San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1886-01-05
WATER WORKS CONTRACT,
The Lengthy Opinion Of the City
Attorney.
H Holds that the EUStng Contract IS
All Right and Binding on the
Part Of the City.

Board Of Aldermen:
GENTLEMEN IN n.-puus' &" resolution
adopted 10y your honorable body, requesting
my opinion Il, {" the validity "f In" contract
existing between I'M" city ut san Amt"ni" and
the san Antonio waicr-works Company, /
have the honor to submit the iuiIu0iuV IT. my
views:
After citing the original contract aud 'h"
. subsequent contract, the opinion continues
II was the evident intention 81 ~" "ily gov
eminent and of IN" MHicr-N"rkN COMPANY
ana their rc~p"Ctiy" attorneys. lnHt IN" much
. WDptCd question II To H." NWIdliA 81 iHi
Wntcr-wOrk~ contract shOuld De- drhnt'N -'l-
rh,d hV the compromise AMI the Modification
OF the original contract. and II ma been ~ug-
gu~iCd that tho decision OF tn" court ln ia"
Uu~" hCrCluhelurr referred 70, would pre- Ciin'
the city from now cnquirinE into the validity
Of tn" contract. / can moi concur III inns
view.
II i~H well established rule Of law. that IL
/ Judgment OF u court OF competent jurI-dIC-
ton j. conclusive and binding upon the par
tie rs 20 all points directly involved. or n"cr~-
| ~arIly determined 10y II, until the same u" re-
Hmt the prncipIr hy which judgments ar"
hcd conclusive upon tn" paruc-, requires
that the rude should apply only to that Whlrh
/ wis directly in ISSUE" and not every thing
which wH~ incidentally brought int" CUntro-
Ncr~y during the litigation.
carton ~. Hamilton ~ Teas, t'.
SO in Cook ". Burton. ~ Tex, 81. it was
held. that in order that former judgment
| should operate an cstOppcl ON rights asserted
~ 1t second action. II j. essential that the Is
! sue in the second action upon which the Tor
m"r Judgment il brought to bear was IA ma
| tcrIaI is~u" in the first action necessarily de
! tcrmucd 10y TIA" Judgment therein, and that
| the former Judgment was upon il merits.
So in Girurdiu ". Dean. ~ lCN 2i3. IL was
| held that, the applicability Of the plcI res
l udiudiCutu depends upon the identify ui IN"
| ullu-,. Of action or muItrr OF defence in issue,
uud not the identify or similarity Of points or
| grounds urged lU support oT maintain the
! ACTION or ma ter of defence.
BN reference to the petition in tn" case OF
/ th,. Water Works Company ". The city, II vi
hu -,.,u that the suit was brought tor IN" rent
/ ul tirr by dIuni> used by The Cty. and not To-
| ruIurcu % contract aud while IN" city pleaded.
It's a matter of d"ir.nC" thereto, the lnNulldiy
! 81 the contract. % was NOT necessary To deter.
| mine in that suit whether the contract was
/ valid or invalid. aud 50 far ~ the liability Of
! the city for tine rent OF the MIGRANTS was con
| C,rurd. he issue rnised wis not mat "riHl tn"
| cit, having used the fire hydrant~ was "S-
! tupurd from setting up IL matter of defence
/ the invuIdity Of the contract, aud bccam" il.
! able for tho reasonable value of the use Ui TIA"
! same independent of tn" contract.
| This may seem at first blush To ContraVenc
| the rule laid down in Green's BrcC'~ Ultra
| Niu.~ md Ed, PIP IA to rs, THAT the mrr"
| tact that corporation has received the con
Iteration of, or otherwise derived benefit
| from. Il contract, ultra wires does not involve
/ il Iu ANY liability upon such contract.
Butlu Field on corporations, sec. 2,3, the
| following j. drtucrd A. "a conclusion from an
| "NirndCd examination OF tn" authorities on
! thi, subject: "Thr better doctrine would seem
To- BE-" that wh"r" contract ultra wires has
been mad" hv corporation, ana II has re-,
criNUI thrtul consideration. aud appropriated
We -lmu 50 that il can not bC restored and
the other party placed in statu quo. aud cS-
prciaIly WHERE, no DhiCCtiOu is interpreted on
tho part Of those who might have made Il. the
corporation will generally i" hound hF IN"
cUntrn", IN" sam" rs II natural person.
In Hitchcock ". galveston, nj u :. ~. the
Guy Council of GHlv"~tpm had contracted with
Hitchcock aud others iOT the construction 81
certain sidewalks to Ire paid for 10y iil" issue OF
city bonds. After the work Wa partly per
fnrjurd, the city Council stopped IN" work
and prevented it, completion.
