A decree must be read in the light of the issues involved in the
pleadings and the relief sought, and a decree in a suit brought by
a water company against a municipality to enjoin it from regulating
rates does not finally dispose of the right of the city to regulate
rates under a law passed after the contract went into effect and
after the bill was filed.
A state may, in matters of proprietary rights, exclude itself
and authorize its municipal corporations to exclude themselves from
the right of regulation of such matters as water rates.
In view of the decisions of the highest court of Mississippi, a
municipality of that state may, under a broad grant of legislative
authority conferred without restriction or conditions, make a
contract with a corporation fixing a maximum rate at which water
should be supplied to the inhabitants
Page 206 U. S. 497
of the city for a limited period, which, in the absence of fraud
or convention, will be beyond legislative or municipal power to
alter to the prejudice of the other contracting party under the
impairment of obligation clause of the federal Constitution.
Cases involving the rights of the Vicksburg Waterworks Company,
under the contract made between the City of Vicksburg and the
company, for furnishing the water supply of the city, have been
before this Court in two preceding actions,
viz., Vicksburg
Waterworks Co. v. Vicksburg, 185 U. S. 65, and
Same v. Same, 202 U. S. 453.
Owing to the previous statements of the case, it is only
necessary to set out enough of the facts involved in the
controversy now before us to make plain the conclusions at which we
arrive.
The City of Vicksburg, by act of the Legislature of Mississippi
(Laws of 1886, c. 358, § 5, p. 695), was authorized
"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
waterworks."
Acting under this authority conferred by the legislature, the
City of Vicksburg made a contract with Samuel R. Bullock &
Company, their associates and assigns, for the supply of water to
the city and its inhabitants, which was contained in the ordinance
of November 18, 1886, § 13 thereof providing that --
"The said Samuel R. Bullock & Company, their associates,
successors, or assigns, shall have the right to make all needful
rules and regulations governing the consumption of water, the
tapping of pipes, and general operation of the works, and to make
such rates and charges for the use of said water as they may
determine, provided that such rates and charges shall not exceed 50
cents for each thousand gallons of water."
The ordinance, by its terms, ran for thirty years, and Bullock
& Company, as provided in section 5 of the ordinance, assigned
the contract to the Vicksburg Water Supply Company,
Page 206 U. S. 498
and it was duly accepted by that company. The supply company put
in the works and operated until August, 1900, when the mortgage
upon the property, including all the franchises and contract
rights, was foreclosed and purchased by a Mr. Crumpler, who
assigned all his rights and title to the Vicksburg Waterworks
Company, the appellee herein, which company has operated the works
since.
The contract contained an agreement to pay a stipulated rental
for certain hydrants for public use.
The Legislature of Mississippi, on March 18, 1900, passed an act
authorizing the city to issue bonds and build a waterworks system
of its own for the supply of the city and its inhabitants, and on
the third of July, 1900, an election was held in the city under the
statute, which resulted in a vote to build or buy a waterworks
plant of its own.
The city repudiated any contract relations with the company.
Thereupon the company filed its bill in the United States Circuit
Court for the District of Mississippi on the fourteenth day of
February, 1901, the objects of which were thus stated by Mr.
Justice Shiras, in delivering the opinion of the Court (185 U.S.
65):
"The bill prays for an injunction to restrain the defendant from
assuming to abrogate and take away the franchises and contract
rights of the complainant, and from attempting to coerce the
company to sell its works to the defendant for an inadequate price,
and that said act of the Legislature of Mississippi, adopted on
March 9, 1900, and said resolution and ordinance adopted and passed
by said city on the seventh day of November, 1900, be declared to
impair the obligations of said contract between said city and said
Bullock & Company and their assigns, and to cast a cloud upon
the title, franchises, and rights of complainant, and said act,
ordinance, and resolution, and each of them, are alleged to be in
contravention of the Constitution of the United States in this:
that they impair the obligations of said contract between said city
and said Bullick & Company and their assigns. "
