The chronicle=news., 1914-11-27

has lately decided this question IN
the case of Hagerman vs.. The Town
of Hagerman. 141 Pacific 613, where
1t held that the town of Hagerman
had no right to purchase a system
of waterworks without first comply
ing with the provisions of this law.
1t is. however. argued by the at
torneys for the company that the
decision Is not authority for tho con-
tention OF the city in this case. This
position is not well taken. The hold
ing of the supreme court on this very
point is too plain to be disregarded
ny this court. II has no choice but
to follow the decision of the higher
court when It is couched in such un-
mistakable language as the follow
Ing: saW
I'VE hold. therefore, that the con-
tract or ordinance in question In this
cause is the purchase of waterworks
for domestic purposes within the pro-
visions of Subsection OF Section
24U2 Of the compiled laws of New
Mexico. 1897, and the vote approv-
ing the same at q general election
was necessary to It's validity before
the same could become binding and
enforcible obligation in court OF
law against the town OF Hagerman.
This court is further of the opin-
ion that even II the resolution In
question had been an election to pur-
chase, and had been valid and en-
forcible contract, the company can
not now compel Its specific perform
ance, because 1t has, In the language
of equity. "Slept upon its rights"
and has no. used due diligence in en-
tocing its claim. As we have seen.
it was in the early part Of December.
1911, when the resolution which II
claims was contract to purchase.
was passed by the city council. and
1t was not until the LIST day OF Au-
gust, 1914, that It brought this ac-
tion. 1t had both actual and con-
structive notice of the adoption Of
the resolution shortly after the same
was passed. Nevertheless, it allow
construct its own waterworks System.
issue bonds, hire engineers, apply for
a permit to appropriate waters, enter
into a contract to construct a reser-
voir. etc. sell bonds, bring an action
TO condemn real estate, and after all
this has been done 1t comes into this.
q court OF equity. and asks that the
city be compelled to specifically per-
form the terms OF the resolution OF
December 9th, 1911. The, old and
familiar maxim Of equity, "vigilant-
iDus non dorn,ientibus aeauitas sub
VENT" stands in the way. While
the relief Of specific performance Is
largely a Meter Of judicial discrc-
ton. that discretion should be con-
trolled by the principles OF equity
Jurisprudence. y
1t is true that during all this time
II: eotiat.a-a were pending between
the city am the company relative
to the purchase OF !Ee waterworks
system. bnt IL was not along the line
lof the resolution in question: in
, fact the resolution seems to have
been ignored and abandoned by both
rartics as soon as It was passed. and
nothing was ever done by anv one
i to carry 1t into effect until this a.
4, tinn was brought. The com;,aEv was
seeking a rev franchise. and apr3r-
rn,ly believed. as this coar. now
ho'ds, that the city had no p,wcr to
'Gy under the resolution passed
/, .nally when the city had ITS owr
water system well under ''ealway
I; and after lapse OF nearly three
rrars. the company comes int> court
! .ri seeks to enforce the te.ms Of e.
, resolution. which it, according to the
r:.dcnce, had considered of sc little
| significance as to permit :. ~ he
ove looked and forgotten. WIN It
sEculi have asserted its cla,m to
Lrina it within the rules Of equity.
was when II first learned .ha: III"
city was departing from the terms Of
The resolution. 1t is now too late
'.he case of the town of fi!nnwood
Sp- ihrs vs. the Glenwood LtGht &
Mater company. 2O2 Federal Report.
e-. tTS. Is very similar to Ito one
now before the court A portinn Of
~" syllabus In that case is as 'o!-
lows:
"The town elected to purchase
appointed two arbitrators. and re-
uuested the company to appoint two.
and to proceed to fix the valuation.
The company failed to appoint arbi-
traitors or to take any action for II
months. Thereupon the town re-
pealed the resolution. signifying
its election. and was about to issue
bonds to purchase the waterworks at
the price 1t specified, and If the COM
pany failed to accept that price to
construct waterworks of it's own.
| when the cnmnanY filed ita bill and