instructions to enter a judgment according | bers, a clerk, a treasurer, a marshal who to the prayer of the complaint. shall be ex officio tax and license collector, a police justice who may be one of the jus RUDKIN, C. J., and PARKER, MOUNT, tices of the peace of the precinct in which and CROW, JJ., concur. STATE ex rel. PURDIN v. GAULT. (Supreme Court of Washington. Dec. 2, 1909.) JUDGES (4*)-POLICE COURTS-JUSTICES-SELECTION "MAY." Laws 1899, p. 135, c. 85, § 2, relating to justices of the peace in cities of the first class, declares that within 10 days after their election the mayor shall appoint one of the justices police judge of the city. Laws 1903, p. 202, c. 113, 4, relating to cities of the third class, provides that the government shall be vested in a mayor and council, to consist of five members, a clerk, treasurer, marshal, and police justice, who "may" be one of the justices of the peace of the precinct in which the town is situated. Held, that the word "may," in the latter act, should not be construed to mean "shall" or "must," and that the mayor of a city of the third class was therefore not limited to the elected justices of the peace for his selection of a police justice (citing Words and Phrases, vol. 5, p. 4420). [Ed. Note.-For other cases, see Judges, Dec. Dig. § 4.*] Department 2. Appeal Appeal from Superior Court, Kittitas County; E. B. Preble, Judge. Action by the State, on relation of R. Lee Purdin, against B. A. Gault. Judgment for defendant, and plaintiff appeals. Affirmed. E. E. Wager and Graves & McDaniels, for appellant. Hovey & Hale, for respondent. DUNBAR, J. In the year 1908 the relator, R. Lee Purdin, being one of the duly elected justices of the peace in and for Ellensburg, in Kittitas county, which is a city of the third class, was designated and constituted police justice by appointment of the mayor confirmed by the council. At the last general election the relator, Purdin, and one W. W. Bonney were elected justices of the peace in and for said precinct or city of Ellensburg; but in January, 1909, the mayor designated and appointed the defendant, B. A. Gault, as police justice. Gault was not, and did not claim to be, a justice of the peace. Thereupon the relator instituted this action. The cause was tried to the court, and judgment was rendered in favor of the defendant. This appeal is taken from that judgment. said town is situated; and such subordinate officers as are hereinafter provided for." It is the contention of the appellant that the statute contemplated the practice generally prevailing in the cities of the first class, which provides for the selection of the police justice from one of the justices of the peace elected; and it is argued that it is not to be presumed that the Legislature, while limiting the number of justice courts in cities of the first class and confining the appointment of police justice to one of the justices of the peace regularly elected therein, should confer larger powers upon cities of the third class, by giving to the mayor of the smaller cities discretionary authority to enlarge the number of justice courts by appointing one or more police justices in addition to the justices of the peace regularly elected, and that a legislative construction has been placed upon this enactment in Laws 1889-90, p. 196, c. 7, § 138 (Ballinger's Ann. Codes & St. § 962; Pierce's Code, § 3508), which is to the effect that: "There shall also be elected, as hereinafter specified, a police justice, or so many as the council may deem necessary. justice or justices so elected may be selected from the justices of the peace duly elected under the laws of the state of Washington, and while acting in city or town may hold office for that purpose anywhere within the city or town. Such justices of the peace shall have jurisdiction over all offenses defined by any ordinance of the city or town, and all other actions brought to enforce or recover any penalty, forfeiture," etc.. The section again providing, further on, that "all civil or criminal proceedings before such justice of the peace," etc. Many other questions are discussed by the appellant in support of his contention that the word "may," in the statute, should be construed as as mandatory and equivalent to "must." The A justice of the peace is an officer provided for by the Constitution, with jurisdiction prescribed by law under constitutional authority. The jurisdiction of a police justice is more limited, extending only to questions arising under the town or city ordinances. If the jurisdiction had been the same, there would have been no occasion for the Legislature to make provision for the latter. It is true that section 138, c. 7, p. 196, of the Laws of 1889-90 refers to these officers as justices of the peace; but, as was well said by the learned judge who tried the case: "The identity of two officers is determined, not by the name by which they may be called, but by the identity of their functions, and whatever the officer clothed only with This case presents the question whether, under the statute providing for the appointment by the mayor of a police justice in cities of the third class, any one other than one of the two justices of the peace regularly elected by the voters therein can be appointed to, or exercise the functions of, such office. Section 4 of chapter 113, p. 202, of the Laws of 1903, provides as follows: "The government of such town shall be vested in a