Arizona republican., 1906-03-10

CAS DuL AAi4N was DTleIly disposed or and the decision proceeded upon the main point, The fundamental question
 in the case is whether the city by the agreement of 1882, or in any other way, can so tie its hands by contract that 1t can not consistently with the constitu- tional rights of the water company es- tablish and maintain a separate sys- tenn of water works of its own. If the city made no such contract that will be | the end of the case; for, in the absence of contract protected by the Con stitution of the United States, the cir cult court (which had reviewed the easel could not take cognizance of the dispute between the parties all resi- dents of Tennessee; and it could not be said that any taking of private prop erty for public use could arise from the construction and maintenance by | the city of a water-works plant
 The principles which must control in determining the scope and obligations of the agreement of 1882 have been clearly outlined in our decisions. We may assume for the purposes of the present discussion, but without decid- ing, that the city of Knoxville was in- vested by the legislature with full au- thority, or that, under it's general mu- nicipal powers, it could bind itself by contract to give to single corporation | or company the exclusive right for a specified period to supply water for the use of itself and it's inhabitants. IL will yet be conceded that whatever authority it possessed in the matter
 was granted solely for the public good. and that in every substantial legal sense of the agreement with the water company is to be deemed Q public grant, entitling that company to eXer- else certain public functions that ap- pertain to that city as a municipal corporation
 Farther along in the decision the court accepts the dictrine that gov ernment possessing powers that affect the public interests and having entered into a contract involving such interests is not merely by means of implications, or presumptions, to be disarmed of powers necessary to accomplish the object of its existence; that any am
 biguity in the terms of such a contract must operate against the corporation and in favor of the public and the corporation can claim nothing but what is clearly given by the act; that it can never be assumed that the gov ernment intended to diminish it's pow CTS of accomplishing the ends of it's creation; and that those who insist that they may be diminished must find clear warrant for such contention before it can be needed. Grants of franchises and special privileges are always to be most strongly construed against the dOnee and in favor of the public
 Having disposed of this phase of the case, the decision reaches the agree ment itself: We fail to find in it any words necessarily importing an obliga- tiOn on the part of the city not to es- tablish and maintain water works of its own during the term of the water company. It is said that the company could not possibly have believed that that city would establish water works to be operated in competition with its system, for such competition would be ruinous to the water company as its prOprietors, on a moments reflection, could have perceived when the agree ment of 1882 was made. On the other hand, the city may with much reason say that having once thought of hav- ing its own water-works, the failure to insert in that agreement a provision precluding it in all circumstances and during a long period from having it's separate system shows that it was not its purpose to restrict the exercise of its powers, but to remain absolutely free to act as changed circumstances or the public exigencies might demand.
 
 the city would not at any time during the thirty years grant to any person or corporation the same privileges that it had given to the water company was by no means an agreement that it would never during that perioc con- struct and maintain water-works of its own"
 Further along the dicision holds: "If this interpretation of the contract will F,v-fra 1,-e- l-T,s- company and to those having an in terest in its property or it's bonds. the result is due to the absence from the agreement between the parties of any stipulation binding the city not to do what, unless restrained, it now propos- es to do. While there is no case pre- cisely like the present one in all it's facts, the adjudged cases lead to no other conclusion than the one just in dicated. We may well repeat here what was said in a similar case, where a 1 muhicipaI corporation established gas works of its own in competition with a private gas company, which under 1 previous authority had placed it's 1 pipes, mains, etc, in public streets l to supply, and was supplying, gas for ! the city and it's inhabitants: "It may l be that the stockholders of the plain l tiff supposed at the time it became in | corporated, and when they made their 1 original investment, that the city would never do what evidently is con templated by the act of 1889. And it may be that the erection and mainte- | nance of gas works by the city at the | public expense and in competition with | the plaintiff will impair. if not de- | stroy the value of the plaintiffs for l the purposes for which they were es- tablished. But such considerations | can not control the determination of | the legal rights of parties"
 Concluding, the decision says: "It is. ] We think. important that the courts ] should adhere firmly to the salutary l doctrine underlying the whole law of | municipal corporations and the doc | trines of the adiudged cases. that | grants of special privileges affecting |