Page 206 U. S. 499
In the court of original jurisdiction, the bill was dismissed
for want of jurisdiction. On appeal,
185 U. S. 185 U.S.
65, the judgment was reversed, and this Court held that there was
jurisdiction, and the cause was remanded. The case went to trial
upon its merits, and on May 18, 1904, a final decree was rendered,
which was affirmed on appeal to this Court in the case reported in
202 U. S. 202 U.S.
453. The decree in that case, known in the record as No. 41, is
given in the margin. [
Footnote
1]
Page 206 U. S. 500
During the pendency of the original action, the Legislature of
Mississippi passed an act authorizing the cities and villages of
the state to prescribe, by ordinance, maximum rates and charges for
the supply of water, electric light, and gas furnished to cities
and the inhabitants thereof. Laws of Mississippi 1904, p. 231.
Section 1 of this act is inserted in the margin. [
Footnote 2]
Page 206 U. S. 501
On April 20, 1904, about one month before the rendition of the
final decree in the original case, the city adopted two ordinances
fixing the maximum charge for the use of water, one by what is
known as the "flat rate" and the other for water measured by
meters.
On December 7, 1903, the city passed an ordinance prohibiting
the water company and gas company from charging damages and other
penalties for failure to pay bills, until ten days after presenting
the same, and giving an opportunity for the payment thereof.
On the seventh of January, 1905, the water company, in view of
this action by the city, filed another bill, which is the original
bill in this case, and was numbered 79, in which it set forth the
preceding history of the litigation, the decree of May 18, 1904,
the city ordinance of December 7, 1903, and the two of April 20,
1904, and in that bill alleged its contract under the ordinance of
1886 and the former decree, and that the enforcement of the
ordinances was in violation of that decree and the company's
contract of 1886, and would be destructive of its business, and
they prayed for an injunction. A temporary injunction was allowed,
and afterwards, the case standing on the bill, answer, and exhibits
attached thereto, a final decree was rendered in the case, which
final decree is set forth in the margin. [
Footnote 3]
From this decree the present appeal has been prosecuted.
Page 206 U. S. 506
MR. JUSTICE DAY delivered the opinion of the Court.
It is contended on behalf of the appellee that the original
decree of May 18, 1904, finally disposed of all the issues between
the parties, including the right of the city to make rates for
water consumption to private consumers under the authority of the
Act of March 19, 1904, and that the present controversy is
foreclosed by the decree in the former case.
While it is true that the decree is very broad, we cannot agree
to the contention of the appellee that it finally disposed of the
matter now in controversy. When the case was first here, reported
in
185 U. S. 185 U.S.
65, while there are expressions in the opinion affirming the
validity of the contract and the authority of the city to make it,
the issue really decided was as to the jurisdiction of the court as
a federal court, which was sustained, and the cause remanded for
further proceedings. Upon the second hearing of the case, and the
appeal here, the opinion shows that the adjudication was regarded
as settling the right of the Vicksburg Waterworks Company, under
the contract, to carry on its business without the competition of
works to be built by the city itself, as the city had lawfully
excluded itself from the right of competition, and it was further
held, as incidental to that controversy, in passing upon an issue
made in the suit, that the Vicksburg Waterworks Company had
succeeded to all the right, title, and interest of the original
contracting party, and that the contract, having been made prior to
the Constitution of 1890, was not controlled by its provisions. The
right to recover for rentals was also directly involved, as the
city had denied its liability therefor, and an accounting was
prayed in the original bill, and the decree specifically disposed
of that issue. It is true that, in the answer, it was averred that
the alleged contract imposed upon the inhabitants of Vicksburg an
onerous
Page 206 U. S. 507
and extortionate burden;
"that no such contract would now be made with the Vicksburg
Waterworks Company or any other company; that the rates authorized
in said ordinance far exceeded the rates charged in other cities
under like circumstances, and, in general terms,"
the city denied that it was bound to the complainant by
contract; "that, for the many reasons therein set forth, no
liability existed on the part of the city by reason of the
contract."
