tract was thereby contaminated between
the State and the cOrpOrstors which was
beyond the reach of subsequent legisla-
tive interference. IL is conceded that by
its express terms tho privilege granted to
the Memphis Water Company, for thirty
years is exclusive. What provision of the
Constitution forbids the granting a char
ter with an exclusive privilegs2 The
Legislature has tho right to do whatever
is not expressly or by necessary implica-
tor forbidden by the Constitution. Is
Hump. !; Comfy COnst. Lin. 81, los, 1881
8. BY section -, article /, Constitution
OF 1884, ''perpetuities and m~onopolies are
contrary to the genius OF a free State, and
shall not be allowed" The charter OF the
Memphis Water Company limits the du-
ration of the corporation to thirty years.
Il does not, therefore, create a %perpetui-
ty, Does It ereste a monopoly by secur-
ing 10 the company the exclusive pIivi-
lege Of supplying the city with water by |
means Of water WOrks7
We know Of no better disposition of q
monopoly than that given by Lord Coke |
and adopted by the supreme Court in the /
case Of Charles River Bridge VS.. Warren
Bridge; III Peters, co., "a monopoly iB
an exclusive right granted to a lew of
something which was before OF common
right; 80 that II is not q case Of monopoly |
il the subject had not the common right
or liberty before, to do the act or possess
or enjoy the privilege or franchise granted. /
as q common right"
The question, then, is narrowed down
to the inquiry: Did the individuals CON-
~pOsingthe Memphis Water Company have
the right before their incorporation, in
common with al Others, to erect water /
works in Memphis, to take up psVemsnts, |
occupy the streets and do such things as
we're necessary and proper in completing
their water works?
It is clear that none had the right to do /
these things except the city of Memphis, |
by virtue of its corporate power; and this
right on the part of the city Was exclu-
siYe until IL was taken away by the Leg
isisture and transferred TO the Memphis |
Water Company.
Il Is no more a monopoly when con-
ferred on the Water Company, than when
It belonged to the city Of Memphis It
was an exclusive privilege exercised by
the city, but IL was not a monopoly. II
is an exclusive privilege in the Memphis
Water Company, bub not a monopoly.
BLACK 4, Bat. ?, l59: 81 May'd r, 34e-l
6. Is the exclusive privilege granted by
its charter to the Memphis Water Com
psny forbidden by section7 Z, article IL OF
the Constitution?
It would 10 ididicult to show that the
privileges seouiaed 10 the Water Company
are not embraced within the provisions
of this section, but it is even more clear
that the power to Grant an sct OF incorpo-
ration is forbidden by the language Of the
body of this section. The pToyis0 TO She
section, however, gives the power to grant
charters ofincorpOrstion and for the pur-
pose of enabling the Legislature thereby
TO grant exclusive privileges which, but
for the pnoyiso, WOnldI be prohibited by
the body of b sectiOn.
In this grant of power 10 create corpo-
there is no Limitation on its powers
al least as contained By the general terms
this section. The Legislature is re-
CURED to consult "the public goOd'' in
granting charters. Il Sneed, LIE; 4 Col
IA; CorDy coDst. linn 28fgt 4
Z. The streets, alleys and pavements of
The city of Memphis had been dedicated
10 the public as easements, and placed by
The Charter Of the city Under the CONTROL
management of the city authorities.
1.-the city had gone on. to erect water
and supply tbs inAsbitants with
by means of pipes and ~squeducts
.iSbf E he sR SL S ss 8s Rsgs hsa s sns
alleys for the purposes of supplying the /
and nOowDsr Of sbutting lots could
have objected, because no Compensation
was paid 1t would have been such sppro-
Of the5easements for the benefits
the Inhabitants as was authorized an4I