*AIAYOR AND ALDERMEN OF THE CITY OF VICKSBURG, Appt., v.

VICKSBURG WATERWORKS COMPANY. (See S. C. Reporter’s ed. 453-473.)

case Involving application of Federal Constitution. — A case which involves the application of the Constitution of the United States, and is therefore the subject of a direct appeal from a circuit" court to the Supreme Court, under the act of March 3, 1891 (26 Stat. at L. 827, chap, 517, U. S. Comp. Stat. 1901, p. 549), § 5, is presented by a bill in equity which alleges that a contract right of a waterworks company, with whose predecessors a municipality, with legislative sanction, contracted for a municipal water supply, is impaired by an ordinance directing that the waterworks company be notified .hat the city denies any liability on a contract for the use of hydrants, and by the subse¬ quent action of the city in holding an elec¬ tion to authorize an issue of bonds to buy or construct waterworks of its own, and in refusing to pay the amount due and payable under the terms of the contract.

court.— Permitting the withdrawal of an original bill of a waterworks company, al¬ leging that it had become the owner of the contract involved in a suit between the municipality and anotheY waterworks com¬ pany, where such bill, being in the nature of a supplemental bill, was filed after the city, in answer to the company’s petition to be admitted as a party complainant, had denied that it had any interest in the litigation, was not an abuse of the discretion of the trial court, and the same is true of its ac¬ tion in suppressing the testimony on this question, and in denying the municipality leave to file a further answer, setting up the alleged transfer of ownership.

wlrat passes on foreclosure _ The con¬

tract rights under a municipal ordinance, which were the property of a waterworks company, authorized by Miss. Laws 1882, p. 50, to borrow money and secure its payment by mortgage or deed of trust upon its prop¬ erty and franchises, passed by foreclosure and a subsequent quitclaim deed of the prop¬ erty covered by a mortgage of all its property and franchises, privileges and rights.

contract obligation — reserved right to repeal.— Impairment of the contract rights acquired by a corporation under a foreclosure sale of the franchise and rights conferred upon the mortgagor by a municipal ordinance adopted prior to the Mississippi Constitution of 1890 cannot be justified as an exercise of the right to alter, amend, or repeal corporate charters, reserved in § 178 of that Constitution, although the corpora¬ tion in question was organized after the Con¬ stitution went into effect.

contract obligations— reserved right to repeal. -The reserved right to alter, amend, or repeal corporate charters, given by Miss. Const. 1890, § 178, “provided, however, that no injustice shall be done to the stock¬ holders,” does not authorize the legislature to empower a municipality to construct waterworks of its own during the term of an

Note. — On direct review in the Supreme Court of the United States of circuit and dis¬ trict court judgments — see note to Gwin t. United States, 46 L. ed. U. S. 741.

1102

As to what laws are void as impairing obliga¬ tion of contracts — see notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405 ; Fletcher v. Peck, 3 L. ed. U. S. 162 ; McCanna

202 U. S.

Vicksburg v. Vicksburg Waterworks Co.

exclusive waterworks franchise, possessed by a private corporation under a municipal ordi¬ nance adopted with legislative sanction.

grant exclusive privileges. —A munici¬ pality, in exercising the authority conferred by its charter to provide for the erection and maintenance of a system of waterworks to supply the city with water, and, to that end, to contract with a party or parties who shall build and operate waterworks, may ex¬ clude itself from constructing and operating waterworks of its own for the term cov¬ ered by such contract.

clusive privileges. — A municipality ex¬ cludes itself from competition during the period named with the grantee in an ordi¬ nance of the exclusive right to erect, main¬ tain, and operate waterworks for a definite term, to supply water for public and private use.

construction of sewer.— A municipality cannot he required, by a mandatory injunc¬ tion, to extend a sewer and construct an out¬ let therefor, so as to discharge the sewage below the intake of the waterworks, irre¬ spective of the exercise of the discretion vested by law in the municipal authorities to determine the practicability of the sewer or¬ dered, the availability of taxation for the purpose, and like matters.

[No. 133.]

Submitted December 13, 1905. Decided May 21, 1906.

APPEAL from the Circuit Court of the United States for the Southern District of Mississippi to review a decree enjoining municipal competition with a private water¬ works company, and requiring the munici¬ pality to construct a sewer which shall dis¬ charge below the intake. Modified by elijn- inating the provision respecting the sewer, and, as modified, affirmed.

The facts are stated in the opinion.

Mr. J. C. Bryson submitted the cause for appellant. Messrs. Bryson d Dabney were on the brief :

The complainant’s motion to dismiss and affirm must be overruled if the record dis¬ closes any material issue not decided on the former appeal, which involves the con¬ struction or application of the Constitution of the United States, or the construction of a state law alleged by appellee and de¬ nied by appellant to be in contravention of the Constitution of the United States, pro-

v. Citizens’ Trust & Surety Co. 24 C. C. A. 20, and Montana Ore-Purchasing Co. v. Bos¬ ton & M. Consol. Copper & S. Min. Co. 35 C. C. A. 12.

As to reserved power to alter, amend, or re¬ peal corporate charters — see note to Greenwood ▼. Union Freight R. Co. 26 L. ed. U. S. 961.

202 U. S.

vided the same was by the court below decided against appellant.

Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174; Lampasas v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368; Carey v. Houston d T. C. It. Co. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. Ct. Rep. 63; Cornell v. Green, 1©3 U. S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969; The Nuestra Sehora de Regia (United States v. The Nuestra Sehora de Regia) 108 U. S. 92, 27 L. ed. 662, 2 Sup. Ct. Rep. 287.

There is no provision in the contract or ordinance, which requires the city to take or pay for water from Bullock & Company, except the stipulation for the rental of nine¬ ty-fire hydrants. In the absence of such agreement the city certainly had the right to supply itself and to build a plant for that purpose. If the city is to be denied such right under the Bullock contract, it is by implication, and implication alone, which this court has repeatedly held would not be permitted.

Stein v. Bienville Water Supply Co. 141 U. S. 67, 35 L. ed. 622, 11 Sup. Ct. Rep. 892; Hamilton Gaslight d Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Collins v. Sherman 31 Miss. 679; Gaines v. Coates, 51 Miss. 335; Freeport Wafer Co. v. Freeport, 180 U. S. 587, 45 L. ed. 679, 21 Sup. Ct. Rep. 493.