An examination of the record in the former case shows that the
only testimony taken in the case as to the reasonableness of the
rates charged to private consumers was on behalf of the company,
and tended to show that the rates charged were reasonable, and if
it could be said that the pleadings put in issue the reasonableness
of the rates then charged, was the right of the city to regulate
rates under a subsequent law of the state necessarily involved and
concluded? The determination of issues as to the right of
injunction against the city's building its own works, or denying
liability or refusing to pay the rentals contracted for, and a
finding that existing rates were reasonable, did not necessarily
conclude a controversy which might thereafter arise as to the right
of the city to fix rates when the Legislature of Mississippi should
pass a law for that purpose, giving the city the right to regulate
the same. It is to be remembered that, when the bill was filed in
the original case, no such law had been passed; that, when the Act
of March, 1904, went into effect, the case was nearly ready for
final decree, and the city passed its ordinances long after the
beginning of the suit, an shortly before that decree. No
supplemental bill was filed, but after the decree, in January,
1905, the present independent suit was brought, with a view to
enjoining the proposed action of the city in enforcing ordinances
regulating the rates by charges other than those contained in the
contract.
Upon the appeal, the question seems to have been argued by the
city as though made in the case, though the brief on behalf of the
appellee contends that the act of 1904 was not
Page 206 U. S. 508
involved. But a decree must be read in the light of the issues
involved in the pleadings and the relief sought, and we are of
opinion that the matters now litigated were not involved in or
disposed of in the former case, and that, when properly construed,
the decree does not finally dispose of the right of the city to
regulate rates under a law passed after the contract went into
effect, and long after the bill was filed in the case.
Holding, then, that the plea of
res judicata must be
denied, had the city authority, under the charter of Vicksburg,
passed in 1886, to make a binding contract, fixing maximum rates
for water supply to private consumers for a definite period, thirty
years in the present case? The grant of legislative power upon its
face is unrestricted, and authorizes the city
"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
waterworks."
That a state may, in matters of proprietary rights, exclude
itself from the right to make regulations of this kind, or
authorize municipal corporations to do so, when the power is
clearly conferred, has been too frequently declared to admit of
doubt.
Los Angeles v. Los Angeles City Water Co.,
177 U. S. 558;
Walla Walla v. Walla Walla Water Co., 172 U. S.
1,
172 U. S. 7;
New Orleans Waterworks Co. v. Rivers, 115 U.
S. 674;
Freeport Water Co. v. Freeport,
180 U. S. 587,
180 U. S.
593.
In the latter case, this Court, following the construction of
the Supreme Court of Illinois, held that where a city council was
authorized to contract with any person or corporation to construct
and maintain waterworks at such a rate as may be fixed by ordinance
for a period not exceeding thirty years, the words "fixed by
ordinance" being capable of application so as to make one ordinance
endure for the period of thirty years, for which the contract was
made, or to give the right to pass ordinances from time to time
regulating rates, the latter construction was adopted.
Page 206 U. S. 509
In the cases generally in this Court, it will be found that, in
determining the matter of contract, the local decisions have been
given much weight and, ordinarily, followed. As this is a
Mississippi contract, and the power was exercised under the
authority of an act of the legislature of that state, we naturally
look to the decisions of the courts of that state, particularly to
such as had given construction to similar charters at the time the
contract was made, with a view to determining the extent of the
power conferred.
