A contract with a municipal corporation whereby the corporation
grants to the contractor the sole privilege of supplying the
municipality with water from a designated source for a term of
years is not impaired, within the meaning of the contract clause of
the Constitution, by a grant to another party of a privilege to
supply it with water from a different source.
Page 141 U. S. 68
Where a contract with a municipal corporation is susceptible of
two meanings, the one restricting and the other extending the
powers of the corporation, that construction is to be adopted which
works the least harm to the state.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case presents a question under the clause of the
Constitution of the United States relating to the impairment by
state legislation of the obligation of contracts.
The appellant, who was the plaintiff below, claims that his
testator, Albert Stein, deceased, acquired by valid contract, and
to the exclusion of all other persons or corporations, the right
and privilege by a system of public works of supplying the City of
Mobile and its inhabitants with water, from whatever stream or
river drawn, until that city should redeem and purchase the
waterworks constructed and maintained by the testator in accordance
with the terms of that contract, and that the obligation of such
contract was impaired by an act of the Legislature of Alabama,
approved February 19, 1883, incorporating the Bienville Water
Supply Company. Acts of Alabama, 1882-83, p. 451. In this view the
court below did not concur, and it dismissed the bill for want of
equity. 34 F. 145.
It will conduce to a clear understanding of the issue between
the present parties if we trace the history of the question of
water supply for Mobile and its inhabitants, as disclosed in the
legislation of Alabama and in the action upon that subject, from
time to time, of the constituted authorities of that city. This
being done, the inquiry as to whether the above act of 1883 impairs
the obligation of the contract that Stein had with the city can be
solved without extended discussion.
The first act to which attention is called is that of December
20, 1820, incorporating the Mobile Aqueduct Company.
Page 141 U. S. 69
Its preamble recites that
"it has been represented that it would be of singular advantage
to the health and commerce of the City of Mobile to be supplied
with water from some of the running streams in its vicinity, which
would be attended with too much labor and expense to be effected by
laying a tax for the purpose,"
and that
"it has also been represented that certain individuals have
agreed to associate themselves together for the purpose of
conducting a supply of water from a creek called 'Three-Mile
Creek,' otherwise 'Bayou Chatogue,' for the use of the citizens and
other persons residing in the City of Mobile."
In consequence of these representations, certain named persons
were constituted a corporation under the name of the "Mobile
Aqueduct Company," with authority to establish a channel or canal
large enough to contain and conduct water in quantities sufficient
to supply the citizens and other persons of Mobile. The act
provided
"That the said corporation and their successors shall have and
enjoy the exclusive right and privilege of conducting and bringing
water for the supply of said city for the space of forty years,
provided the said corporation or their successors shall,
before the expiration of three years from the passage of this act,
cause to be conducted the water
from the said bayou or
creek to the said City of Mobile in the manner hereinbefore
proposed,
and provided also that after the expiration of
the said term of years, the said waterworks shall become the
property of the said city, and shall be for the free use of the
inhabitants thereof forever."
Acts of Alabama 1820, p. 72.
Nothing was done by this company, and by an act approved
December 24, 1824, amendatory of the charter of Mobile, the Act of
December 20, 1820, was declared null and void, and all the rights,
privileges, and powers granted by it were transferred to and vested
in that city for the use and benefit of its inhabitants. Acts of
Alabama 1824-25, p. 68.
On the 1st day of December, 1836, an agreement in writing was
entered into between the city and one Hitchcock whereby the former
granted and leased to the latter, his executors and assigns, for
the term of twenty years, the entire use, control, management,
rents, profits, and issues of the "Mobile City
Page 141 U. S. 70
Waterworks," embracing the ground at Spring Hill, where the
fountain was situated, and the ground along which the pipes passed
from the fountain to the city, together with the use of all the
wooden and iron pipes and logs then laid down, as well as all the
advantages that had accrued to the city from, by, or under the
above Act of December 20, 1820, and from all ordinances or
resolutions passed by the city relating to said city waterworks.