The exclusive feature is absolutely void, and does not preclude the city or anyone else, because the statute authorizing the city to provide a water supply, being general in its terms, did not empower the city council to grant to Bullock & Company any exclu¬ sive right and privilege.

Collins v. Sherman and Gaines v. Coates, supra ; Greenville Waterworks Co. v. Green¬ ville (Miss.) 7 So. 409.

A public-service corporation cannot sell and dispose of its property and franchises, and thus disable itself from performing the service for which it was created, except by the clearest and most explicit authority, conferred by charter or statute.

Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950; Oregon R. d Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837, 9 Sup. Ct. Rep. 400 ; Brunswick Gaslight Co. v. United Gas, Fuel, d Light Co. 85 Me. 532, 35 Am. St. Rep. 385, 27 Atl. 525; Com. v. Smith, 10 Allen, 448, 87 Am. Dec. 672; Chicago Gaslight d Coke Co. v. People’s Gaslight d Coke Co. 121 Ill. 530, 2 Am.

On the establishment and regulation of munic¬ ipal water supply — see note to State ex rel. Hallauer v. Gosnell, 61 L.R.A. 33.

As to the power of a court of equity to grant mandatory injunctions — see note to Mounds- vllle v. Ohio River R. Co. 20 L.R.A. 161.

1103

Supreme Court of the United States.

Oct. Term,

St. Rep. 124, 13 N. E. 169; Richardson v. Sibley, 11 Allen, 65, 87 Am. Dec. 700; Goe v. Columbus, P. & I. R. Go. 10 Ohio St. 372, 75 Am. Dec. 518; Susquehanna Canal Go. v. Bonham, 9 Watts & S. 27, 42 Am. Dec. 315; Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684; Gaines v. Coates, supra; New Albany Waterworks v. Louisville Blcg. Co. 58 C. C. A. 576, 122 Fed. 776;

Bacon v. Mississippi Ins. Co. 31 Miss. 116.

A right to amend a charter included the right to so amend the same as to take away the right of an exclusive franchise.

Hamilton Gaslight & Coke Co. v. Hamil¬ ton, supra.

The defendant in the case at bar was not, by the use of the word “exclusive” in the Bullock franchise, disabled from building a waterworks plant of its own.

Lehigh Water Co.’s Appeal, 102 Pa. 515; Walla Walla v. Walla Walla Water Co. 172 U. S'. 1, 43 L. ed. 341, 19 Sup. Ct. Rgp. 77; Helena Waterworks Co. v. Helena, 195 U. S. 383, 49 L. ed. 245, 25 Sup. Ct. Rep.

Grants of public franchises are always construed in favor of the public.

Stein v. Bienville Water Supply Co. and Freeport Water Co. v. Freeport, supra.

The authority conferred by the legisla¬ ture of the state did not authorize the city to grant an exclusive franchise.

Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921; Detroit Citizens’ Street R. Co. v. De¬ troit R. Co. 171 U. S. 48, 43 L. ed. 67, 18 Sup. Ct. Rep. 732; Saginaw Gaslight Co. v. Saginaw, 28 Fed. 529 ; Greenville Water¬ works Co. v. Greenville, Collins v. Sherman, and Gaines v. Coates, supra.

The question of whether or not grants like the one presented in the case at bar operate to exclude the city making them is one that has on several occasions been be¬ fore the courts of last resort, and it has in¬ variably been held that they do not.

Smith v. Westerly, 19 R. I. 437, 35 Atl. 526; Long v. Duluth, 49 Minn. 280, 32 Am. St. Rep. 547, 51 N. W. 913; Brenham v. Brenham Water Co. 67 Tex. 542, 4 S. W. 143; Syracuse Water Co. v. Syracuse, 116 N. Y. 167, 5 L.R.A. 546, 22 N. E. 381.

Ji may be urged that, while a general au¬ thority to make a grant will not support an exclusive grant, it nevertheless operates as an estoppel, and that, as applied to the case at bar, the city having attempted to grant to Bullock & Company an exclusive franchise, it is thereby estopped to set up its lack of authority to make such grant for the pur¬ pose of allowing itself to come in as a com¬ petitor; but the decisions of this and other courts are equally clear that such conten¬ tion is not maintainable.

1104

Sutro v. Pettit, 74 Cal. 332, 5 Am. St. Rep. 442, 16 Pac. 7 ; Dixon County v. Field, 111 U. S. 83, 28 L. ed. 360, 4 Sup. Ct. Rep. 315; Lake County v. Graham, 130 U. S. 674, 32 L. ed. 1065, 9 Sup. Qt. Rep. 654.

There is one other contention along this line, that may be set up by complainant, viz., that the authority given by the legisla¬ ture to the defendant was in the alterna¬ tive to supply itself with water, or to grant that privilege to another by contract, and, having adopted the latter, the city has thereby precluded itself. This was the Con¬ tention successfully set up in the United State circuit court, in the case of Westerly Waterworks v. Westerly, 75 Fed. 181, in Columbia Ave. Sav. Fund , S. D. Title & T. Co. v. Dawson, 130 Fed. 152; and in South¬ west Missouri Light Co. v. Joplin, 113 Fed.

But whatever weight and authority this line of decisions might have had was de¬ stroyed utterly by the decisions of this court in the eases of Skaneateles Water¬ works Co. v. Skaneateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400; Joplin v. Southwest Missouri Light Co. 191 U. S. 150, 48 L. ed. 127, 24 Sup. Ct. Rep. 43; and Helena Waterworks Co. v. Helena, supra.

A legislative grant to a corporal i of special privileges, if not forbidden by the Constitution, may be a contract; but where one of the conditions of the contract is that the legislature may alter or revoke it, a law altering or revoking, or which has the ef¬ fect to alter or revoke, the exclusive char¬ acter of such privileges, cannot be regarded as one impairing the obligation of the con¬ tract, whatever may be the motive of the legislature, or however harshly such legis¬ lation may operate, in the particular case, upon the corporation or parties affected by it. The corporation, by accepting the grant subject to the legislative power so reserved by the Constitution, must be held to have assented rto such reservation.

Greenwood v. Union Freight R. Co. 1C5 U. S. 13, 26 L. ed. 961; Oshkosh Water¬ works Co. v. Oshkosh, 187 U. S. 437, 47 L. ed. 249, 23 Sup. Ct. Rep. 234; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 47 L. ed. 887, 23 Sup. Ct. Rep. 531; Hamilton Gaslight d Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90.

