6. Nor do we think the contract objection cise of its police power, regulate the manner | ity of the water furnished under the conin which it may be carried out, or may ab- tract of the company, the payment of its rogate it entirely, upon the principle that it just contributions to the public burdens, and cannot bind itself to any course of action the observance of its own ordinances respectwhich shall prove deleterious to the health ing the manner in which the pipes and mains or morals of its inhabitants. In such case of the company should be laid through the an appeal to the contract clause of the Con- streets of the city. New York [New York stitution is ineffectual. Thus, in Northwest- Electric Lines] v. Squire, 145 U. S. 175 [36: ern Fertilizing Co. v. Hyde Park, 97 U. S. 666]; *St. Louis v. Western Union Teleg. Co. [17] 659 [24: 1036], an act of the general assem- 148 U. S. 92 [37:380]; [Missouri] Laclede bly of Illinois authorized the fertilizing com- Gaslight Co., v. Murphy, 170 U. S. 78 [42: pany to establish and maintain for fifty 955]. But where a contract for a supply of years certain chemical works for the pur- water is innocuous in itself, and is carried pose of converting dead animals into agri-out with due regard to the good order of the cultural fertilizers, and to maintain depots city and the health of its inhabitants, the in Chicago for the purpose of receiving and aid of the police power cannot be invoked to carrying out of the city dead animals and abrogate or impair it. other animal matter which it might buy or own. Subsequently the charter of the vil-able in its stipulation that the city would [16] lage of Hyde Park was revised, and *power not erect waterworks of its own during the given it to define or abate nuisances injur- life of the contract. There was no attempt ious to the public health. It was held that made to create a monopoly by granting an under this power the village had the right exclusive right to this company, and the to prohibit the carrying of dead animals or agreement that the city would not erect waoffensive matter through the streets; that terworks of its own was accompanied, in the charter of the company was a sufficient section 8 of the contract, with a reservation license until revoked, but was not a contract of a right to take, condemn, and pay for the guaranteeing that the company might con- waterworks of the company at any time durtinue to carry on a business which had be- ing the existence of the contract. Taking come a nuisance by the growth of popula- sections 7 and 8 together, they amount simtion around its works, or that it should be ply to this: That if the city should desire exempt for fifty years from an exercise of to establish waterworks of its own it would the police power of the state, citing Coates do so by condemning the property of the comV. Mayor, etc. of New York, 7 Cow. 585. pany, and making such changes in its plant or such additions thereto as it might deem desirable for the better supply of its inhabitants; but that it would not enter into a direct competition with the company during the life of the contract. As such competition would be almost necessarily ruinous to the company, it was little more than an agree ment that the city would carry out the contract in good faith. Substantially the same ruling was made in Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & 8. H. Co. 111 U. S. 746 [28: 585], wherein an act of the legislature of Louisiana, granting exclusive privileges for maintaining slaughterhouses, was held to be subject to subsequent ordinances of the city of New Orleans opening to general competition the right to build slaughterhouses. The same principle has been applied to charters for the maintenance of lotteries, which, upon grounds of public policy, have been held to be mere licenses and subject to abrogation in the exercise of the police power of the government (Boyd v. Alabama, 94 U. S. 645 [24: 302]; Stone v. Mississippi, 101 U. S. 814 [25: 1079]; Douglas v. Kentucky, 168 U. S. 488 [42: 553]), as well as to laws regulating the liquor traffic (Boston Beer Co. v. Massachusetts, 97 U. S. 25 [24: 989]; Metropolitan Board of Excise v. Barrie, 34 N. Y. 57), and even laws regulating the inspection of coal oil (United States v. De Witt, 9 Wall. 41 [19: 593]; Patterson v. Kentucky, 97 U. S. 501 [24: 1115]). In the latter case it was held that a person holding a patent under the laws of the United States for an invention was not protected by such patent in selling oil condemned by a state inspector as unsafe for illuminating purposes. An