mayor and council, to consist of five mem appears that the Legislature intended to the circumscribed jurisdiction conferred by [sions of the statute of mandatory words, it section 138 may be called, he is not in fact a justice of the peace in the ordinary statutory and constitutional sense of that word, because he has not the jurisdiction of such justice of the peace." Nor do we think that there is anything inconsistent with intelligent legislative intention in conferring power upon the council to appoint magistrates of this character beyond the number of justices of the peace provided for by law, for it cannot be said to be unwise to give this discretion to the city council, to be exercised for the best interests of the city, in view of all the existing conditions both as to the qualifications of the justices of the peace elected and the relative amount of business falling within the jurisdiction of the justice of the peace or within the more limited jurisdiction of the police justices. We see no constitutional invasion by this construction. Nor does it militate against this construction that the Legislature has adopted a different policy in regard to cities of the third class. In any event, it has seen fit to use the mandatory expression in one case and the permissive in the other. Section 2 of chapter 85, p. 135, Laws 1899, the act relating to justices of the peace in cities of the first class, is as follows: "Within ten days after such election the mayor of the city shall appoint one of the justices so elected the police justice or police judge of such city." There would seem to be no good reason why the Legislature should not have used the same language when legislating in regard to towns of the third class, if the intention had been to make it the duty of the mayor to appoint police justices from the justices elected. The learned counsel says he will not enter into any dogmatic definitions of the words "may" and "must." Yet it seems to us that this is a matter which necessarily must be considered. The word "may," according to its original construction, is permissive, and should receive that interpretation, unless such a construction would be obviously repugnant to the intention of the Legislature, to be collected from the terms of the act, This presumption, we think, has not been overcome by any avowed policy of the Legislature affecting officers of this kind, and the judgment of the lower court will therefore be affirmed. RUDKIN, C. J., and CROW, MOUNT, and PARKER, JJ., concur. STATE ex rel. CITY OF SOUTH BEND v. (Supreme Court of Washington. Dec. 3, 1909.) TRACT-RELIEF TO PARTY FAILING TO PAY. The general rule is that, where the considerations moving from each party are pracand hence failure to pay the consideration movtically concurrent, the contract is indivisible, ing to a public service corporátion is a bar to an action for not rendering the service under such a contract, brought by the party failing to pay. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 754-757; Dec. Dig. § 171.*] 2. ESTOPPEL (§ 92*)--CONTRACT_OF WATERWORKS COMPANY WITH CITY-ESTOPPEL TO PLEAD INDIVISIBILITY. the city has sued to compel it to supply water A municipal waterworks company, which to the city and its inhabitants as required by its franchise, is estopped to plead that its contract with the city is indivisible so as to city's failure to pay certain hydrant rentals, avoid compliance therewith on account of the where after it had been judicially determined that the city was powerless to do so, for a time at least, because it was indebted over its constitutional limit, the company elected to proceed with that portion of the contract elimi or would lead to some other inconvenience or absurdity. Medbury v. Swan, 46 N. Y. 200. "The question whether the word 'may' is to be construed as mandatory or discretionary has been much discussed, but the general rule is that the ordinary meaning of the word is: That there is involved a discretion, and it is to be construed in a mandatory sense only where such construction is necessary to give effect to the clear poli-nated. cy and intention of the Legislature; that, where there is nothing in the connection of the language or in the sense or policy of the provision to require an unusual interpretation, it will be given its ordinary meaning; When there is ambiguity in the terms of and that where, by the use in other provi- a contract, the courts will generally give it the [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 260-263; Dec. Dig. § 92.*] 3. CONTRACTS ($ 170*)-WATERS AND WATER COURSES (§ 200*)-CONSTRUCTION BY PAR TIES. construction placed on it by the parties, especially where they have acted under it for a great length of time, and more especially where, as in the case of a contract of a municipal waterworks company to supply water to a city and its inhabitants, it frequently promised during the many years it was operating thereunder to improve the system so that it could furnish water in compliance with the terms of the contract, which the company seeks to avoid on the ground that it is indivisible; the city having failed for a long time to comply with a certain portion, and the company proceeding with such portion eliminated. [Ed. Note. For other cases, see Contracts, Cent. Dig. & 753; Dec. Dig. § 170; Waters and Water Courses, Dec. Dig. 200.