The constitutional inhibition against im¬ pairing contract obligations is against the legislative branch of the government, not against the administrative.

New Orleans Waterworks Co. v. Louis¬ iana Sugar Ref. Co. 125 U. S. 18. 31 L. ed. 607, 8 Sup. Ct. Rep. 741.

The resolution complained of does not, and did not at the time, warrant the grant-

202 U. S.

Vicksburg v. Vicksburg Waterworks Co

ing of the injunction perpetuated in the final decree of the court below.

St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 45 L. ed. 788, 21 Sup. Ct. Rep.

It was held by this court at an early date that the judiciary could not in any manner interfere with the legislative or executive departments of the government either to restrain from action or to compel action by either, where any discretion is vested in either of the co-ordinates.

Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437 ; Cooley, Const. Lim. 5th ed. 254.

It was clearly error to allow the with¬ drawal of the petition, and the original bill in the nature of a supplemental bill.

Ross v. Ft. Wayne, 11 C. C. A. 288, 24 U. S. App. 113, 63 Fed. 466; Hazleton Tri¬ pod-Boiler Co. v. Citizens’ Street R. Co. 72 Fed. 327 ; 2 Bates, Fed. Eq. Proc. § 642,

p. 682.

It was error to overrule defendant’s mo¬ tion for leave to file its supplemental an¬ swer.

Pue v. Pue, 4 Md. Ch. 386; Hazleton Tripod-Boiler Co. v. Citizens’ Street R. Co. supra.

Messrs. L. W. Magruder, H. C. McCabe, and M. Dabney also filed a brief for ap¬ pellant :

The contract was not assignable.

Matlhevis v. Corporation Comrs. 97 Fed. 400; Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950; Gibbs v. Consoli¬ dated Gas Co. 130 U. S. 396, 32 L. ed. 979, 9 Sup. Ct. Rep. 553; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. Rep. 482; Norfolk & W. R. Co. v. Pendleton, 156 U. S. 667, 39 L. ed. 574, 15 Sup. Ct. Rep. 413; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; Brunswick Gas¬ light Co. v. United Gas, Fuel, & Light Co. 85 Me. 535, 35 Am. St. Rep. 385, 27 Atl, 525; Com. v. Smith, 10 Allen, 448, 87 Am. Dee. 672; Chicago Gaslight & Coke Co. v. People’s Gaslight & Coke Co. 121 Ill. 530, 2 Am. St. Rep. 124, 13 N. E. 169.

If the appellee corporation came into ex¬ istence under the Constitution of 1890 and the municipal charter from the state of Mis¬ sissippi enacted in 1892, it can exercise no powers and no rights which are prohibited by the Constitution and laws of Mississippi. Moreover, its charter was and is subject to alteration, repeal, or amendment, and has been amended by the act of 1904 above quoted. It cannot complain of any of these laws, which were in existence when it ac¬ cepted its charter. Its rights and privi¬ leges are fixed by these laws.

Hamilton Gaslight & Coke Co. v. Ham¬ ilton, 146 U. S. 268, 36 L. ed. 963, 13 Sup. 202 U. S.

Ct. Rep. 90; Norfolk & W. R. Co. v. Pen¬ dleton, supra; Griffin v. Goldsboro Water Co. 122 N. C. 206, 41 L.R.A. 240. 30 S. E. 319; Redlands, L. cC- C. Domestic Water Co. v. Redlands, 121 Cal. 365, 53 Pac. 843; Matthews v. Corporation Comrs, supra; Greenwood v. Union Freight R. Co. 105 U. S. 13, 26 L. ed. 961; Newburyport Water Co. v. Newburyport, 193 U. S. 562. 48 L. ed. 795, 24 Sup. Ct. Rep. 553; Stanis¬ laus County v. San Joaquin & K. River Canal & Irrig. Co. 192 U. S. 202, 48 L. ed. 406, 24 Sup. Ct. Rep. 241 ; Rogers , Park Water Co. v. Fergus, 180 U. S. 624 45 L. ed. 702, 21 Sup. Ct. Rep. 490; Win¬ chester & L. Tump. Road Co. v. Croxton, 98 Ky. 739, 33 L.R.A. 177, 34 S. W. 518; Yazoo <t- M. Valley R. Co. v. Adams, 180 U. S. 1, 26, 45 L. ed. 395, 408, 21 Sup. Ct. Rep. 240, 282; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77.

Unless it was plainly the intention of the state to authorize the city to make an exclusive grant, and unless that intent has been plainly expressed in the amendment of November 18, 1886, quoted above, the city had no power to make an exclusive grant. We insist that no such purpose was intend¬ ed or expressed.

Freeport Water Co. v. Freeport, ISO U. S. 587, 45 L. ed. 679, 21 Sup. Ct. Rep. 493; Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921; Greenville Watencorks Co. v. Greenville (Miss.) 7 So. 409; Collins v. Sherman, 31 Miss. 679; Gaines v. Coates, 51 Miss. 335; Detroit Citizens’ Street R. Co. v. Detroit R. Co. 171 U. S. 48, 43 L. ed. 67, 18 Sup. Ct. Rep. 732; Brenham v. Brenham Water Co. 67 Tex. 542, 4 S. W. 143 ; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 47 L. ed. 887, 23 Sup. Ct. Rep. 531; Helena Waterworks Co. v. Helena, 195 U. S. 383, 49 L. ed. 245, 25 Sup. Ct. Rep. 40; Long v. Duluth, 49 Minn. 290, 32 Am. St. Rep. 547, 51 N. W. 913; Ham¬ ilton Gaslight <& Coke Co. v. Hamilton, supra; Skaneateles Waterworks Co. v. Skan- eateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400; Smith v. Westerly, 19 R. I. 437, 35 Atl. 526; Rogers Park Water Co. v. Fergus and Walla Walla v. Walla Walla Water Co. supra: Saginaw Gaslight Co. v. Saginaw, 28 Fed. 529.

All doubts must be resolved in favor of the appellant and against the company.