This grant and lease was in consideration of the payment of certain
sums, evidenced by Hitchcock's notes, and upon the condition, among
others, that he would, within the space of two years from the date
of the agreement,
"put the said waterworks in good and sufficient repair, so as to
continue during the time hereby granted, and will also keep up the
said waterworks in good order as they now are until they shall be
so placed in good order and repair, so that the City of Mobile, and
the inhabitants thereof, may at all times be supplied with such
quantity of good wholesome water as may be procured through the
said aqueduct,"
such waterworks to be surrendered to the city in good order and
condition at the end of the twenty years, Hitchcock being paid what
they actually cost him during that time. That contract also
provided that Hitchcock, his executors, administrators, and
assigns, should, during said term of twenty years,
"have the exclusive privilege of furnishing to the citizens and
inhabitants of the City of Mobile water
from the aqueduct or
waterworks aforesaid at a sum or price which shall at no time
be less"
than certain named rates, and that he shall have
"the power and authority to make such alterations and repairs
upon the said works, and to erect such new work, and in such
manner, as he may deem necessary and proper, and may at will change
the fountain head, and conduct the water
from any part of
'Three-Mile Creek,' so called, so that the same be good and
wholesome, he, the
Page 141 U. S. 71
said Henry Hitchcock, procuring at his cost, the necessary
ground for the reservoir or reservoirs, and that through which the
pipes shall pass. And the said mayor and aldermen of Mobile, for
themselves and their successors in office, hereby further covenant
and agree that they will at the expiration of the said term of
twenty years -- he, the said Henry Hitchcock, his executors,
administrators, or assigns, delivering up the said 'waterworks' and
appurtenances in good order and repair -- pay to him or them the
actual cost and expenses which he or they shall have laid out and
expended, and which may be put upon the said works by him or them,
or any of them, either by reason of repairs, or addition to the
present works, as by alterations or improvements made upon the said
waterworks during the said term of twenty years above stated."
Subsequently, December 25, 1837, an act was passed incorporating
the Mobile Aqueduct Company, to continue until December 1, 1856,
and until it should have been "purchased out" by the City of
Mobile, during which period it was to have and enjoy all the
rights, privileges, and immunities conferred by the above Act of
December 20, 1820, except as modified by the Act of December 25,
1837, the former act being revived and declared to be in force
during the continuance of the latter one. The fifth section of the
Act of December 25, 1837, recognized and confirmed the contract
between the city and Hitchcock, and provided that upon its
assignment to the new company (which he was authorized to make),
the same was to inure to its benefit, and should be subject to all
the covenants therein contained to be performed by Hitchcock. That
act further provided that the new company "shall be permitted the
use of the streets in the City of Mobile, free of charge, for the
purpose of laying down pipes for the conveyance of the water;"
also
"that so soon after the 1st day of December, 1856, as the said
corporation of Mobile shall pay to the said company the cost of the
said work, in conformity with their contract, before referred to,
with the said Henry Hitchcock, then this act shall cease to
operate, and not before,
provided that the said company
shall have power to collect its debts and wind up its affairs."
Acts of Alabama 1837, p. 76.
Shortly after the passage of the Act of December 25, 1837, the
waterworks property again passed into the possession of the City of
Mobile, and the building of the system contemplated by that act was
abandoned.
Page 141 U. S. 72
On the 26th day of December, 1840, the City of Mobile and Albert
Stein, the testator of the plaintiff, entered into a written
agreement whereby the city granted to him, his heirs, executors,
administrators, and assigns, the
"sole privilege of supplying the City of Mobile with water
from the Three-Mile Creek for twenty years from the date
of this agreement, as well as all the advantages and benefits which
accrue to the said mayor, aldermen, and common council from, by, or
under an act of the Legislature of the State of Alabama, entitled
'An act to incorporate an aqueduct company in the City of Mobile,'
passed December 20, 1820, and all ordinances and resolutions passed
by the said mayor and aldermen of the City of Mobile, under and by
virtue of the said act, or by the act of incorporation of the said
City of Mobile, and the several acts amendatory thereto which in
any way or manner relate to the said 'City Waterworks,' or the
right to supply said city with water, as well as all the benefits
and advantages which accrue to the said mayor, aldermen, and common
council, or the mayor and aldermen of the City of Mobile, from, by,
or under an act of the Legislature of the State of Alabama entitled
'An act to incorporate the Mobile Aqueduct Company,' passed
December 25, 1837, to have and to hold the
above mentioned and
described privileges, together with all and singular the
appurtenances unto the same belonging, or in any wise appertaining,
unto the said Albert Stein, his executors, administrators, and
assigns, from the date hereof, for, during, and until the full end
and term of twenty years thence next ensuing."