While the case now before us was pending, Griffith and others,
citizens of Vicksburg, filed a bill, setting forth the city
ordinances of 1903 and 1904, and asking to have them established
and maintained and an injunction granted against enforcing charges
for higher rates, and, upon appeal, the case went to the Supreme
Court of Mississippi, and is reported in 40 So. 1011. In that case,
the Supreme Court of Mississippi held that the municipal
corporation represented the citizens and taxpayers of the city, and
that, where a right had been adjudged as between the company and
the city, it would conclude private citizens, and while the court
declined to pass directly upon the question here involved, because
of its pendency in the federal courts, it used this pertinent and
suggestive language:
"We decline to follow the decision in
Griffin v. Goldsboro
Water Company, 122 N.C. 206, in holding that, while a water
company which accepts an ordinance by which a maximum rate is fixed
is bound, and cannot exceed the same because of its contract, yet
such rates are not binding upon consumers, who have a right to
litigate against unreasonable charges. This holding, it seems to
us, practically denies the power of a company, under a contract
embodied in its charter giving the power, so to fix a rate as to
bind a private consumer at all. It opens a never-ending and
limitless field of litigation. It is well settled that the courts
cannot fix a rate, and if, proceeding duly under statutes enacted
for that purpose, the municipality cannot do so, or authorize the
company
Page 206 U. S. 510
by contract to do so, and thereby bind the citizens, then there
is no authority by which it can be done."
"It is not a matter open to serious discussion in this state
since the decision by this Court in the case of
Stone v.
Railroad Company, 62 Miss. 607, decided at the April term,
1885, and before the act of 1886 (Laws 1886, p. 694, c. 358),
amending the charter of Vicksburg, was enacted, that a
quasi-public corporation may have a contract right to fix
rates within a certain designated maximum, and that the rates so
fixed are matter of contract, guaranteed by the contract clauses of
the United States Constitution. In that decision, the court was
manifestly directing it observations to the binding character of
the rates as between the company and the shippers; otherwise, the
decision was practically meaningless and without point. The
philosophy of the situation is simple. Granting that the company is
lawfully invested with authority to fix its rate, then such rate
being so fixed by it within the maximum limit allowed by the
charter, or allowed by the duly authorized ordinance, is by the
courts presumed to be reasonable, and it is not permissible for
each individual citizen, in every controversy that may arise, to
have that question, once passed upon by the lawfully constituted
public authorities charged with power in the premises, reopened and
litigated anew."
The case to which the court refers in the preceding extract,
Stone v. Railroad Company, 62 Miss. 607, as having been
decided prior to the enactment of the charter of Vicksburg under
which the contract in question was made, did not directly involve
the question of authorizing municipal corporations to make such
contracts, but did maintain, after an exhaustive consideration of
the subject, that a grant to a railroad company, in the charter, of
a right to fix rates within maximum limits named, was a contract,
within the meaning of the federal and state constitutions, which
could not be violated by a subsequent attempt to prescribe
different rates, and held that the railroad company's grant was not
a renunciation
Page 206 U. S. 511
of the legislative power to secure reasonable rates, but rather
an exercise of that power, and, when rights were thus conferred, to
that extent there was a renunciation of the right of the state to
control the subject. In the course of the discussion, the learned
judge, speaking for the court, said:
"The power to contract is an essential attribute of sovereignty,
and is of prime importance. Its exercise has been productive of
incalculable benefits to society, however great may be the evils
incident to its injudicious employment. It cannot be denied merely
because of its liability to abuse. The power to contract implies
the power to make a valid contract. . . . The right to grant
charters includes the right to grant such as will be upheld.
Conferring power on the grantee of the franchise to fix rates of
compensation at discretion, or within prescribed limits fixed by
the charter, has been the common practice of the legislatures of
the states of the United States from an early period of their
history. The fight of the corporators to exercise the powers
conferred by the act of incorporation, whether to fix rates
themselves or to take those fixed by their charter, and to rest
securely on its provisions in this respect, has hitherto been
generally regarded as indisputable."
"A grant in general terms of authority to fix rates is not a
renunciation of the right of legislative control so as to secure
reasonable rates. Such a grant evinces merely a purpose to confer
power to exact compensation which shall be just and
reasonable."