Joplin v. Southwest Missouri Light Co. 191 U. S. 150, 48 L. ed. 127, 24 Sup. Ct. Rep. 43; Bienville Water Supply Co. v. Mo¬ bile, 175 U. S. 109, 44 L. ed. 92, 20 Sup. Ct. Rep. 40, 186 U. S. 212, 46 L. ed. 1132, 22 Sup. Ct. Rep. 820; Freeport Water Co. v. Freeport, supra.

In the exercise of their governmental

1105

Supreme Court of the United States.

Oct. Term,

45°

functions the appellants are subject to no direction and no control by the courts.

Cooley, Const. Lim. 5th ed. 255.

The court erred in proceeding to judg¬ ment without requiring the city Water¬ works & Light Company to be made a party to the suit, as asked by the appellant.

2 Bates, Fed. Eq. Pr. 642; Hazleton Tri¬ pod-Boiler Co. v. Citizens’ Street R. Co. 72 Fed. 327 ; Ross v. Ft. Wayne, 11 C. C. A. 288, 24 U. S. App. 113, 63 Fed. 466.

Messrs. S. S. Hudson, Murray F. Smith and J. Hirsh submitted the cause for appellee. Messrs. Hudson & Fox were on the brief :

Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77, disposes of any questions relating to the exclusiveness of this contract, so far as the city’s right to build its own waterworks is concerned.

Relief by mandatory injunction was prop¬ erly granted.

Gould, Waters, §§ 552, 553; Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497, 21 Sup. Ct. Rep. 331; Llano v. Llano County , 5 Tex. Civ. App. 132, 23 S. W. 1008.

The city’s right to make drains does not indicate the right to create a nuisance, pub¬ lic or private.

Richardson v. Boston, 19 How. 270, 15 L. ed. 642.

Even as to the District of Columbia it has been held that the adoption of a sewer system, being a quasi- judicial act, is not reviewable in a private action for damages; but the construction and repair of sewers being ministerial, the city is liable for dam¬ ages resulting from negligence therein.

Johnston v. District of Columbia, 118 U. S. 22, 30 L. ed. 77, 6 Sup. Ct. Rep.

Where a municipal corporation discharges or threatens to discharge sewage from the outlet of a permanent sewer, directly upon private lands, without having acquired the right so to do, the owner is entitled to the judgment of a court of equity restraining •the injury committed or threatened; and he is not confined to a recovery of his dam¬ ages in an action of trespass.

New York C. & H. R. R. Co. v. Rochester, 127 N. Y. 591, 28 N. E. 416.

One entitled to the use of air or water in its natural condition, and who is injured by its pollution, may maintain an action against the party causing it, whether an in¬ dividual or a corporation.

Chapman v. Rochester, 110 N. Y. 273,

1 L.R.A. 296, 6 Am. St. Rep., 366, 18 N. E.

Fquity will interpose, by mandatory In¬ junction, to compel the restoration of run-

1106

ning water to its natural channel, wlieu wrongfully diverted therefrom, at the suit of the party whose lands include either the whole or a part of sueh channel.

Corning v. Troy Iron d- Nail Factory, 40 N. Y. 191.

If a municipal corporation by its system of constructing sewers renders an outlet necessary, it must provide one.

Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; Crawfordsville v. Bond, 96 Ind. 236; Van Pelt v. Davenport, 42 Iowa, 308, 20 Am. Rep. 622; Byrnes v. Cohoes, 67 N. Y. 204; Ft. Wayne v. Coombs, 107 Ind. 75, 57 Am. Rep. 82, 7 S. W. 743.

Where the city undertakes to maintain a sewer, and thereby creates a private or a public nuisance, the city acts, not in a leg¬ islative or governmental, but in a ministe¬ rial, capacity, and is within the reach of the court.

Wood, Nuisances, pp. 1032, 1033, 1035.

If the contract was good in Bullock and his assignee for four long years, it has been unassailable in the subsequent gran¬ tee since the Constitution of 1890 was in force.

United States v. Union P. R. Co. 160 U. S. 1, 33, 40 L. ed. 319, 330, 16 Sup. Ct. Rep. 190.

Under reserved power to alter or amend a corporate charter, the legislature may make any alterations or amendments which do not defeat or substantially impair the ob¬ jects of the grant or rights vested there¬ under.

Holyoke Water Power Co. v. Lyman, 15 Wall. 522, 21 L. ed. 140; Close v. Glemcood Cemetery, 107 U. S. 476, 27 L. ed. 412, 2 Sup. Ct. Rep. 267; Maine C. R. Co. v. Maine, 96 U. S. 510, 511, 24 L. ed. 840, 841; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep. 437.

The city had power to make the con¬ tract.

Light, Heat , d Water Co. v. Jackson, 73 Miss. 598, 19 So. 771; Reid v. Trow¬ bridge, 78 Miss. 542, 29 So. 167.

Mr. Justice Day delivered the opinion of the court:

This case was before this court at the Oc¬ tober term, 1901, and is reported in 185 U. S. 65, 46 L. ed. 803, 22 Sup. Ct. Rep. 585. It was then here upon the question of juris¬ diction, and it was held that it presented a controversy arising under the Constitution of the United States, such as gave the cir¬ cuit court jurisdiction. There was no diver sity of citizenship, and the bill was filed by the Vicksburg Waterworks Company, a cor¬ poration of the state of Mississippi, against, the mayor and aldermen of the city of

202 V. S.

Vicksburg v. Vicksburg Waterworks Co.

458-460

Vicksburg, a municipal corporation of the same state. In view of the full statement of the contents of the bill and the amended bill in the case, as reported in 185 U. S., it is unnecessary to repeat it. On the pres¬ ent appeal a motion to dismiss or affirm was made, which was passed, to be heard with the merits. We regard the decision of this court, when the ease was here at the former term, as settling the question of jurisdic¬ tion, and affirmatively determining that, upon the bill and amended bill, the com¬ plainant alleged a case which involved the application of the Constitution of the Unit¬ ed States, and appealable to this court, within § 5 of the act of March 3, 1891, as amended. 26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549.

