Prohibiting grants of pubiic money §§ 602-611. 596 ..... Commencement of civil actions. 321 Compiled Statutes, 1901. Duty of county attorney.. panies.. Code of Civil Procedure. Issuance of summons to counties. Error in civil cases.. Proceedings to vacate or modi fy judgment.. 321 492 400 494 397 Art. 1, § 9. Constitution, 1846. Vote on bills appropriating Oklahoma. Session Laws. public money.... .. 350 1899, chap. 13, § 2. Qualification of elect ors.... Constitution. 330 330 330 Code of Criminal Procedure. 813 1897, p. 561, chap. 420. Partnership law. 1900, chap. 742. Action for divorce brought by wife.. 799 Revised Statutes. Code of Civil Procedure. $ 7217. Form of indictment.. 282 282 1854-55, chap. 21, p 45. Entry law..... 939 1897, chap. 71. South Dakota. Statutes. Insurance.. § 1709. 336 Art. 1, § 20. Obligation of contracts..... 897 1875, chap. 142. 1885, chap. 8. § Statutes. Waterworks charter.. 1877, chap. 104. Waterworks charter.. $$ 1074-1079. 894 improvement com panies.. 134 338 on 894 Chap. 72, § 22. Tenants.. 938 408 LAWYERS' REPORTS ANNOTATED. Lemuel W. GOSNELL, Respt 1. Requiring approval by the common 2. The recommendation of water rates I. Power to procure or furnish. 2. Charter authority, 36. b. Of private corporation, 39. II. Purchase or construction of plant. e. Liability for injuries, 58. VI. Rights and duties of water company. b. Duty as to furnishing water. 1. As to quantity and quality. d. Assignability of franchise, 98. e. Control of rates. poration in fixing water rates merely be cause the schedule did not originate with the executive board as required by charter, where it is not inequitable, and has received the approval of the legislative department, whose approval would have been necessary had it originated in the manner pointed out by statute, and the irregularity may be cured by ordinary means. (February 3, 1903.) APPEAL by Coutor from a judgment of the Circuit Court for La Crosse County in favor of defendant in a certiorari proceeding to review the action of the city of La Crosse in establishing water rates. Reversed. Statement by Marshall, J.: The city of La Crosse owns and operates VIII. Rights and duties of municipality. a. In general, 116. b. Regulations, 117. c. Rates, 118. d. Lease or sale of plant, 119. 1. In general. There is some disagreement among the courts as to the necessity of express authority to enable a municipal corporation to procure or furnish a water supply. In Louisiana it is held that a city has an implied power to contract for a water supply, although its charter fails expressly to authorize a system of waterworks for the purpose of supplying water within the municipality for public and private use. Its charter, prior to 1887, vested power in the common council, by subdivision 11, § 3, subc. 4, chap. 135. Laws 1876, as amended by § 6, chap. 183, Laws 1881: "To provide for the erection of waterworks for the supply of water to the inhabitants of the city; to lay down water pipes; to establish water rates to be paid by persons using the water therefrom, and to prevent unnecessary waste of the water by any person or persons; to pass from time to time such ordinances as may be deemed necessary or expedient for the construction, regulation, or protection of such waterworks and pipes, and to enforce the same by suitable penalties." That was amended in 1887 by chapter 162 of the Laws of that year, the words "to into what is so nearly a business venture can be implied when express authority can be SO easily obtained if it is necessary for the public welfare. The power of a municipal corporation to build and maintain waterworks and furnish water to its inhabitants for a consideration is derived from, and governed solely by, statute. Wagner v. Dock Island, 146 Ill. 139, 21 L. R. A. 519, 34 N. E. 545. A municipal corporation has no implied power, from the mere fact of its creation, to engage in the business of supplying its citizens with water for pay. It cannot do so except by virWhite tue of its express legislative authority. v. Meadville, 177 Pa. 643, 34 L. R. A. 567, 35 Atl. 693. The power to construct a waterworks for a it to do so. Lake Charles Ice, Light, & Water-city works Co. v. Lake Charles, 106 La. 65, 30 So. 289. And in Tennessee it is held that the erection of waterworks is one of the ordinary powers of a municipal corporation, and needs no enabling act to authorize the corporation to exercise the right within its charter limits; but it is one of the powers subject to amendment and the revocation of the legislature. Memphis v. Memphis Water Co. 5 Heisk. 495. In Massachusetts it has been held that a town has authority to appropriate money for the construction of reservoirs for water for the extinguishment of tires. Hardy v. Waltham, 3 Met. 163 There may be a distinction between authority to provide means to extinguish fires, and to fur nish a water supply to citizens, so that Hardy v. Waltham, 3 Met. 163, is not necessarily an authority in favor of the more general power. is not a necessary incident of its incorporation, but must, like all its other powers, be derived directly from the legislature of the state; and the power "to construct and maintain" such a system implies a duty of the municipality, through its corporate authorities, to maintain and preserve possession for the benefit of the public. Huron Waterworks Co. v. Huron, 7 S. D. 9, 30 L. R. A. 848, 62 N. W. 975. Supplying water to a town or city is not a public function. The power of a municipality to furnish water is derived wholly by act of the legislature. Re Long Island Water Supply Co. 30 Abb. N. C. 36, 24 N. Y. Supp. 807. Even where authority is granted by statute, it is not the duty of a municipal corporation to supply its citizens with water or any of those conveniences which improve the sanitary condition of the community and are beneficial to its inhabitants. The state delegates such powers as privileges. Wainwright v. Queens County Water Co. 78 Hun, 146, 28 N. Y. Supp. 987. In fact, in Michigan it has been held that statutory authority conferred upon a municipal corporation to provide a supply of water for fire protection does not authorize it to construct waterworks designed to furnish the inhabitants with water as well as for fire purposes; but such action must first be authorized as required by the statute prohibiting the raising or expendi-Pipe Works v. Oconto Water Co. 52 Fed. 29. A city which has not adopted the provisions of the statute authorizing municipalities to hold and operate waterworks and legislate on matters connected therewith is without power to grant a franchise for owning and operating waterworks and the exercise of the rights and priv. ileges incidental thereto. National Foundry & ture of money for the construction of waterworks unless sanctioned by a two-thirds vote of the electors. Savidge v. Spring Lake, 112 Mich. 91, 70 N. W. 425. So far as the question of furnishing a water supply for the benefit of the citizens generally is concerned, the weight of authority and the better reason deny such authority. Municipal corporations are limited strictly to their granted powers, or those necessarily implied. And it can hardly be claimed that the power to enter So, the erection of a municipal water supply is not a "necessary expense" for the welfare of a municipal corporation within a constitutional prohibition of the issuing of bonds or levying of taxes for other than a necessary expense without a vote by the electors. Charlotte v. Shepard, 120 N. C. 411, 27 S. E. 109; Thrift v. Elizabeth City, 122 N. C. 31, 44 L. R. A. 427, 30 S. E. 349; Edgerton v. Goldsboro Water Co. 126 N. C. 93, 48 L. R. A. 444, 35 S. .E. 243. |