Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1882-10-12
TOWERs OF CITIES TO GRANT
WATER Peay1lECEA.

.
WATE1 PelyGlECEA.
EI-Chief Justice Lewis Vas r.
Gently called upon for an opinion "A
to she power Of tie city Of Vancouver.
under its charter, 20 grant exclusive
rights to water companies to supply the
city with water. A notice Of his opin-
ION was publistsd in several papers
which creates contrary impression to
that which the Judge intended. We
have procured a copy OF the opinion,
and as it is full of interest to all Few
cities and towns, We herewith give it
entire:
The legislature Of Washington Ter
rltofy, in January, 1858, passed an Act
Incorporating the city; the l2Sth SEC
ton provides, that the City Council is
hereby authorized to grant the exclu-
sive right u use the streets of said city
fog the purpose of laying water pipes
intended to furnish the inhabitants of
said CITY with fresh, wholesome water,
for term not exceeding Is years"
Among the special powers granted by
the Charter, per Section 81, subdivision
9Th, are: To provide the city with good
and wholesome water, and for the erec
ton and construction Of water works.
Under this Charter the Council passed
an ordinance granting to the persons
named the exclusive right to lay water
pipes within the city, in the streets
thereof.
Questions made are: First, Has the
City Council power to enact an Ordiu-
pipes IN the streets of the city for the
purpose of supplying water to the pso-
pie thereof. Second, Is this ordinance
granting the exclusive right q valid
Law!
In late case, decided by tho Supreme
Court OF lowe. involving the first point,
it was held that 1t was for the Council
to determine. according to their judg-
ment, As to the necessity and expedi-
ency Of any measure, aud the Courts
would not interfere to arrest the pas
sage of any ordinance; but when the
ordinance was passed, the doors of the
Courts are open to test its legality.
This opinion il based on reason, and
think that the Council should pass such
acts al are deemed for the welfare OF
its citizens, leaving it to the Courts to
decide as to the validity.-IGas Co. W..
City of Des MOines, A; Iowa 800.
Touching the second points, this
ordinance granting the exclusive right a
valid One!-it is self-evident that the
Legislature cannot delegate to the city
any powers which it cannot exercise.
Hence, If the Legislature could not
gran. such exclusive privileges. it could
no. give the City Council authority to
make such grant. The organic act is
the Charter of the Territory. BY its
provisions the legislative powers arc
fixed. The legislative power shall ex-
tend to all rightful subjects of legisla-
ton nOt inconsistent with tho Constltu-
ton and laws Of the United States
Revised Statutes Of the Z. s., Sec.
1S5l.I
In March, 1867, by Act of Congress,
the Legislative powers we're further linn
tied. II was then enacted, that the
Legislative Assemblies shall not grant
especial privileges, but by general law
permit persons to associate themselves
as bodies corporate for certain pur-
Revised Statutes of the q s.,
section 1889
Under the above provisions it was de-
cided BY the District Court of the Third
Judicial District that municipal cor
porations could only be organized by a
general law, and an Act was passed in
June, 1878, declaring that Section 1889,
above cited, should not be construed to
prohibit the organization of cities by
special act, and that Acts of the Legis-
lature formerly passed, erecting and
providing for government of cities, aud
comforting on them rights, powers and
privileges necessary for their local ad-
ministration, be ratified, but nothing
herein shall have the effect to create
any private right Laws Of the e. S.,
1878, p. 1O1.
The effect Of this last statute would in
no wise make valid any former Act of
the Legislature creating or granting any
private right, or special privilege. Sub
stantially. tho effect of the law was to
authorize the Legislature to create mu-
nicip al corporations by special act. and
to confirm such Acts as have been
passed before, IN so far as not incOn-
sistent with the organic act, and in so
far as no special privileges or private
rights had not been granted.
III tuo dOSouCc u tuo ACT Oh MARCH,
1867, am Of opinion that granting an
exclusive right'' 10 oppressive, and Gre
ates monopoly, and tends to impair
the rights of others to engage in such
business, and it is doubtful whether
suoh law would be valid; SO it was held
in Illinois and COnnecticut.-[45 Ills,
80; Is Conn.,, 10.
But since the law Of March, 1867,
Rev. Stat, Section 1889, above cited,
there can be no doubt on the question.
Clearly, it was not within the power Of
our Legislature at the time the Charter
of Vancouver was enacted, to have
passed a law granting such exclusive
right. such an Act would, in the very
terms Of the statute, be an especial
privilege" a privilege not to be enjoyed
in general, and in addition would tend
to discrimination and monopoly. The
Legislature, not having such power.
could not delegate it to the city. It
follows the ordinance granting the ex-
elusive right is void, and the Council
may grant the right to others.
j. Il. LEWIS, COunselor-at Law.
September IL. 1882.