The suit was brought by the waterworks company, claiming an exclusive right, as against the city, under a contract with it for the construction and maintenance for a period of thirty years of a system of wa¬ terworks, which exclusive contract, it was alleged, would be practically destroyed if subjected to the competition of a system of waterworks to be erected by the city itself, which was in contemplation under authority of an act of the legislature of Mississippi, authorizing the mayor and aldermen of the city of Vicksburg to issue bonds to the

amount *of $375,000 to purchase or construct a waterworks system and a sewer system, and for certain other purposes. That act, among other things, required the vote of the electors of the city upon the question of is¬ suing bonds and constructing or buying waterworks; an election was held, and it was voted by a majority of the votes cast that the city should issue bonds to the sum of $150,000 to purchase or construct water¬ works for the city. A resolution was passed by the municipal authorities, instructing the mayor and aldermen to notify the water¬ works company that liability was denied upon the contract for the use of ttie water¬ works hydrants, and that from and after August, 1900, the city would pay a reason¬ able compensation for the use of said hy¬ drants. A bill was filed in the equity court in Warren county, Mississippi, averring that the original contract to which the wa¬ terworks company claimed to have succeed¬ ed was null and void; that the mayor and aldermen had exceeded their powers in mak¬ ing the contract for thirty years; that rates charged to consumers were exorbitant and illegal; that the mayor and aldermen, at a meeting held on November 5, 1900, had resolved that they no longer recognized any liability under said contract; that the Vicks¬ burg Water Supply Company (a former holder of said contract) and the complain¬ ant had no rights in said contract, and the 202 U. S.

city was entitled to have the same canceled and annulled. And it was held in 185 U.

S. that the facts, taken together, presented something more than a case of mere breagh of private contract and disclosed an inten¬ tion and attempt, by subsequent legislation of the city, to deprive the company of its rights under the existing contract, and it was said: “Unless the city can point to some inherent want of legal validity in the contract, or to some disregard by the wa¬ terworks company of its obligations under the contract as to warrant the city in de¬ claring itself absolved from the contract, the case presented by the bill is within the meaning of the Constitution of the United States and within the jurisdiction of the circuit court, as presenting a Federal ques¬ tion.” And it was further *held that it was

a valuable feature of equity jurisdiction to anticipate and prevent threatened injury, and the conclusion was reached that the al¬ legations of the bill made a case for an injunction. The case was thus brought within § 5 of the act of March, 1891, as one in which the appeal is directly to this court. See also upon this point Penn Mut.

L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct. Rep. 223. The motion to dismiss will be overruled.

Upon the case going back to the circuit court an answer was filed raising issues as to whether the complainant had accepted and performed the agreement in their con¬ tract to supply water to the city, and deny¬ ing the right of the complainant to have and to own the contract and the authority of the city to make an exclusive contract, and detailing other matters not necessary to fui ther set forth.

Certain questions of fact as to the char¬ acter of the water supplied by the com¬ plainant, the pressure maintained, and sim¬ ilar questions were decided by the circuit court in favor of the appellees. An exam¬ ination of the record makes it sufficient for us to say that we find no reason for disturb¬ ing the conclusions of the circuit court up¬ on these questions. ,

The decree in the case below was in favor of the waterworks company, maintaining its right to the contract for hydrant rentals, and enjoining the city, during the period of the contract, from constructing a water¬ works system of its own. and requiring the city to construct a sewer for the disposal of house sewage from the city.

The assignments of error necessary to be considered are:

below in permitting a corporation known as the City Waterworks & Light Company, which had intervened in tne case, to with¬ draw from the files its original bill in the

1107

460-463

Supreme Court of the United States.

Oct. Term,

nature of a supplemental bill, and striking out certain testimony which had been taken concerning the same.

in favor of the complainant, and restraining

the city from erecting waterworks of *its own during the term covered by the contract with the complainant.

sewer by the city.

We shall proceed to notice these in the or¬ der named.

The City Waterworks & Light Company, on December 2, 1903, filed its petition pray¬ ing to be admitted as a party complainant in the cause, and set up that it was the owner of the contract sued upon. To this petition the city answered, denying that the City Waterworks & Light Company had pur¬ chased, by deed or otherwise, or owned the property, real and personal, of the complain¬ ant, the Vicksburg Waterworks Company, and denying that the City Waterworks & Light Company had any interest in the subject-matter of the suit or should be ad¬ mitted as a party complainant therein. The City Waterworks & Light Company then filed its original bill in the nature of a supplemental bill, on May 5, 1904, after the city had denied that it had any interest in the suit. On May 13, 1904, it filed a motion asking leave to withdraw its petition and bill from the files, which motion was grant¬ ed by the court, and the motion of the Vicks¬ burg Waterworks Company to withdraw from the files its written consent to the filing of the bill was also sustained, and the court granted the withdrawal of the petition, bill, exhibits, and written consent. Thereupon the city offered a supplemental answer, and asked the court for leave to file the same. This answer made allegations setting forth the transfer of the contract to the City Waterworks & Light Company, and asked for a continuance of the cause, with leave to take testimony to support the averments of this supplemental answer. The court, on the same day, May 13, 1904, overruled the city's motion for leave to file the supple¬ mental answer and for continuance, with leave to take testimony in support thereof, and proceeded to hear the case upon the original pleadings and proofs. It also per¬ mitted the withdrawal of certain testi¬ mony referring to the City Waterworks & Light Company and the transfer of the con-

tract to it. In view of *the action of the court upon the pleadings, as to the City Waterworks & Light Contpany, this testi¬ mony had become immaterial.

In the action of the court just recited we can find no ground for a reversal. The City Waterworks & Light Company had come in¬ to the case claiming an ownership of the 1108

contract which was denied by the city; cer¬ tain testimony was filed concerning this claim of the company. We think it was dis¬ cretionary with the court to permit the withdrawal of these pleadings and the sup¬ pression of this testimony, and it was like¬ wise within its discretion to permit or deny a further answer by the city setting up the alleged transfer of ownership. These matters, except in cases of gross abuse of discretion, are within the control of the trial court. Chapman v. Barney, 129 U. S.

677, 681, 32 L. ed. 800, 801, 9 Sup. Ct. Rep.

426; Dean v. Mason, zO How. 198, 204, 15 L. ed. 876, 878.

