The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-12-03
NEARLY ALL AFFIRMED.
Lower Courts Sustained by the Su-
preme Tribunal.

pESHe
The supreme court yesterday handed
odWn decisions in a number of cases,
among these being an affirmation of
the verdict against the city of Duluth
in one of the water cases. The action
was brought by the State Trust COM
pany, of New York, to enforce the pay
ment of rent for city hydrants. The
city set up the defense that the COM
pany had violated it's charter by fail
ing to furnish a sufficient quantity of
pure water for domestic purposes.
The court holds that such failure is no
defense against an action for hydrant
rent. and in any event the clause
would only suspend the rentals from
private parties. The decision will
have an important effect in the settle
ment Of the whole dispute between the
city and the company over the fran
chise.
State Trust Company of New York, respond
ent, vs. City of Duluth, appellant.
The village now city, OF Duluth, for the
purpose of furnishing the village with
supply of water, passed an ordinance grant
ing to the water company the right to con-
struct and maintain water works and to lay
mains and place fire hydrants in the streets
and other public grounds Of the village The
water to be furnished was to be good and
wholesome and suitable for domestic pur
poses 1t was stipulated that the company
should erect and maintain certain number
of fire hydrants to supply to the village water
to be used exclusively for purposes Of fire
protection, for which it was to pay the COM
pany stipulated water rental. The ordi-
nance also prescribed a schedule OF water
rates which the company was authorized 10
charge private consumers.
Section of the ordinance provides as fol-
lows In the event that said gas and water
company after said works shall have been
OF a supply of good and wholesome water.
thereby causing an insuficency for domes-
tic and other purposes for a period exceed
ing sixty days, then in that event said COM
pany shall forfeit all exclusive franchise here
in granted pertaining to it as gas and
water company, unless such suspension shall
have been caused by the act of God, by
public enemies unavoidable accident, and
during such failure Of supply all water rentals
shall be suspended
Held that nasmuch as the granting Of the
franchise to the water company was the eX-
ercise Of a governmental function and as the
business in which the company was about
to engage was one affected with a public
interest" 1t was competent for the village, in
granting the franchise. to incorporate into 1t
a condition enforceable penalty to ensure
performance OF its public duty by the grantee
of the franchise. Also that the provision
as to the suspension of water rentals during
the default of the company In the perform
ance Of this duty, is valid and enforceable
although the same provision in contract
between private individuals might be con-
strued as mere on-enforceable penalty and
not as stipulated damages.
But this provision must be construed as
only ''suspending" the water rentals of
those to whom inadequate or improper service
is furnished
Hence IL the water company furnishes to
the city through their fire hydrants proper
supply of water for fire protection purposes,
the fact that the company had failed to fur
nish the private consumers quality of water
suitable for domestic purposes would be no
defense to an action against the city to re-
cover the rentals Of the fire hydrants. Order
affirmed. Mitchell. j.
Damage cases against the Great Northern
and the ST. Paul Street Railway company, in
which the defendants lost, the last case be-
ing that of Mrs. Annie DOnnelly. were all af-
frmed. The syllabi OF the cases of yester-
day are:
Thomas Berg, appellant, VS.. The Great North
ern Railway Company, respondent. Brede
C. Andseth appellant, VS.. The Great North
ern Railway Company. appellant.
One who without negligence on his own
part makes an effort to save his own prop
erty in danger of destruction by fire negll-
gently set by another and in so doing is
personally injured by the fire, may recover
for such injuries from the person who set
the fire. The negligent setting OF the fire is
the proximate cause of the injury.
But held. that the evidence justified the
trial court in finding that the plaintiffs were
guilty of contrlbutory negligence in unreason-
ably or recklessly exposing themselves to
danger. Judgment affirmed. Mitchell, j.