"
* * * *"
"If the grant can be interpreted without ascribing to the
legislature an intent to part with any power, it will be done. Only
what is plainly parted with is gone. Fixing rates in a charter is a
specification of what is reasonable -- an exclusion of tacit or
implied conditions on the subject. It is an essential part of the
contract of incorporation, the most important condition of its
existence, the inducing cause of its acceptance. "
Page 206 U. S. 512
We are referred to other cases in Mississippi which deal
directly with the extent of the power conferred upon municipal
corporations in charters in general terms, some of which we may
notice.
In
Light, Heat & Water Company v. Jackson, 73 Miss.
598, the City of Jackson had filed its bill undertaking to annul a
contract binding the city to pay for water for a period of twenty
years at a price and rate fixed in a certain ordinance on the
ground that it was
ultra vires and without authority from
the legislature. In that case, the authority conferred was in
general terms, authorizing the city to contract with any reliable
corporation, association, or individual for supplying the City of
Jackson with water and electric or gas lights from year to year.
Under authority of this general power, the city undertook to make a
contract with the Light, Heat & Power Company of Jackson,
contracting for the furnishing of water to the public at certain
annual rentals for a period of twenty years, and fixing a certain
rate for annual rentals to private consumers. The Supreme Court of
Mississippi dealt directly with the question: was the contract made
between the city and company, and set forth in the bill, invalid
for want of power in the city to contract for a series of years?
And the court said:
"In view of the nature and character of the subject matter of
the contract which the board of mayor and aldermen of the City of
Jackson was authorized to make by the third section of the act of
February 29th, 1888, we think the contract entered into with the
appellant was within the delegation of power, so far as the time of
its duration is involved. . . . We know that the machinery, mains,
and appliances required for supplying the city with water are
costly to begin with, and are relatively of little value if removed
when once located. Permanency of the plant is essential to the
realization of any profit in the enterprise, and in cities having
no greater population than that of Jackson, the use of water for
municipal purposes would probably be a prerequisite to secure the
investment
Page 206 U. S. 513
of the capital necessary to the construction of the plant. The
words from 'year to year,' relied upon by the appellee as limiting
the power of the officers of the city to the making of the annual
contracts, derived much of their significance from the subject and
nature of the thing contracted for, the character of the body on
which the power is conferred, the end to the attainment of which
the power is to be exercised, and the extent to which such powers
for such purposes are usually conferred. . . ."
"A few days after the act was passed, a commission was appointed
by the legislature to contract for water for the state
institutions, situated in and near the city, for the term of
twenty-five years. In this act, power was conferred upon all
municipalities to enter into contracts for a term not exceeding
twenty-five years, for supplies of water, on a two-thirds
affirmative vote of the qualified electors, but the act provided
that it should not apply to municipalities whose charters already
conferred the power of making contracts for water."
"
* * * *"
"A contract made by the authorities of a municipality with a
water company for supplying the city with water for a period of
twenty years is within the power conferred on them by an act of the
legislature authorizing them to contract with any reliable
corporation for supplying the city with water from year to year, in
view of the purpose of the delegation of power, the nature of the
body on which it was conferred, the subject matter of the contract,
the large outlay for machinery and appliances, the profit of which
was dependent upon the permanency of the enterprise, and the
contemporaneous legislation, from which the intent to authorize a
contract of as great duration as twenty-five years is
deducible."
Again, in the case of
Reid v. Trowbridge, 78 Miss. 542,
the mayor and aldermen of the City of Vicksburg had been
authorized, in general terms, to provide for the lighting of said
city by electric light or other method. Under this general power,
the city made a contract with the Vicksburg Railroad,
Page 206 U. S. 514
Power & Manufacturing Company for lighting the streets by
electricity at a given rental per annum, for 125 lights, for a
period of ten years. The taxpayers of the City of Vicksburg filed a
bill to enjoin the carrying out of the contract, alleging that the
city had no authority to make such a contract without submitting it
to a vote of the people, under the Act of March, 1888, passed
subsequent to the charter, requiring submission to a vote of the
people, that the contract was unreasonable and oppressive, and that
the council had acted arbitrarily and without exercising discretion
in awarding it. The court held that the act of 1888 had no
application to the case, and, speaking of the general terms of the
charter authorizing a contract for lighting purposes, said:
"The intent of the legislature to confer the power without
restriction appears to us to be too plain, from the collocation and
order and sequence of the sections and article of the charter act,
to admit of obscuration by learned argument about original power.