The principal controversy in the case is as to the correctness of the decree of the court below restraining the city from erecting waterworks of its own within the period named in the contract, which decree pro¬ ceeded upon the theory that the city had ex¬ cluded itself from erecting or maintaining a system of water works >of its own during that period. The contract for the construc¬ tion of the waterworks was originally made on November 18, 1886, by an ordinance of that date, granting to Samuel R. Bullock & Company, their associates, successors, and assigns, the right and privilege to construct a waterworks system in the city of Vicks¬ burg, for the period of thirty years from the date of the ordinance. Section 1 of the or¬ dinance provided that, in consideration of the public benefit to be derived therefrom, the exclusive right and privilege was grant¬ ed for the period of thirty years from the time the ordinance took effect, to Samuel R. Bullock & Company, their associates, succes¬ sors, and assigns, to erect, maintain, and op¬ erate a system of waterworks in accordance with the terms of the ordinance, and of us¬ ing the streets, alleys, etc., within the cor¬ porate limits of the city, as they then ex¬ isted or might thereafter be extended, for the purpose of laying pipes and mains and other conduits, *and erecting hydrants and other

apparatus for the obtaining of a good water supply for the city of Vicksburg and for its inhabitants, for public and private use.

There was a stipulation for certain hydrants for the term of thirty years at an annual rental of $65.00 each, and it was provided that Bullock & Company, their associates, successors, and assigns, might procure the organization of a waterworks company, and assign their rights and privileges under the ordinance to such corporation. It is dis¬ closed in the record that Bullock & Com¬ pany procured the organization of a water¬ works company, the Vicksburg Water Sup¬ ply Company, which company executed a mortgage to the Farmers’ Loan & Trust Company of New York, which included “All of its real and personal property, goods,

202 U. 3.

Vicksburg v. Vicksburg Waterworks Co.

463-465

chattels, owned now or which may hereafter be acquired by it, including its land, rents, waterworks, buildings, pump houses, stand¬ pipes, reservoirs, machinery, pipes, mains, hydrants, apparatus, and equipments, sit¬ uated in the city of Vicksburg, county of Warren, state of Mississippi, together with all and singular the tenements, heredita¬ ments, and appurtenances thereunto belong¬ ing or in any wise appertaining, and the re¬ version and reversions, remainder and re¬ mainders, tolls, rents, issues, income, profits accruing therefrom; also all and singular the corporate franchises, privileges, rights, liabilites which the water company now has and can exercise, or shall hereafter acquire and possess, and also all the estate, right, title, interest, property, possessions, claim, and demand whatsoever, as well in law as in equity, of the water company, of and to the property above described or hereafter to be acquired, and each and every part and parcel thereof, with the appurtenances, to have and to hold all and singular the above granted and described premises with the appurtenances unto the trustee and its suc¬ cessors forever.” Upon the foreclosure of this mortgage the property was bid off by M. 0. Grumpier on the 8th day of August,

Waterworks Company, complainant in this case, and the Vicksburg Water Supply Com¬ pany on October 18, 1900, by a quitclaim 464] Meed, conveyed all the property d sscribed in the deed of trust to the Farmers’ Loan & Trust Company, to the Vicksburg Water¬ works Company.

A preliminary question is made that the Vicksburg Waterworks Company did not ac¬ quire title to the contract rights by virtue of these proceedings. But we are cited to an act of the legislature of Mississippi, ap¬ proved March 7, 1882 (Laws of 1882, p. 50), which, upon its face, is broad enough to authorize such corporations to borrow mon¬ ey and secure the payment of the same by mortgage or deed of trust upon their prop¬ erty and franchises, and we think the mort¬ gage in question would include the contract rights of the Vicksburg Water Supply Com¬ pany, and that they would pass by the sale and subsequent quitclaim deed to the Vicks¬ burg Waterworks Company. Where a com¬ pany is authorized to mortgage its fran¬ chises and rights, these may be sola and the purchaser acquire title thereto at the foreclosure sale, although the corporate right to exist may not be sold. Memphis & L. R. R. Go. v. Railroad Comrs. ( Memphis & L. R. R. Co. v. Berry ) 112 U. S. 609, 28 L. ed. 837, 5 Sup. Ct. Rep. 299. The power to mortgage the privileges and rights of the corporation must necessarily include the power to bring them 202 U. S.

to sale to make the mortgage effectual.

New Orleans, S. F. & L. R. Go. v. Delamore,

114 U. S. 501, 29 L. ed. 244, 5 Sup. Ct.

Rep. 1009, cited and followed in Julian v. Central Trust Co. 193 U. S. 93, 106, 48 L. ed. 629, 636, 24 Sup. Ct. Rep. 399. We think the mortgage in this case covered ana the decree passed the contract rights given originally to the Vicksburg Water Supply Company by the ordinance of. November 18,

It is further urged that the Vicksburg Waterworks Company was organized after the taking effect of the Constitution of Mis¬ sissippi of 1890, which provided: “Sec. 178. Corporations shall be formed under general laws only. The legislature shall have power to alter, amend, or repeal any charter of in¬ corporation now existing and revocable, and any that may hereafter be created, whenever, in its opinion, it may be for the public in¬ terests to do so; provided, however, that no injustice shall be done to the stockholders.”

And it is insisted that the subsequent legis¬ lative authority given to the city to issue bonds and *build its own waterworks amount- [465} ed to a repeal of the exclusive feature of the grant in the ordinance of 1886, if any it contained. We are cited in support of that proposition to tne case of Hamilton Gas¬ light & Coke Co. v. Hamilton, 146 U. S. 258,

36 L. ed. 963, 13 Sup. Ct. Rep. 90, consider¬ ing the provisions of the Constitution of Ohio as to altering or revoking corporate privileges. But we think the right of the Vicksburg Waterworks Company was ac¬ quired under the foreclosure and sale of the contract rights conferred in the or¬ dinance of 1886 and covered in the mort¬ gage, as we have stated. Furthermore, the Mississippi Constitution contains this pro¬ vision, which is not in the Ohio Constitution, considered in the Hamilton Case, namely: “Provided [in exercising the right of amend¬ ment or repeal of a charter] no injustice shall be done to the stockholders.” If it be true that the complainant below had a bind¬ ing contract excluding competition by the city in furnishing a water supply for a period of thirty years, we think it would be a palpable injustice to the stockholders to permit the competition of the city by new works of its own; which, whether operated profitably for the municipality or not, might be destructive of all successful operation in furnishing water to consumers by the pri¬ vate company.

Coming directly, then, to the question whether this is an exclusive contract, the question resolves itself into two branches.

Had the city the right to make a contract excluding itself? And, if so, has the con¬ tract now under consideration that effect.