The city covenanted and agreed that it would at the expiration
of the said term, Stein delivering up the waterworks and
appurtenances in good order and condition, pay him, his executors,
administrators, or assigns, their actual value, as determined by
six arbitrators, three to be chosen by each side, whose award
should be binding, but in case of disagreement, the value to be
left to the determination of the Water Committee of Philadelphia,
and their decision, communicated to the city, to be conclusive, and
the amount so awarded to be paid on the day it should be reported,
when the waterworks and
Page 141 U. S. 73
all appurtenances should be delivered over to the corporation of
Mobile. The city also covenanted that Stein, his executors,
administrators, and assigns,
"shall have quiet possession of the said works, during their
erection and after they shall be completed, for the term of twenty
years, and for any further time, until the said parties of the
first part [the city authorities] or their successors in office
shall redeem the said works from the said party of the second part
[Stein], his heirs, executors, administrators, or assigns,
according to the aforesaid stipulation;"
that Stein, his executors, administrators, and assigns, he and
they performing the stipulations of the contract upon their part to
be performed,
"shall and may retain quiet possession of the said waterworks
for the said term of twenty years without let, molestation, or
hindrance of the said mayor, aldermen, and common council, or their
successors in office, or any person or persons claiming by,
through, or under them, and that the said Stein, his executors,
administrators, and assigns, shall, during the said term of twenty
years, or any further time, until said works are redeemed as above
stipulated, have the exclusive privilege of supplying to the
citizens and inhabitants of the City of Mobile water from the
waterworks aforesaid at the sum or price which shall at no time
exceed"
certain named rates to be paid by the persons receiving the
water. This contract specified the maximum rates to be charged to
persons receiving water. Stein, his executors, administrators, and
assigns, were given power to collect and receive these rates,
and
"power and authority to conduct the water
from any part of
the 'Three-Mile Creek,' so called, so that the same may be
good and wholesome, he, the said Albert Stein, his executors,
administrators, or assigns, procuring at his or their expense the
necessary ground for the reservoir, engine, and pump house, and
that through which the pipes shall pass."
By an act of the legislature approved January 7, 1841,
entitled
"An act for the promotion of the health and convenience of the
City of Mobile by the introduction of a supply of wholesome water
into said city, to be used for domestic purposes and the
extinguishment of fires,"
this last agreement was fully
Page 141 U. S. 74
confirmed, and all the rights, powers, privileges, and
immunities granted by the acts of December 20, 1820, and December
25, 1837, not inconsistent with the terms of such agreement, were
granted and confirmed to Stein and his assigns, with full authority
to use such of the public roads of the county
"as may be in the direct route between the reservoir and
fountain head of the waterworks hereby to be erected, and the City
of Mobile, for the purpose of laying the pipes or conducting the
water into the city, free from all charge or claim for damage
therefor,"
and with power to dispose of or mortgage any of said privileges,
rights, and immunities.
The bill alleges and the demurrer admits that Stein, in good
faith, set about, and out of his own private fortune, and by
borrowing money from others, raised the means to build, and did
construct at an outlay and expense of more than $200,000, a system
of public waterworks to supply said City of Mobile and the
inhabitants thereof with water, in strict conformity to and
compliance with the aforesaid contract and agreement; that he and
his executor have ever since maintained and kept the same in good
order and condition, and in all respects observed the aforesaid
contract and agreement; that the said City of Mobile has not
redeemed or purchased, or offered to redeem or purchase, said
waterworks property, as by said contract it agreed to do, although
said period of twenty years has long since expired; that in the
year 1879, the legislature of the State of Alabama repealed the
charter of the City of Mobile, and immediately thereafter, and at
the same session of the legislature, passed an act incorporating
the municipal corporation known as the "Port of Mobile," embracing,
however, substantially the same territory and people and public
property as that included in the City of Mobile; that said
municipal corporation called the "Port of Mobile" succeeded to all
the rights, powers, and authority possessed by the said City of
Mobile, and said port of Mobile recognized the validity, efficacy,
and continuance of the above contract of December 26, 1840.