*] Department 2. Appeal from Superior Court, Pacific County; A. W. Frater, Judge. Application for mandamus by the State, on the relation of the City of South Bend, against the Mountain Spring Company to compel it to supply water as required by its franchise. From a judgment in favor of relator, the company appeals. Affirmed. Shepard & Flett, for appellant. Chas. E. Miller, Welsh & Welsh, and John I. O. Phelan, for respondent. DUNBAR, J. This is an appeal from a judgment for final writ of mandate entered by the superior court of Pacific county. The action was first brought in the name of the city as plaintiff, but by later stipulation the state was made plaintiff. Stated as briefly as possible, the amended complaint sets forth the granting of a franchise for constructing and operating waterworks in the city of South Bend, to the appellant, or rather to the South Bend Water Company, to whose rights the appellant succeeded, and it was authorized to build, operate, and maintain waterworks in the city under such provisions as are generally incorporated in franchises of this character. Among other things, it was required that the waterworks should be so constructed that the company would be able to furnish and maintain to the city and its inhabitants an adequate supply of pure, wholesome water for domestic, sanitary, and manufacturing purposes, and should be able to furnish for fire protection a certain amount, etc. It was also provided that there should be 25 hydrants at stated locations, and that the number of hydrants might be increased. Section 10 of the ordinance stated that the city agreed to use said hydrants at a rental of $7.50 per hydrant per month, to be paid out of the general fund, and a sufficient tax should be levied and collected annually to make the payments for hydrants rented, which tax should be irrepealable during the franchise. There were other provisions in relation to the right of the city to buy the waterworks under certain conditions and at certain times, and a provision requiring the grantee to change the then present source of supply when it became impure or inadequate. The complaint, in short, charged that the defendant had violated its franchise duty, and had neglected to furnish an adequate supply of water. The amended answer admitted the formal allegations of the amended complaint, assignment of franchise to defendant, and its operation and ownership of the plant, and denied all of the substantial charges of failure to give the required service, excepting that for brief periods and sundry times, owing to accident and other causes not due to its fault, there had been interruptions in its mains and stoppages in its supply, but alleged that they had been repaired and restored as rapidly as possible, admitting that a few of the residences had been placed at such an elevation that it was not possible to convey water to them. For a separate affirmative defense, the defendant pleaded: That, in July and August, 1891, negotiations were had with a view to the construction of a system of waterworks for the city, which was then of about 1,000 population. That it was agreed that the city should grant the franchise for 30 years, and, the South Bend Water Company should install and maintain 50 hydrants for fire protection, at the monthly rental of $7.50 each, and an ordinance to that effect was passed. That the terms of this contract were mutually interdependent and indivisible. That, to obtain the necessary capital and comply with the terms of the ordinance and afford proper security to investors, it was necessary that the company should have some certainty of a substantial income whereby it could meet its expenses of operation and fixed charges. That at that time the assessed valuation of the property of the city was $2,368,000, and there was no outstanding debt, except a bonded debt of $60,000. That, in reliance on this franchise and the hydrant rental, the company raised the necessary capital by loan and constructed this system. That as originally built it was operated by steam power; the works being partly constructed in 1891-92. That disputes arose between the company and the city as to the company complying with all the terms of the ordinance, litigation ensued, and compromise was agreed to, whereby, as a substitute for ordinance No. 100, the ordinance just above referred to, a new ordinance was passed, in similar terms, except that, instead of 50 hydrants, the company was to install and receive rent at the same rate for only 25 hydrants, with privilege on the part of the city to order an extension of mains, etc. That the city, in order to pay for the hydrant rental, was to raise money by general taxation. On April 3, 1893, ordinance No. 118 was passed by the city council as a substitute for said ordinance No. 100, and the company proceeded with the construction of its system, and installed the 25 hydrants by July 7, 1893, and supplied water through its said system to the inhabitants of the city, | failed to supply the water required by the and provided fire protection by means of ordinances. hydrants. On July 17, 1893, and until March On the first question there seems to be 1, 1894, the city issued and delivered its a dearth of authority on the particular propwarrants for hydrant rental; but none of ositions involved in this case. The appellant them has ever been paid. In consequence recognizes the inapplicability of the authoriof the general collapse of credit and decline ties generally, but cites, as instructive litigaof business throughout this