The legislature of the state of Mississippi

1109

465-468

Supreme Court of the United States

Oct. Term,

on March 8, 1886, in the charter of the city of Vicksburg, among others, gave to the city the following powers: “To provide for the erection and maintenance of a system of waterworks to supply said city with water, and to that end to contract with a party or parties who shall build and operate water¬ works.” The question is now, not whether the city might make a contract giving the exclusive right as against all third persons to erect a system of waterworks, but wheth¬ er it can, in exercising this legislative pow¬ er, exclude itself from constructing and op¬ erating waterworks for the period of years

covered by the contract. It is *said the su¬ preme court of Mississippi has denied this power, and we are referred to Collins v. Sherman, 31 Miss. 679, Gains v. Coates, 51 Miss. 335, and Greenville Waterworks Co. v. Greenville (Miss.) 7 So. 409.

We do not think any of these cases de¬ cisive of the point. In Collins v. Sherman, it was held that the charter granting the right to a turnpike and ferry company to maintain a ferry upon a particular river, which contained no grant of an exclusive right, did not prevent the legislature from afterwards incorporating another company, authorized to establish a turnpike and ferry upon the same river and upon the same line of travel, although the establishment of the latter company might materially impair the value of the franchise granted to the first company. The cases were cited and the gen¬ eral principles stated that exclusive privi¬ leges could not be granted by implication; there was no attempt to make the first fran¬ chise exclusive in that case. In Gaines v. Coates it was held that the act in question did not confer upon a certain corporation the exclusive privilege of weighing cotton ; that there was nothing in the charter indi¬ cating any intention to confer an exclusive right, and many cases were cited, includ¬ ing a number from this court, to the effect that exclusive privileges are not to be grant¬ ed by implication. In Greenville Water¬ works Co. v. Greenville the city of Green¬ ville had made a contract with the Green¬ ville Waterworks Company to build a sys¬ tem of waterworks by a certain time, but the company had failed to comply with the contract, the time was extended, and the company again defaulted. The city there¬ upon canceled the contract and made a new contract with the Delta Waterworks Com¬ pany. Then the Green, ille Waterworks Company filed a bill to enjoin the city and the other company from carrying out the contract, and prayed for a specific perform¬ ance of it3 contract with the city. The court held that there was no power given by the charter of the city of Greenville to grant a monopoly for a long series of years 1110

for supplying the city and its inhabitants with water. The question whether the city could *exclude itself in such a contract as

we have now before ps was not met or passed upon. But if the doctrine of Miss¬ issippi were otherwise, and with due respect to which the decisions of its highest court are justly entitled, it has been frequently held, in passing upon a question of contract, in circumstances such as exist in this case involving the constitutional protection af¬ forded by the Constitution of the United States, this court determines the nature and character thereof for itself. Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199. And we think the ques¬ tion of the power of the city to exclude it¬ self from competition is controlled in this court by the case of Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341,

19 Sup. Ct. Rep. 77. In that case the city charter of Walla Walla provided, § 10, that no exclusive grant should be made, nor should prevent the council from granting the right to others; and § 11 provided: “The city of Walla Walla shall have power to erect and maintain waterworks within or without the city limits, or to authorize the erection of the same for the purpose of furnishing the city, or the inhabitants thereof, with a sufficient supply of water.”

The contract was made for twenty-five years.

The grant was not made exclusive to the waterworks company, but the city agreed not to erect waterworks of its own, and re¬ served the right to take, condemn, and pay for the works of the company at any time after the expiration of the contract. It was held by this court that the city might thus exclude itself from competition during the period of the contract, and of this fea¬ ture of the contract the following pertinent language was used by Mr. Justice Brown, who delivered the opinion of the court:

“An agreement of this kind was a natu¬ ral incident to the main purpose of the con¬ tract, to the power given to the city by its charter to provide a sufficient supply of water, and to grant the right to use the streets of the city for the purpose of laying water pipes to any persons or association of persons for a term not exceeding twenty- five years. In establishing a system of wa¬ terworks the company would necessarily in¬ cur a large expense in the construction of the power house and the *laving of its pipes

through the streets, and, as the life of the contract was limited to twenty-five years, it would naturally desire to protect itself from competition as far as possible, and would have a right to expect that at least the city would not itself enter into such competition.”

“Cases are not infrequent where, under a

202 U. S.

VICKSBURG V. VICKSBURG WATERWORKS CO.

408-470

general power to cause the streets of a city to be lighted or to furnish its inhabitants with a supply of water, without limitation as to time, it has been held that the city has no right to grant an exclusive fran¬ chise for a period of years ; but these cases do not touch upon the question how tar the city, in the exercise of an undoubted power to make a particular contract, can hedge it about with limitations designed to do little more than bind the city to carry out the contract in good faith and with decent re¬ gard for the rights of the other party.”

In the Walla Walla Case the same general power to make the contract existed. There was an express provision against making an exclusive contract, and this court held that for the period mentioned in the contract, and as incident to the protection of the rights of the contractor, the city might ex¬ clude itself from competition. We think that case is decisive of the present one on this proposition.

We shall proceed to consider whether the language of the contract is such as to pre¬ vent the city, during the period named therein, from erecting a waterworks of its own.

The ease of Lehigh Water Co.’s Appeal, 102 Pa. 515, cited by counsel for appel¬ lant, is not in point. The act provided “the right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its char¬ ter shall be an exclusive one ; and no other company shall be incorporated for that pur¬ pose until the said corporation shall have, from its earnings, realized and divided among its stockholders, during five years, a di\ :d equal to 8 per centum per annum upon its capital stock.” Of this grant Mr. Justice Paxon, who delivered the opinion of the court, observed:

*“While the language from the act of 1874, above quoted, would seem to favor the ex¬ clusive right claimed by the water company, a careful examination of clause 3 of § 34 shows that the legislature intended that the right should be exclusive only as against other water companies; for, immediately in this connection, occur the words ‘and no other company shall be incorporated for that purpose until the said corporation shall have, from its earnings, realized and di¬ vided among its stockholders, during five years, a dividend equal to 8 per centum per annum upon its capital stock.’ The provi¬ sion that another company shall not be in¬ corporated was not intended to prohibit a city or borough from providing its citizens with pure water by means of works con- Btructed by itself from money in its own treasury.”

