The herald., 1898-06-05

but indispensable. Any fair, reasonable
doubt concerning the existence of power is
resolved by the courts against the cor
poration. and the power is denied.
| q Dillon on Municipal Corporations, Sec.
| 50, page 115.)
| This text is cited with approval by de-
| PENDANTS in their brief, and, without re-
| ferring to the numerous cases also cited in
| the same connection, may be accepted as
| a clear summary of the law on the subject
| to which it relates.
The power of the city of Los Angeles to
| agree upon water rates. 1 think, is fairly
| implied in the power ito provide for sup
plying the city with water" and, there
| fore, falls within the second class of pow
ers enumerated by Judge Dillon.
Two cases, and only two cases, directly
in point have been called to my attention,
Santa Ana Water company VS.. Town of
San Buenaventura, Sc Fed. Rep. 339, and
Illinois Trust and Savings bank VS.. City
of Arkansas City, rs Fed. Rep. 271. Both
of these cases sustain the conclusion which
I have just announced, and, in the former
case, where the facts were strikingly
analogous to those in the case at bar.
Judge Ross held valid an agreement where
by the town of San Buenaventura granted
to the assignors of the Santa Ana Water
company 1.-THE unrestrained right to es-
tablish such rates for the supplying Of
water to private persons as they may deem
expedient provided that such rates be
general" From the opinion of Judge Ross
1 quote as follows:
1.-THE doctrine is firmly established that
the state may, by a contract, restrict the
exercise of some of it's most important
powers" citing New Orleans Gas company
vs. Louisiana Light, etc, company, 115 L.
S. $50 and Waterworks company VS.. Riv-
ers 115 U S. GA. " The principle
controlling the decisions cited is a just and
plain one. The duty is imposed upon the
legislative power that creates a municipal
CORPORATION to provide for the necessary
elements of gas and water. 1t may, at it!
discretion do so directly, or it may, in the
absence of any constitutional inhibition,
say, directly or through the municipal cor
poration so created to it's individual ciii-
zens, in the language of the supreme court
CBinghamton Bridge, Wall. "a: If you
will embark with your time, money and
skill in an enterprise which will accommo-
date the public necessities, we will grant
to you. for limited period or in perpetu-
ity, privileges that will justify the expendi-
ture cf your money and the employment
of your time and Skill Such grant, SAID
the court in the case from which the quo
tation is taken, is a contract with mutual
considerations, and justice and good policy
alike require that the protection of the
law should be assured to it..
Defendants cite large number of cases
to the effect that general power con-
tt1x. 20
supply the city with water does not include
authority to grant an exclusive franchise
therefor to others. This proposition, how
ever, is not now before the court since the
defendants admit that the fact of an ex-
elusive franchise having been granted to
the complaintants' assignors, IL such was
the case, does not vitiate the contract in
other respects. To my mind. there is
clear and broad distinction, so far as con-
Germs the power of municipal corporation
to make them, between the grant of an ex-
elusive franchise to supply the city with
water and an agreement which abridges
the right of such corporation to regulate
the price of the water so supplied. The
grant of an exclusive franchise Is not an
indispensable or even appropriate means
to the procurement of water, and, besides.
creates monopoly (and 1t Is upon these
grounds that many of the decisions hold
| ing such grants imperative are restedl
while an agreement fixing the price to be
paid for water does not destroy nor is 1t
| inimical to competition, and Is both ap-
propriate and indispensable to a reasonable
and convenient exercise of the gen
eral power to supply water. In pro-
curing water, or any other commodity, by
purchase, one of the first things to be con-
sidered and agreed upon is the matter of
price. Therefore, to hold that general
| power, without limitation, in a municipal
| corporation, to supply the city with water,
does not include power to agree upon price.
| it seems to me, would be solecism.
In State v. La Clede Gaslight Co., 1O2
Mo. Rep; S. c.. % Amer. State Rep. 795,
| the court says:
"It is not open to doubt or dispute tina t
| this power to make and vend gas carries
with it as an invariab BILE incident the right
| to fix the price of the gas thus made and
| sold. No other conclusion can be drawn
| from the premises. A sale implies a price.
| 1t would be but the granting of barren
right indeed which would confer power
| to incur expense and perform labor and
yet deny the power to fix and reap the
| fruits of that labor, to-wit, the price.
| Whatsoever the law necessarily implies in
| a statute or in a contract Is as much part
| and parcel thereof as If expressly stated
| therein. So that by the terms of the char
| ter of the respondent company its right
to fix the price of its product was as much
a part of it's charter as if it had teen, in
| terms, set forth in section of the origin
al act of incorporation"
| The words of the grant in the case at
bar, power 4 to provide for supplying
| the city with water" are clear and un-
ambiguous, and, in my opinion admit Of
| no other reasonable construction than that
| they were intended to confer upon the
| city of Los Angeles, so far as concerns
| the means necessary to supply the city
with water powers as ample as the legis-
lature itself possessed. This delegation of
power to the city was not, of course. re-
linquishment by the legislature of it's con-
| troll over the subject. The legislature
| could at any time revoke the power dele
| gated to the city, and provide directly
| through agencies of it's own selection. for
| supplying the city with water, provided
such revocation or provision should not
impair any previously vested rights.
In Illinois Trust and Savings bank v. city
! of Arkansas City, supra, the words of the
grant were: Full power and authority to
contract for and procure water works
to be constructed for the purpose of sup
plying the inhabitants of such cities with
| water"
While this phraseology is more diffuse the