and other states tion bearing on the principles involved in in 1893 and 1894, the city's business and this case, City of Winfield v. Winfield Water population were checked, and in 1894, 1895, Company, 51 Kan. 70, 32 Pac. 663, and the and 1896, the actual volume of business and companion case of Winfield Water Company population of the city progressively declined, v. City of Winfield, 51 Kan. 104, 33 Pac. and the assessed valuation progressively fell, 714; but the decisions in those cases fail while the city's debt rapidly grew. The as- to reach the contested proposition here. In sessment of June, 1892, was $1,908,000. In the first case cited, however, as bearing upon October, 1893, it was $520,000. The general the right of the city to bring this action for city debt in excess of the bonds in October, the benefit of the residents of the city, it is 1893, was $21,500, and in 1894 was about decided that there is no such privity between $26,000. The principal of the bonded debt the private citizen and the water company remained unpaid, and part of the accrued as would give the citizen a right to compel interest was unpaid. The assessed valua- the company to perform its contract with tion of the city at no time since 1894 has exceeded $1,000,000. By reason of the default of the city to pay its hydrant warrants, the South Bend Water Company became embarrassed, and a mortgage foreclosure suit in the United States Circuit Court in 1894 resulted in a receivership, and the receiver for some time operated the property by order of the court. By order of the court he also brought an action against the city to recover the hydrant rentals, and upon a trial on the merits in the United States Circuit Court in 1895 judgment for the defendant was entered, upon the ground that, although the city was not indebted in excess of its constitutional limit when the franchise by ordinance 118 was granted, it was so indebted when the hydrant service began in July, 1895, and so remained, and that the city, under the state Constitution, could not incur any indebtedness for hydrant service under said franchise when it was indebted over its constitutional limit. Upon a writ of error to the United States Circuit Court of Appeals from this judgment, it was affirmed. On account of financial embarrassment and decline of income, the South Bend Water Company was reorganized, and this defendant was incorporated by its creditors and principal stockholders in 1895. The franchise and waterworks were acquired, the motive power was changed from steam to gravity, the original source of water supply was abandoned, and other sources obtained. Upon the trial of the cause, the court found that the defendant had failed to supply water as alleged in the complaint, in violation of its contract, and the writ of mandate was issued as prayed for. From such order this appeal is prosecuted; the contentions being: (1) That there was no obligation on the part of the defendant to comply with the contract, for the reason that the contract made with the city was an entire contract; and (2) that the trial of the cause resulted in the showing that the defendant as a matter of fact had not the city, and, further, that it is not only the privilege, but the duty, of the city to compel the water company to furnish the citizens with water in accordance with its contract. This question, however, is set at rest in this case by the intervention of the state, and further by stipulation of the parties that the defendant would raise no objection to the form and nature of the action, and that the case should be tried upon its merits. It must be admitted that the case is beset with difficulties, and that injustice to a certain extent will be inflicted whichever way it may be determined. There is much force in the contention of learned counsel for appellant that this should be construed to be an entire or indivisible contract, and it is urged with reason that the water company had a right to rely upon the performance by the city. of its part of the contract, and that such reliance might have been the controlling motive in incurring the obligations binding on the company; and it is argued that, where the considerations moving from each party to the other are practically concurrent, the contract is indivisible, and that the failure to pay the consideration moving to the public service corporation is therefore a bar to an action for not rendering the service which it is obligated to render under the contract, when the action is brought by the party failing to pay. This is no doubt the general rule; but peculiar conditions are involved in this transaction, and these conditions must be taken into account. In entering into this contract, the city acted in a dual capacity. It acted for the city, and stipulated for the protection of the city's property. It also acted as agent for the residents of the city, which, as we have seen, it was its duty to do; the residents as individuals being practically powerless to obtain water, having no control of the streets of the municipality. And the contract for the rental of the hydrants was evidently a contract in the interest of the city as such; but, whether the contract is On the merits of the case, a careful examination of all the testimony convinces us that the findings of the trial court are fully justified. There being no error committed by the court in the admission or rejection of testimony, or in any other