Messrs. Alexander Pope Humphrey and William W. Davies for plaintiff in error.
Messrs. G. F. Rearick and John H. Lewman for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
The parties to this action were respectively plaintiff and defendant in the courts of the state, and we will so denominate them. The plaintiff is a private corporation, and the defendant is a municipal corporation organized and existing under the general laws of the state. The action was brought by the plaintiff to recover the sum of $5,000, alleged to be due for the rental of certain fire hydrants.
The cause of action relied on is based on an ordinance passed on the 9th of November, 1882, by the defendant, granting the plaintiff the privilege of constructing and maintaining waterworks for supplying the city of Danville, Illinois, with water. The ordinance provided in detail for the character of the works and the supply, the rates to consumers, whether furnished by meter or otherwise, and the purchase by defendant of the works at the expiration of five, ten, and twenty years, and at the expiration of thirty years of any renewed term.
Section 8 and section 14 are respectively as follows:
The acceptance was duly filed by plaintiff. On the 1st of May, 1883, another ordinance was passed amending the first ordinance, for the construction of the works, the streets where the mains should be laid, and the place where the fire hydrants should be put, and how constructed.
Section 2 provided as follows:
Between the 8th of June, 1883, and the 18th of October, 1894, twelve other ordinances were passed, requiring the extension of the mains of the water system to other streets and the erection of fifty-seven additional fire hydrants; all of the ordinances were declared binding as contracts upon acceptance by the plaintiff, and all were accepted. The rental of the hydrants was fixed, as to some of them at $62.50 per annum, and others at $ 50 and $40 per annum. In the ordinance fixing the latter sums it was provided that nothing therein should 'operate to affect in any way any of the provisions of the ordinance heretofore passed by said city relative to the Danville Water Company, except to the extent of the reduction of the rental of the additional hydrants therein provided and hydrants thereafter to be provided.'
There was an allegation that plaintiff did all things required of it in the construction of the system, and put in all mains and hydrants and kept them supplied with water.
The pleas of the defendant admitted that the sum of $1,930 was due, but denied liability for anything over that sum, because the rental for the hydrants had been reduced by an ordinance passed by the city January 17, 1895, which was entitled 'An Ordinance Prescribing the Maximum Rates and Charges for [180 U.S. 619, 622] the Supply of Water Furnished by the Danville Water Company of the City of Danville.' The ordinance recited that after a careful comparison of water rates and charges in other cities it was found that those of the Danville company were 'unjust, excessive, and unreasonable.' And that whereas under the act of the state approved June 6, 1891, in force July 1, 1891, and under 'other fully competent and complete legal authority,' the city was empowered to prescribe the ordinance maximum rates for water furnished by the Danville company; and whereas, after full investigation the members of the council believed the rates prescribed were just and reasonable, a schedule or scale of rates was ordained to take effect on the 1st of May, 1895. The rental of fire hydrants was reduced for the first 140 to a uniform rate of $50 per annum; for all others then rented and others which should be rented, $40 per annum. For certain uses of water which had been theretofore furnished free by the plaintiff a rate was fixed, to be paid by the city. Provision was made for the appearance by the city attorney if the plaintiff should desire to apply to the circuit court of the county for a review of the rates.
There was an allegation of notice of the passage of the ordinance to the plaintiff, and the prior ordinance under which plaintiff claimed an irrevocable contract were at the time of the passage of said ordinances in excess of a reasonable compensation for the water supplied, and were at the time of suit 'unjust, unreasonable, and excessive.'
The plaintiff demurred to each of the defendant's pleas, and the demurrer was sustained. The defendant asked that the demurrer be carried back to the declaration, and elected to stand by its pleas. Judgment was entered for the plaintiff in the sum of $2,701, motion to arrest, which was denied, and the case was then taken to the supreme court of the state, by which court the judgment was reversed, and the cause was remanded for further proceedings in accordance with the views expressed in the opinion filed in the cause.
The chief justice of the state allowed this writ of error.
The questions presented by this record are the same passed on in Freeport Water Co. v. Freeport, 180 U.S. 587 , ante, p. 493, 21 Sup. Ct. Rep. 493, and depend upon the same statutes. Upon the authority of that case the judgment of the Supreme Court of Illinois is affirmed.
Mr. Justice White, with whom concur Mr. Justice Brewer, Mr. Justice Brown, and Mr. Justice Peckham, dissenting:
It will be seem from the opinion of the court that this case differs in no material particular from that of the Freeport Water Co. v. Freeport, just decided, 180 U.S. 587 , ante, p. 493, 21 Sup. Ct. Rep. 493. Under the sanction of the same statutes considered in the Freeport Case, the defendant in error, the city of Danville, contracted with the plaintiff in error, the water company, for the period authorized by the statute, and stipulated as to the rates to be paid for a public [180 U.S. 619, 624] water supply. These rates were adhered to until, under the authority of the statute of the state of Illinois passed in 1891, referred to in the opinion in the Freeport Case, the defendant in error reduced the rates below the contract price. It now asserts in this record that it possessed the power to do so.
For the reasons stated by me for dissenting from the opinion and decree in the Frceport Case, I dissent from the opinion and decree in the present case.