The very last legislative action on the subject, that in the
municipal charter of the Code of 1892, shows that the lawmakers
thought the power to be one to be conferred or prohibited, because
it expressly confers it on cities and towns and prohibits its
exercise by villages."
"
* * * *"
"It is claimed now that the last clause of section 1 of the
first quoted of the above acts (that approved March 10, 1888)
applied to and modified the charter of the City of Vicksburg so as
to make the contract here in controversy void because not submitted
to vote. In order to this result it is claimed that, in the charter
of Vicksburg, it is not 'otherwise provided,' because the charter
expressly confers the power, without restriction, on the municipal
board at any 'regular or special meeting.' Besides, in construing
the section of the act secondly above quoted, this court expressly
so held in the case of
Light &c. Co. v. Jackson, 73
Miss. 644. If the precise point was not made, the omission is quite
significant of the opinion of the eminent counsel for appellee in
that case
Page 206 U. S. 515
that there was nothing in it. Aside from this, the question was
at the very root of the cause, and was considered and decided, and
it is the exact question in the case at bar, except that this case
is somewhat stronger in favor of the power than the case
decided."
"By section 3 of the act of February 29, 1888, the Jackson board
was 'hereby authorized and empowered to contract.' etc., while, by
the Vicksburg charter act, the board was authorized to so contract
'at any regular or special meeting.' We presume that no charter
then existent 'otherwise provided' by an express prohibition of
electric lighting without vote. The grant of the power without
restriction is to 'otherwise provide.'"
And the court held that, under this power, the municipal
authorities had the right to make the contract for electric lights
without advertising for bids, and without submitting the matter to
a popular vote, and the power was not taken away by the Act of
March, 1888.
In this case, the learned judge, speaking for the court, further
said:
"Within its charter powers, the board has a discretion
independent of courts, and no exercise of it will be held void for
unreasonableness, unless so gross as to strongly suggest fraud or
corruption. The people elect their council, and the courts are not
chosen members of it."
In the light of these decisions, and others might be cited, we
reach the conclusion that, under a broad grant of power,
conferring, without restriction or limitation, upon the City of
Vicksburg, the right to make a contract for a supply of water, it
was within the right of the city council, in the exercise of this
power, to make a binding contract fixing a maximum rate at which
water should be supplied to the inhabitants of the city for a
limited term of years, and, in the absence of a showing of
unreasonableness "so gross," as the court of Mississippi has said,
"as to strongly suggest fraud or corruption," this action of the
council is binding, and for the time limited puts the
Page 206 U. S. 516
right beyond legislative or municipal alteration to the
prejudice of the other contracting party.
While we therefore reach the conclusion that the former case did
not adjudicate the matter, we think the contract in this respect
was within the power of the council, and cannot be violated
consistently with the contract rights of the company by the
subsequent ordinances of the city.
In this case, the circuit court rendered a final decree
practically upon the bill and answer. No testimony was taken, and
all that was before the court was the bill, answer, and exhibits.
We think the decree goes too far in enjoining the city from
interfering with the contract right of the company to charge the
rates fixed thereby, in view of the allegations of the answer, that
the rates charged by the company exceeded those named in section 13
of the ordinance of 1886.
The decree should be modified so as to enjoin interference on
the part of the city during the term of this contract, with the
right of the company to charge rates not in excess of 50 cents a
thousand gallons to private consumers, as set forth in the
ordinance.
With this modification, the decree will be
Affirmed.
[
Footnote 1]
"Equity, No. 41"
"Vicksburg Waterworks Company"
"
vs."