The Bienville Water Supply Company was incorporated by an Act
approved February 19, 1883, which was amended by
Page 141 U. S. 75
an Act approved February 14, 1885. The preamble recites that
"Whereas the inhabitants of the municipality known as the 'Port
of Mobile,' and the inhabitants of the village of Whistler, in the
County of Mobile, are not provided with an adequate supply of water
for domestic and municipal purposes, and whereas it is essential to
the public health of the citizens of those towns, and to the
protection of their property and the public property therein
against conflagration, that an abundant supply of water should be
introduced and furnished to said citizens, and whereas, a company
of citizens of said county propose to undertake the duty of
furnishing such supply to said towns for the public use and
benefit."
By the sixth section of the act, that company was charged with
the duty of introducing into the port of Mobile and the village of
Whistler, in Mobile County, such supply of pure water as the
domestic, sanitary, and municipal wants thereof might require, and
for this purpose it was authorized to construct all needed canals
and ditches, and, by pipes and aqueducts as might be found best
suited for the purpose, to carry into said towns, by such lines or
route as might be found best, such water as was needed, from any
point in that county within twenty miles of the port or City of
Mobile.
The same act provides, among other things:
"SEC. 9. That the said corporation hereby created is hereby
invested with all the rights and powers which by law or contract
was vested in the late municipal corporation known as 'the Mayor,
Aldermen, and Common Council of the City of Mobile,' by redemption,
purchase, or otherwise, to acquire from any and all other persons,
corporations, or associations whatever, any and all property and
rights by such person or persons, corporations or associations,
held under any former contract or law whatever for the introduction
and supply of water into the City of Mobile, or the inhabitants
thereof, and for such purpose said Bienville Water Supply Company
shall be held and taken to be the assignee of the said 'Mayor,
Aldermen, and Common Council of the City of Mobile,' and may
proceed to assert said rights, and exercise said powers thus
assigned the same as could have been done by the municipal
corporation aforesaid;
Page 141 U. S. 76
and for this purpose the commissioners of Mobile, appointed
under and by virtue of 'An act to vacate and annul the charter and
dissolve the corporation of the City of Mobile,' approved February
11, 1879, are hereby authorized, on the demand of said corporation,
to release to said corporation all the rights of said late City of
Mobile in and to such right of redemption, purchase, or other
acquisitions of such property or rights."
"SEC. 10. That said Bienville Water Supply Company be, and is
hereby, authorized to acquire by contract with any person or
persons, corporation, company, or association, claiming any right
to supply the port or City of Mobile, or the inhabitants thereof,
with water, such right or rights as he or they may have in the
premises, and the property owned and used in connection therewith,
and pay therefor such amount of money as may be agreed upon, or
such amount as may be agreed upon, in stock of the said supply
company, and in case of failure by contract to obtain such right
and property, then said corporation, hereby created, may proceed as
directed by law, for the condemnation and the taking of private
property for public use, to obtain the same for the purpose of the
public use and benefit herein declared of furnishing the port of
Mobile, and the Village of Whistler, and the inhabitants thereof,
with an adequate supply of water for domestic, sanitary, and
municipal purposes."
"SEC. 11. That said corporation shall have and enjoy the
exclusive right of conducting and bringing water from any point
other than Three-Mile Creek in the County of Mobile for
the supply of said port of Mobile and Village of Whistler, for the
period of twenty years from the time when said water shall have
been brought within the limits of the port of Mobile, and be ready
for distribution, and supply to the inhabitants of the port of
Mobile, and the houses and dwellings within the limits of said
port, and till the municipal authorities of said port and village,
if so by law authorized, shall purchase the waterworks and property
of said corporation as hereinafter provided; but said corporation
within four years from the passage of this act, must begin its
works, and within six years from date of the passage of this act,
must cause
Page 141 U. S. 77
water to be conducted into the port of Mobile from some stream,
point, or place as hereinbefore named, and if and when any existing
claim to conduct water into Mobile from Three-Mile Creek, or any
other point without the limits of said port, has been obtained by
this corporation, then said corporation shall have the exclusive
right to supply said port and village, and the inhabitants thereof,
with water for the period and the term aforesaid."
