Arizona weekly journal-miner., 1896-07-15
Judge hawkins Decides the Water Ordinance Invalid and Of
 no Effect.
4 Perpetual Injunction Ordered Against Carrying Out it's ProVisiOns.-An Appeal Win Probably
 be Taken.


 weeh ago, was decided by Judge J. J. Hawkins this morning in favor of the plaintiffs, and against the valid ity of the ordinance. The opinion is quite an exhaustive and elaborate one, and lack of space prevents its publication in full. The judge gives a critical review of the complaint and answer in the case and then says:
 ~The preliminary question in this case, is whether or not the plaintiffs herein have the right to institute and maintain the suit. 1t is alleged that they are residents and tax payers of the city of Prescott, own ing approximately taxable property within the corporate limits of said city, amounting to two hundred thousand dollars MT. JustIc Field, iu Champion Vs. ZSbriskie, l0l U. :. 60o, on the question of right of tax payers to maintain suit of this nature, says:
 ''Of the right of resident tax payers to invoke the interposition of court of equity, to prevent an illegal disposition of the moneys of the county, or the illegal creation of . debt, which they, in common with other property holders of the county, may otherwise be compelled to pay, there is st this day no seri- ous question. The right has been recognized by the state courts in numerous cases; and from the nature of the powers exercised by muicipal corporations, the great danger of their abuse and the necessity of prompt sction to prevent irremedl- able injuries, 1t would seem entirely improper for courts of equity to interfere, upon the application ot the taxpayers of county to pre- vent the consummation of a wrong when the officers of those corpora tions assume, in excess Of their powers, to create burdens upon property holders. Certainly iD the absence of legislation restricting the right to interfere in such cases, to public of the state or county, there would seem to be no substan- tial reason why 6 bill. by or on behalf of individual tax payers, should not be entertained tOprevent the misuse of corporate powers.
 The judge then quotes numerous other decisions on this point, and says:
 II am therefore of the opinion that these plaintiffs, being tax pay ! CTS, had the right to bring this suit, and if the allegations of their com l. plAint are true, to procure a perpetual injunction restrain i ing the City of Prescott, its l mayor and common council from an l illegal disposition of public prop l srty of said city, as well as prevent 1 ing and restraining the defendants, l Lawler, Wells and Fredericks, and !. the Prescott Water & Power Com . pauy, from in any way interfering with public property of the City Of Prescott.
 And the answers, in the nature of demurrerS, in esch particular case, are overruled.
 And am also of the opinion that while the mayor and members 0f the common council ara not ab- solatsly necessary parties, still hey ars proper parties, and they will be permitted to adopt the answer of said City of Prescott on the main issues herein ss their answer"
 The ordinance is then taken up section by section, by His Honor. and its provisions noted, and in summing up his conclusions, he says:
 aThers is nothing in the charter or laws of Arizona authorizing city 10 exempt any species Of prop ertV from taxation. But under the proof, is the confederation set up in the ordinance an adequate consider ationf It is shown by the testimony amount of cost ID procuring water for the sxtinguishing of fires has heretofore been only few hundred dollars per annum. This IS practic- ally the only consideration given to the city. It is true that good, wholesome water is to be furnished the inhabitants at the very liberal rates provided in Section 2l of said ordinance.
 "I conclude from the testimony and the reading of said ordinance, that the same shows no adequate consideration for the lease of this property belonging to the city for such long term.
 The ordinance is also obnoxious, to the charge that 1t delegates DOW CTS given to the city by its charter to the water company, and would obstruct future legislation of the city. No future council could regu- late the sale or supply of water
 "It would be a dangerous doc tFine, indeed, to hold that while the citizens of a municipal corporation may hold their election, vote their { bonds, and build their water works. which are to be held in trust for ' them by the city, that the mayor and common council may meet at [ any time thereafter, and without the , consent of its inhabitants or express authority of Legislative enactment prescribing exactly how it should be 1 done, lease, sell, or otherwise dis pose of such water works. ]
 The provision of the city charter , relied on to pass the ordinance and , make this lease, contains no express auth 'rity for the mayor and con- l mon council to sell, lease or other ( wise dispose of this class of prop erty. The ordinance is ULTRA WIRES, and the contract undertaken to be { made thereby is void; the plaintiffs | are entitled to the prayer of their I bill of complaint for a perpetual (  Let q decree be entered in their favor and the writ issue.
 "JoHN J. HAWKINS, ,. Associate Justice and Judge of I l. L. IA.-.--.- :. :