"Mayor and Aldermen of the City of Vicksburg, Mississippi"
"This day this cause came to be heard in accordance with the
motion of complainant and defendant filed January 12th, 1904, upon
the original bill, amended and supplemental bill, exhibits, answer
of defendant, proof, and exhibits, and the court, after hearing and
attending the evidence and the arguments of counsel, and being
fully advised in the premises, and being satisfied that the
complainant is entitled to the relief prayed for in its original
and amended and supplemental bills, and for full relief, it is
thereupon hereby ordered, adjudged, and decreed:"
"
First, That the defendants, the Mayor and Aldermen of
the City of Vicksburg, be and are hereby perpetually enjoined from
abrogating and taking away, or from assuming to abrogate or take
away, the franchises or contract rights of complainant under and by
virtue of the ordinances, franchises, or contract of said
defendants entitled, 'An Ordinance to Provide for a Supply of Water
to the City of Vicksburg, in Warren County, Mississippi, and to Its
Inhabitants, Contracting with Samuel R. Bullok & Company, their
Associates, Successors, and Assigns for a Supply of Water for
Public Use, and Giving the Said City of Vicksburg an Option to
Purchase the Said Works,' ordained the 19th day of November, 1886,
approved by John W. Powell, mayor, November 19th, 1886, being the
ordinance, contract, and franchise marked exhibit B to the original
bill of complaint, and said ordinance, contract, and franchise
being specifically and accurately set out in words and figures in
the pleadings, which ordinance, contract, and franchise was
acquired by and is the sole and exclusive property of said
complainant."
"
Second, That said ordinance, contract, and franchise
be and is hereby declared and held to be in every respect legal,
valid, and enforceable and binding upon said defendant, and said
defendant is hereby perpetually enjoined from infringing, ignoring,
rescinding, or denying liability under said ordinance, contract,
and franchise in any of its parts, or from in any manner disturbing
or interfering with the rights, privileges, and benefits acquired
by complainant thereunder."
"
Third, That said defendant be, and he is hereby,
directed to rescind its resolution and ordinance adopted the 7th
day of November, 1900, which is in words and figures as
follows:"
" Resolved, that the mayor be and is hereby instructed to notify
the Vicksburg Waterworks Company that the mayor and aldermen deny
any liability upon any contract for the use of the waterworks
hydrants. That from and after August, 1900, they will pay
reasonable compensation for the use of said hydrants. That the city
attorney take such action as shall be necessary to determine the
rights of the city in the premises."
"And also to rescind the ordinance or resolution of said
defendant adopted the 7th day of February, 1901, when said
defendant adopted the report of the committee on waterworks, as set
out in the pleadings."
"
Fourth, That the said defendant refrain from in any
manner accepting the benefits of or proceeding under the act of the
Legislature of the State of Mississippi approved March 9, 1900, and
from issuing bonds under and by virtue of said act, or any other
act or ordinance, for the purpose of erecting waterworks of its own
during the period prescribed by ordinance, contract, and
franchise."
"
Fifth, That the said defendant refrain from
constructing waterworks of its own until the expiration of the
period prescribed in said ordinance, contract, and franchise, dated
the 16th day of November, 1886."
"
Sixth, That the said defendant be, and is hereby,
required to pay all moneys due or owing, or that may hereafter be
due and owing to said complainant under and by virtue of said
ordinance, contract, and franchise."
"
Seventh, That the said defendant be, and is hereby,
perpetually enjoined from making or adopting any resolutions or
ordinance refusing to pay the contract price of water fixed by said
ordinance, contract, and franchise until the expiration of the
period prescribed in said ordinance, contract, and franchise."
"
Eighth, [relates to certain sewers.]"
"
Ninth, That said defendant pay the costs of this cause
to be taxed."
[
Footnote 2]
"Section 1.