But nothing in this act shall be construed to prohibit the
organization hereafter of any company for the purpose of supplying
the City of Mobile, or any other place, with water which does not
interfere with the property rights or rights of obtaining water
pertaining to this company.
The plaintiff, alleging in his bill that the Bienville Water
Supply Company were engaged in laying down pipes and mains for the
avowed purpose of conducting water into Mobile to supply that city
and its inhabitants, prays that the defendant may be enjoined from
laying pipes in, along, or through the streets and alleys of the
city for such a purpose, and that it be perpetually enjoined from
interfering with the exclusive right and privilege which the
plaintiff, representing the estate of Albert Stein, claims of
supplying Mobile and its inhabitants with water under the contract
of December 26, 1840, until that city shall redeem and purchase at
their actual value, the waterworks constructed and maintained by
the testator under that contract.
The present case is not controlled by
New Orleans Waterworks
Company v. Rivers, 115 U. S. 674, and
St. Tammany Waterworks v. New Orleans Waterworks,
120 U. S. 64, to
which counsel have referred. The first case involved the validity
and effect of a contract between the City of New Orleans and the
New Orleans Water Company whereby the former, acting under
legislative authority, granted to the latter, for the term of fifty
years, the exclusive privilege of supplying that city and its
inhabitants
"with water from the Mississippi,
or any other stream or
river, by mains or conduits, and for erecting and constructing
any necessary works or engines or machines for that purpose."
Subsequently, under the sanction of a new state constitution,
adopted after that
Page 141 U. S. 78
contract was made, the city passed an ordinance allowing Rivers,
or the lessee of the St. Charles Hotel, the right of way and
privilege to lay a water pipe from the Mississippi River at any
point opposite the head of Common or Gravier Streets, through
either of those streets, to convey water to that hotel. This Court
held the grant to Rivers to be inconsistent with the previous one
to the waterworks company, and that the provision in the new
Constitution of Louisiana, and the ordinance under which Rivers
proceeded, impaired the obligation of the city's contract with the
waterworks company. It was said:
"The right to dig up and use the streets and alleys of New
Orleans for the purpose of placing pipes and mains to supply the
city and its inhabitants with water is a franchise belonging to the
state, which she could grant to such persons or corporations, and
upon such terms, as she deemed best for the public interests. And
as the object to be attained was a public one, for which the state
could make provision by legislative enactment, the grant of the
franchise could be accompanied with such exclusive privileges to
the grantee, in respect of the subject of the grant, as in the
judgment of the legislative department would best promote the
public health and the public comfort, or the protection of public
and private property. Such was the nature of the plaintiff's grant,
which, not being at the time prohibited by the constitution of the
state, was a contract, the obligation of which cannot be impaired
by subsequent legislation or by a change in her organic law,"
the constitutional prohibition upon state laws impairing the
obligation of contracts not, however, restricting
"the power of the state to protect the public health, the public
morals, or the public safety, as the one or the other may be
involved in the execution of such contract,"
because
"rights and privileges arising from contracts with a state are
subject to regulations for the protection of the public health, the
public morals, and the public safety, in the same sense as are all
contracts and all property, whether owned by natural persons or
corporations."
In
St. Tammany Waterworks v. New Orleans Waterworks, we
maintained the contract which the New Orleans Waterworks Company
had with the city against another corporation
Page 141 U. S. 79
that claimed the right, under the general laws of Louisiana --
and was about to take active steps in its enforcement -- of
bringing water into New Orleans by means of pipes, laid in the
streets of that city parallel with those constructed by the New
Orleans Waterworks Company, to convey water from Bogue Falaya
River, in the Parish of St. Tammany. As the exclusive right of the
New Orleans Waterworks Company to supply the City of New Orleans
and its inhabitants with water was not restricted to water drawn
from the Mississippi, but embraced water from "any other stream or
river," the case was held to be controlled by the decision in
New Orleans Waterworks Co. v. Rivers.