respect, the judgment is affirmed. RUDKIN, C. J., and CROW, MOUNT, and PARKER, JJ., concur. technically divisible or indivisible, if the the- | water in compliance with the terms of the ory contended for by appellant should pre- contract. vail, the residents of the city would be left remediless because, if the company can violate one part of its contract because of, the failure of the city to pay its hydrant rental, it can with perfect impunity violate all of them in whole or in part. It has already lowered its plant 132 feet, thereby necessarily reducing the altitude of its operations and making the water system ineffectual to a portion of the city which was within its reach before. By the same token it can reduce it 132 feet more, and still further incapacitate itself. It can violate the ordinances in relation to prices charged, and plead in extenuation the failure of the city to pay its hydrant rentals. It can refuse to supply the residents of the city with pure water for domestic purposes or for any other purpose, except under conditions it sees fit to impose, without restraint or control, until the condition would become intolerable; while, at the same time, it is operating under the laws governing public service corporations, and enjoying special privileges, using and occupying the streets of the city, protected in such use and occupancy by the franchise which it obtained through this very contract which it now says cannot be enforced against it. If the city were now seeking to compel the company to furnish water for the operation of the hydrants for fire purposes and to comply with its contract in that respect, while it refused to pay the rental, the posi-Dig. § 73; Dec. Dig. § 38.*] tion of the appellant would be unassailable; or if the company had abandoned the contract as an entirety when it was breached by the city, and had vacated the streets, we apprehend the city would not have had power to compel the performance of a contract a portion of which it had failed to comply with. But in this case, after it had been judicially determined that the city was powerless to comply, for a time at least, with that part of the contract concerning the hydrant rentals, the company elected to proceed with the contract with that portion eliminated, and it is now estopped from pleading its indivisibility, for it cannot claim the benefit of that portion of the contract which subserves its interest and repudiate that portion which provides for the performance of a duty on its part. By its own act it has placed the construction of divisibility on this contract, and it has operated for many years under this construction. It is elementary that, where there is an ambiguity in the terms of a contract, courts will generally give it the construction placed upon it by the parties to it, especially where they have acted under it for a great length of time, and more especially where, as is shown by the testimony in this case, the water company has frequently promised during all these years to improve the system so that it could furnish ST. DENNIS v. HARRAS. (Supreme Court of Oregon. Nov. 30, 1909.) 1. LANDLORD AND TENANT (§ 123*)-LEASEMATTERS OF DESCRIPTION. St. D. ranch," containing 640 acres, and locatWhere a lease described the land as the "J. ed on a certain reservation, land sought to be included as intended by the parties must be identified by the name "J. St. D. ranch," consisting of 640 acres. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 436; Dec. Dig. § 123.*] 2. DEEDS (§ 38*)-REQUISITES-DESCRIPTION— SUFFICIENCY. The description of the property conveyed must be sufficient to identify it with reasonable certainty, but, since that is certain which can be made certain, a tract may be conveyed by a distinguishing name by which it is known, without reference to the boundaries. [Ed. Note.-For other cases, see Deeds, Cent. 3. LANDLORD AND TENANT (§ 123*)-LEASESDESCRIPTION OF PROPERTY-SUFFICIENCY. A lease of land known as the "J. St. D. ranch" sufficiently described the land if the name referred to is a definite tract, but the name tity included therein, notwithstanding a statemust control the boundaries as well as the quanment in the lease that such ranch consisted of a certain number of acres. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 435; Dec. Dig. § 123.*] 4. LANDLORD AND TENANT (§ 123*)-LEASESLAND INCLUDED. In an action to cancel a lease for fraud, in which defendant filed a cross-bill to reform it by including lands therein which the parties intended to include, facts held to show that the land sought to be included was land which plaintiff had no right to lease, and could not have intended to include therein. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 436; Dec. Dig. § 123.*] 5. LANDLORD AND TENANT (§ 28*)-FRAUD. In an action to cancel a lease for fraud, in which defendant filed a cross-bill to reform it by including land therein which he claimed the parties intended to include, evidence held to show bad faith by defendant in inducing plaintiff to include more land in the lease than he owned or had a right to lease. [Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 28.*] 6. REFORMATION OF INSTRUMENTS (§ 25*)-DEFENSES-FRAUD. of land described as the "J. St. D. ranch" reDefendant was not entitled to have a lease formed so as to include certain land therein, where he was guilty of bad faith in inducing For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |