Henry Billings Brown

“ The argument that the contract is void as an attempt to barter away the legislative power of the city council rests upon the assumption that contracts for supplying a city with water are within the police power of the city, and may be controlled, managed, or abrogated at the pleasure of the council. This court has doubtless held that the police power is one which remains constantly under the control of the legislative authority, and that a city council can neither bind itself nor its successors to contracts prejudicial to the peace, good order, health, or morals of its inhabitants ”

“ But where a contract for a supply of water is innocuous in itself, and is carried out with due regard to the good order of the city and the health of its inhabitants, the aid of the police power cannot be invoked to abrogate or impair it. ”

“ A different construction might be disastrous to the interests of the city, since it is obviously debarred from purchasing or establishing a plant of its own exceeding in value the limited amount, and is forced to contract with some company which is willing to incur the large expense necessary in erecting water works upon the faith of the city paying its annual rentals. ”

“ This court has repeatedly declared in affirmance of the generally accepted proposition that the remedy at law, in order to exclude a concurrent remedy at equity, must be as complete, as practical, and as efficient to the ends of justice and its prompt administration, as the remedy in equity. ”

“ It may be conceded, as a general proposition, that there is a substantial distinction between the acts of a municipality as the agent of the state, for the preservation of peace and the protection of persons and property, and its acts as the agent of its citizens, for the care and improvement of the public property, and the adaptation of the city for the purposes of residence and business. ”

“ It is sought to carry this distinction a step further, and to hold that, if a contract be made by a city in its proprietary capacity, the question whether such contract has been substantially affected by the subsequent action of the city does not present one of impairment by act of the state or its authorized agent, but one of an ordinary breach of contract by a private party, and hence the case does not arise under the constitution and laws of the United States, and the court has no jurisdiction, unless there be the requisite diversity of citizenship. ”

“ We do not say that this question might not become a serious one; that, with respect to a particular contract, the municipality might not stand in the character of a private corporation; but the cases wherein the charter of a gas or water company have been treated as falling within the constitutional provision are altogether too numerous to be now questioned, or even to justify citation. ”

“ The cases relied upon by the appellant are no authority for the position assumed, that the federal court has no jurisdiction of a case wherein the charter of a water company is alleged to have been impaired by subsequent legislation. ”

“ The objection is founded upon section 105 of the charter, which enacts 'that the limit of indebtedness of the city of Walla Walla is hereby fixed at fifty thousand dollars,' and upon the allegation in the bill that the city at the date of the contract was indebted in a sum exceeding $16,000. The city, by section 5 of its ordinance and contract with the water company, agreed to pay a rental of $1,500 per annum for 25 years, or an aggregate amount of $37,500, which , added to the existing indebtedness of $16,000, would create a debt exceeding the limited amount of $50,000. ”

“ For all purposes necessary to the exercise of their corporate powers they are at liberty to make contracts, regardless of the statutory limitation, provided, at least, that the amount to be raised each year does not exceed the indebtedness allowed by the charter. Among these purposes is the prevention of fires, the purchase of fire engines, the pay of firemen, and the supply of water by the payment of annual rentals therefor. ”

“ It was held that under this power the village had the right to prohibit the carrying of dead animals or offensive matter through the streets; that the charter of the company was a sufficient license until revoked, but was not a contract guarantying that the company might continue to carry on a business which had become a nuisance by the growth of population around its works, or that it should be exempt for 50 years from an exercise of the police power of the state,-citing Coates v. ”