The present case is materially different. The exclusive right
acquired by Stein, under his contract of 1840 with the City of
Mobile and confirmed by the Act of January 7, 1841, of supplying
that city and its people with water by means of a system or public
works did not, in terms or by necessary implication, embrace all
streams or rivers or bodies of water from which he could supply
water for public use in Mobile. While the obtaining of water for
that city was undoubtedly contemplated by the legislature when it
passed the first act -- that of 1820 -- the thing done to that end
was to incorporate certain persons proposing to bring water to the
city from Three-Mile Creek or Bayou Chatogue. And this idea was
apparent in the agreement of 1836 with Hitchcock. So, by the
agreement with Stein, he, and his heirs, executors, administrators,
and assigns acquired the"sole privilege of supplying the City of
Mobile with water
from the Three-Mile Creek" for a
designated term of years, as well as after the expiration of that
term, and until he or they should receive from the city the actual
value of his waterworks, determined in the mode prescribed by the
contract. The specific power and authority given to Stein and his
executors, administrators, and assigns by the city and the state
was "to conduct the water from any part of the Three-Mile Creek, so
called, so that the same be good and wholesome." Why the parties,
in making their agreement, specified a particular stream from which
Stein was to conduct water into the City of Mobile for public use
does
Page 141 U. S. 80
not distinctly appear, and it is not necessary to inquire, for
the question before us depends upon the fair and reasonable
interpretation of the agreement actually made. The court has no
right to enlarge it, even if it believed that the parties
themselves would have done so, if the matter had at the time the
agreement was signed, been called to their attention. The exclusive
privilege granted, and the power and authority conferred in
connection therewith, were to conduct water into the city from
Three-Mile Creek. The parties, by the agreement, fixed upon that
stream as the source of the water to be brought into the city, and
the exclusive privilege granted to Stein had reference only to that
stream.
The case then is this: the state incorporated the Bienville
Water Supply Company and conferred upon it the exclusive right, for
a term of years, to supply the port of Mobile with water conducted
and brought
from any other point than Three-Mile Creek.
The plaintiff seeks a perpetual injunction against the exercise of
that right, and in support of his claim of an exclusive privilege
of supplying water for Mobile and its people, from whatever source
drawn, exhibits the contract which granted to Stein the exclusive
right to supply that city and people with water brought from
Three-Mile Creek for a fixed term of years and until his works were
redeemed by the city. The exercise by the defendant of the
exclusive right granted to it will not interfere with the only
exclusive privilege acquired by the plaintiff under the contract of
1840, confirmed by legislative enactment in 1841 -- namely, to
conduct water for the use of Mobile and its people from Three-Mile
Creek. If the contract under which the plaintiff claims was
doubtful in its meaning, the result would not be different, for
while it is the duty of the courts not to defeat the intention of
parties to a contract by a strained interpretation of the words
employed by them, it is a settled rule of construction that "in
grants by the public, nothing passes by implication," and
"if, on a fair reading of the instrument, reasonable doubts
arise as to the proper interpretation to be given to it, those
doubts are to be solved in favor of the state, and where it is
susceptible of two meanings, the one restricting and the other
extending the
Page 141 U. S. 81
powers of the corporation, that construction is to be adopted
which works the least harm to the state."
The Binghamton
Bridge, 3 Wall. 51,
70 U. S. 75.
Guided by this rule, in respect to which there is no difference of
opinion in the courts of this country, we are forbidden to hold
that a grant, under legislative authority, of an exclusive
privilege, for a term of years, of supplying a municipal
corporation and its people with water drawn by means of a system of
waterworks from a particular stream or river prevents the state
from ran ting to other persons the privilege of supplying, during
the same period, the same corporation and people with water drawn
in like manner from a different stream or river.
The relief asked was in effect an injunction perpetually
restraining the defendant from supplying the port and people of
Mobile with water drawn from rivers or streams other than
Three-Mile Creek. That was the object of the suit, and the decree
below must be restricted to a denial simply of that relief. Thus
restricted, and without deciding any other question, the decree
dismissing the bill must be
Affirmed.
MR. JUSTICE BRADLEY did not participate in the decision of this
case.