The action was for this hr"H"h OF contract.
II was Objected that by reason OF III" sup
posed want OF power to issue bonds, III" entire
contract Wd~ void and no action could hr
maintained for breach thereof The supreme
court Of tn" nlt"i state held that IN" city
was Liable to the extent Of In" work actually
performed under the contract, even Thought
had no lawful authority to iSsu" the bonds;
and in discussing the subject said: 1T Is
unuugh for plaintiffs that the city council
hay. power 10 enter into q contract To improve
Il sidewalk; that such contract was made
with them; that under il they have proceeded
tu furnish material and do work. rs we'll rs as
>uuc Liabilities; that the city hu- rec" y"d aud
now ruioys th" benefit OF what they hav" done
and furnished: and that for these things the
cut, promised to pay: and that after receiving
to- h"u"ht of ih" contract the city has broken
~. II matters not If the prulu'S" 30 pay was in
bonds not authorized 10y law. II payment can
ultra wires. it would be- sanCtiouing rank in
Justice I" hold that payment need not h" mad"
al all"
Smir tho case Of the city OF East St Lo,,i>ys
the East 81. Louis Gas Light and Coke Com
PAM, - His, III which was an action FOR
mooney claimed to be due for ga> light fur
u>hrd the city of East It. Louis. and the in
validity of tn" contract was set up aS de
tDu~,' thCr"tO-thC court says: The general
RAJ" applying in Sucn cases is that where
panty has accepted and mudC hi- Ow the bCne- |
Itf ..IF
denying in ia" courts the validity "f the i'll
strGm"nt 10y which these benefits cam" TO |
him
Passing from the question Of res adiudicata |
will now discuss the different prov isiuns of |
IN" contract, and the authority Of the city, |
un" (" its charter, to enter into il.
There seems to hC an idea, from what have
heard on this subject that courts of equity
will always stand between citizens and muni- |
cipal authorities TO shield them from abuses
and cNtravagHmt actions. This, take il. is not
one of the functions of courts.
1T is one of the incidents of popular gov
ernmCUt.' says Judge Campbell in recent |
case that the people must bear the cOnSc- |
pucnces OF the mistakes of their representa-
tivc>. No court can save them from this cX-
pcriCncc. II is one Of tn" modes of teaching
the necessity of choosing proper servants and
hcIug Vigiant to obtain reforms from abuses.
The discretion which is necessarily vested in
public funCtiOnarieS cannot be reviewed by
any one else, If they 20 beyond the range of
tn" power given them, II case arises for the in
reference of judiciary authority to keep them |
within the lines bounding their agoncv" Put
nam ct al. V. Grand Rapids, Vol p No. > |
Northwestern Reporter, p 81.
Consequently the question of the imprO-
pri"ty of making the contract cannot he con
sid"rGd IN determining It's validity or invalid |
ttN. Tn" question is simply one of power not |
Of wisdom.
lrth" contract violates the charter. it is in
valid. II not it i valid ana must stand.
Every city charter i enacted and intended
tor p"rInuuCuCC. and in view Of both extended
bounds and growing populations. il usually
leaves wide rang" of discr'tiOn in the choice
Of means Of promoting public Hs well ~ pri-
Natc convenience. II does not require the com
munity to be- deprived of the comfort and CON
vrniuncC of new inventions and improve
m"nts. and it usually does not restrict it to
any fixed way of obtaining them"
Tine FIRST question that presents itself is
whether the city of san Antonio was author
izcd under its charter to contract with pri-
vat" corporation to supply tn" city and its
citizens with water.
II is 1t general and undiSputcd proposition of
law that municipal corporations can exercise
the following powers, VIZ:
LIST. Those granted in express words.
I'd. Those fairly and necessarily implied or
Incident to the powers expressly granted.
3d. Those essential to the declared objects Of
til" corporation not simply convenient hut in
dspcnsuble
Attn. All powers within the fair intent AND
purpose of their creation, which are reason
uhy proper To give effect To powers expressly
granted.
VIII ums vs.. Davidson, ~ Tcx.,pI
Dillon ON MuuC. COr..-nOte on D. Ia.
Again, while the actions Of municipal cOrpO-
ratOns are to he held strictly within the limits
prescribed by their charters. vet within these
limits they are to hc favored.
Powers expressly granted or necessarily i'm
piled u " not to be defeated or impaired by II
stringent construction.
Cooley on COHst, Linn. y. 3gl.
/ Dillon Mum Cor, p. IA and note y. 10.
Smith vs.. Madison, Ind, ~ Kyle " Martin,
: Ind, ~. Tucker ". Nevada. New. ~
American Cor. Gases, p. G03
Under II power conferred by the legislature