In considering this contract we are to

202 U. S.

remember the well-established rule in this court which requires grants of franchises and special privileges to be most strongly construed in favor of the public, and that, where the privilege claimed is doubtful, noth¬ ing is to be taken by mere implication as against public rights. This rule has been applied to a series of contracts in water¬ works and lighting cases, and we have no disposition to detract from its force and effect. And unless the city has excluded it¬ self in plain and explicit terms from com¬ petition with the waterworks company dur¬ ing the period of this contract, it cannot be held to have done so by mere implication.

The rule, as applied to waterworks con¬ tracts, was last announced in this court in Knoxville Water Co. v. Knoxville, 200 U.

S. 22, ante, 353, 26 Sup. Ct. Rep. 224, de¬ cided at this term, citing previous cases.

The contract in the respect under consid¬ eration is found in § 1 of the ordinance, and undertakes to give to Bullock & Company, their associates, successors, and assigns, the exclusive right and privilege, for the period of thirty years from the time the ordinance takes effect, of erecting, maintaining, and operating a system of waterworks, with cer¬ tain privileges named, for the furnishing of a supply of good water to the city of Vicks¬ burg and its inhabitants, for public and private use.

“Without resorting to implication or in-

serting anything by way of intendment in¬ to this contract, it undertakes to give by its terms to Bullock & Company, their asso¬ ciates, successors, and assigns, the exclu¬ sive right to erect, maintain, and operate waterworks, for a definite term, to supply water for public and private use. These are the words of the contract and the question upon this branch of the case is, conceding the power of the city to exclude itself from competition with the grantee of these privi¬ leges during the period named, has it done so by the express terms used? It has con¬ tracted with the company in language which is unmistakable, that the rights and privileges named and granted shall be ex¬ clusive. Consistently with this grant, can the city submit the grantee to what may be the ruinous competition of a system of waterworks to be owned and managed by the city, to supply the needs, public and pri¬ vate, covered in the grant of privileges to the grantee? It needs no argument to dem¬ onstrate, as was pointed out in the Walla Walla Case, that the competition of the city may be far more destructive than that of a private company. The city may conduct the business without regard to the profit to be gained, as it may resort to public taxation to make up for losses. A private company would be compelled to meet the

•vj.111

470-473

Supreme Court of the United States.

grantee upon different terms, and would not likely conduct the business unless it could be made profitable. We cannot conceive how the right can be exclusive, and the city have the right, at the same time, to erect and maintain a system of waterworks which may, and probably would, practically destroy the value of rights and privileges conferred in its grant. If the right is to be exclusive, as the city has contracted that it shall be, it cannot, at the same time, be shared with another; particularly so when such division of occupation is against the will of the one entitled to exercise /’the rights alone. It is difficult to conceive of words more apt to express the purpose that the company shall have the undivided occu¬ pancy of the field so far as the other con¬ tracting party is concerned.

The term “exclusive” is so plain that

little additional light *can be gained by re¬ sort to the lexicons. If we turn to the Century dictionary we find it defined to mean “Appertaining to the subject alone; not including, admitting, or pertaining to any other or others; undivided; sole: as, an exclusive right or privilege; exclusive jurisdiction.” We think, therefore, It re¬ quires no resort to implication or intend¬ ment in order to give a construction to this phase of the contract; but, on. the other hand, the city has provided and the com¬ pany has accepted a grant which says in plain and apt words that it shall have an ex¬ clusive right, — a sole and undivided privi¬ lege. To hold otherwise, in our view, would do violence to the plain words of the con¬ tract, and permit one of the contracting parties to destroy and defeat the enjoy¬ ment of a right which has been granted in plain and unmistakable terms. On the au¬ thority of the Walla Walla Case, the city had the power to exclude itself for the term of this contract, giving the words used only the weight to which they are entitled, without strained or unusual construction, and we think it was distinctly agreed that, for the term named, the right of furnish¬ ing water to the inhabitants of Vicksburg under the terms of the ordinance was vested solely in the grantee, so far, at least, as the city’s right to compete is concerned. Any other construction seems to us to ignore the language employed, and to permit one of the parties to the contract to destroy its benefit to the other. We think the court below did not err in reaching this conclusion.

The court decreed as to a sewer, which the record discloses was originally a sur¬ face-water sewer, that the city should re¬ frain from permitting future connections therewith for the conveyance of house sew¬ age. The company complaining that this 1112

Oct. Term,

sewer enterel into the source of - upply above the intake of the waterworks, the' court, by a mandatory injunction, required the city of Vicksburg to extend the sewer and construct an outlet therefor, so as to dis¬ charge sewage into the Yazoo or Missis¬ sippi river, below the intake of the com¬ plainant, provided, if the city was unable to construct such sewer within *twelve

months from date, application might be made to the court for an extension of time.

The error assigned in this behalf is as to the award of the mandatory injunction.

We think the court erred in this respect, and that it had no authority to issue a man¬ datory injunction requiring the city to con¬ struct a sewer, irrespective of the exercise of discretion vested by law in the municipal authorities to determine the practicability of the sewer ordered, the availability of tax¬ ation for the purpose, and the like matters; and we think that the exercise of this au¬ thority is primarily vested in the munici¬ pality, and not in the courts.

We find no error in the decree of the Circuit Court enforcing the contract rights of the complainant and enjoining the city from erecting its own works during the term of the contract, but error in granting a mandatory injunction as to the sewer, and in that respect the decree will he modi¬ fied, and, as so modified, affirmed.

Mr. Justice Harlan, dissenting:

I cannot agree to the opinion and judg¬ ment in this case.

In my opinion, the city of Vicksburg had no authority, under the Constitution and laws of Mississippi, to give an exclusive right to any person or corporation to main¬ tain a system of waterworks for the oene- fit of that city and its people.

But if I am wrong in this view, it ought not, in my judgment, to be held upon the present record that the city has, by or¬ dinance or otherwise, precluded itself from establishing and maintaining, at its own ex¬ pense, a system of waterworks for the bene¬ fit of its people. The contrary cannot be maintained, unless we hold that a munici¬ pal corporation may, by mere implication, bargain away its duty to protect the public health and the public safety as they are involved in supplying the people with suffi¬ cient water. Nothing can be more impor¬ tant or vital to any people than that they should be supplied with *pure, wholesome

water. And yet it is now held that it was competent for the city of Vicksburg, by mere implication, to so tie its hands that it cannot perform the duty which it owes in that regard to its people.

202 V. S.

Naganab v. Hitchcock.

473-475