Be it enacted by the Legislature of the State of
Mississippi, That the corporate authorities of any city, town,
or village now or hereafter incorporated under any general or
specific laws of this state, in which any individual, company, or
corporation has been, or hereafter may be, authorized by said city,
town, or village to supply water, electric light, or gas to said
city, town, or village, or the inhabitants thereof, be, and they
are hereby, empowered to prescribe by ordinance maximum rates and
charges for the supply of water, electric light, or gas furnished
by such individual, company, or corporation to such city, town, or
village or the inhabitants thereof, such rates and charges to be
just and reasonable. And in case the corporate authorities of any
such city, town, or village shall fix unjust and unreasonable rates
and charges, the same may be reviewed and determined by the circuit
court of the county in which said city, town, or village may be;
provided, that this act shall not be construed so as to impose
[impair] the effect of obligation of any valid or binding contract
with any waterworks company, electric light company, or gas company
now existing, or heretofore made with any individual or water
company, electric light or gas company."
[
Footnote 3]
"This case coming on to be finally heard at this January term,
1906, of this Court, upon the original bill of complaint and the
answer of the defendant thereto, and all the exhibits which are
made such, to said original bill of complaint and said answer, and
all of the other pleas and proceedings in this cause, together with
a certified copy of the charter of the said Vicksburg Waterworks
Company, which is filed in the record as evidence in the cause,
also the petition of the defendant for a modification of the
temporary injunction granted in this cause, so that the complainant
shall not be authorized to cut off water from its patrons who
refuse to pay the rates of complainant, claiming the right to have
the injunction modified by virtue of the ordinances of the
defendant, fixing water rates, and the motion of complainant to
have said injunction granted heretofore made perpetual. And the
court having heard the arguments of counsel, and being fully
advised in the premises, and being satisfied that the complainant
is entitled to the relief prayed for in its bill of complaint for
full relief, it is thereupon finally ordered, adjudged, and
decreed:"
"
First. That the defendant, the mayor and aldermen of
the City of Vicksburg, is hereby denied the relief prayed for in
its petition, to-wit, that the injunction be modified so that the
mayor and aldermen of the City of Vicksburg shall not be restrained
from enforcing the ordinances passed by them fixing the water rates
and prescribing rules and regulations of the Vicksburg Waterworks
Company, and that the Vicksburg Waterworks Company shall not be
permitted to cut off patrons' water, providing patrons pay the
rates fixed in said ordinances."
"
Second. That said defendant be, and is hereby,
enjoined from enforcing the said three ordinances described in said
bill, to-wit: An ordinance entitled 'An Ordinance to Fix and
Prescribe Maximum Rates and Charges for Water Suppliedto the
Inhabitants of the City of Vicksburg, Whether Measured by Meters,
and for Other Purposes,' approved the 20th of April, 1904, an
ordinance entitled 'An Ordinance to Fix and Prescribe the Maximum
Flat Rates and Charges for the Supply of Water to Consumers in the
City of Vicksburg, and for Other Purposes,' approved the 20th day
of April, 1904, and an ordinance entitled 'An Ordinance to Require
Waterworks, Gas, and Electric Companies to Present Bills before
Charging Damages for a Failure to Pay Them When Due,' approved the
8th day of December, 1903, so far as the latter relates to
complainant."
"
Third. That the restraining order heretofore granted
in this cause on the 11th day of January, 1905, be and the same is
hereby made permanent."
"
Fourth. That the said defendant be, and is hereby,
enjoined from in any manner interfering with the complainant's
contract rights under its said contract with the City of Vicksburg,
entered into between Samuel R. Bullock & Company and said city,
under the ordinance of November 19th, 1886."
"
Fifth. That the defendant be, and is hereby, enjoined
from interfering with the rules and regulations of complainant, the
Vicksburg Waterworks Company, and the water rates for the
inhabitants of the City of Vicksburg, now in force, established by
the Vicksburg Waterworks Company."
"
Sixth. That said defendant be, and is hereby, enjoined
from interfering with the water rates known as the flat rates, now
in force, established by the Vicksburg Waterworks Company."
"It is further ordered, adjudged, and decreed that the defendant
pay all costs of this cause."
"Finally ordered, adjudged, and decreed this, the 3d day of Jan.
A.D. 1906."