agreement of this kind was a natural incident to the main purpose of the contract, to the power given to the city by its charter to provide a sufficient supply of water, and to grant the right to use the streets of the city for the purpose of laying water pipes, to any persons or association of persons for a term not exceeding twenty-five years. In establishing a system of waterworks the company would necessarily incur a large expense in the construction of the power house and the laying of its pipes through the streets, and, as the life of the contract was limited to twenty-five years, it would naturally desire to protect itself from competition as far as possible, and would have a right to expect that at least the city would not itself enter into such competition. It is not to be supposed that the company would [18] have entered upon this large undertaking in view of the possibility that, in one of the sudden changes of public opinion to which all municipalities are more or less subject, Under this power and the analogous power the city might resolve to enter the field itof taxation we should have no doubt that self,-a field in which it undoubtedly would the city council might take such measures as have become the master, and practically were necessary or prudent to secure the pur-extinguish the rights it had already granted to the company. We think a disclaimer of would apply though bonds were issued therethis kind was within the fair intendment of for made payable in the future. Buchanan the contract, and that a stipulation to that v. Litchfield, 102 U. S. 278 [26: 138]; Cul effect was such a one as the city might law-bertson v. Fulton, 127 Ill. 30; Coulson v. fully make as an incident of the principal undertaking. Cases are not infrequent where under a 'general power to cause the streets of a city to be lighted, or to furnish its inhabitants with a supply of water, without limitation as to time, it has been held that the city has no right to grant an exclusive franchise for a period of years; but these cases do not touch upon the question how far the city, in the exercise of an undoubted power to make a particular contract, can hedge it about with limitations designed to do little more than bind the city to carry out the contract in good faith and with decent regard for the rights of the other party. The more prominent of these cases are Minturn v. Larue, 23 How. 435 [16: 574]; Wright v. Nagle, 101 U. S. 791 [25: 921]; State [Atty. Gen.] v. Cincinnati Gaslight & Coke Co. 18 Ohio St. 262; Logan v. Pyne, 43 Iowa, 524 [22 Am. Rep. 261];Jackson County Horse R. R. Co. v. Interstate Rapid Transit Co. 24 Fed. Rep. 306; Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 19; Saginaw Gaslight Co. v.Saginaw, 28 Fed. Rep. 529; Grand Rapids Electric Light and Power Co. v. Grand Rapids Edison Electric Light & Fuel Gas Co. 33 Fed. Rep. 659; Gale v. Kalamazoo, 23 Mich. 344 [9 Am. Rep. 80]. These cases furnish little or no support to the proposition for which they are cited. Portland, Deady, 481; State [Read], v. Atlantic City, 49 N. J. L. 558; Spilman v. Par. kersburg, 35 W. Va. 605; Beard v. Hopkins ville, 95 Ky. 239 [23 L. R. A. 402]. There are also a number of respectable authorities to the effect that the limitation covers a case where the city agrees to pay a certain sum per annum, if the aggregate amount payable under such agreement exceeds the amount limited by the charter. Niles Waterworks v. Niles, 59 Mich. 311; [State],, Humphreys, v. Bayonne, 55 N. J. L. 241; Salem Water Co. v. Salem, 5 Or. 29. But we think the weight of authority, as well as of reason, favors the more liberal construction that a municipal corporation may contract for a supply of water or gas or like necessary, and may stipulate for the payment of an annual rental for the gas or water furnished each year, notwithstanding the aggregate of its rentals during the life of the contract may exceed the amount of the indebtedness limited by the charter. *There [20] is a distinction between a debt and a contract for a future indebtedness to be incurred, provided the contracting party perform the agreement out of which the debt may arise. There is also a distinction between the latter case and one where an absolute debt is created at once, as, by the issue of railway bonds or for the erection of a public improvement,-though such debt be pay. able in the future by instalments. In the one case the indebtedness is not created until the consideration has been furnished; in the other the debt is created at once, the time of payment being only postponed. If, as alleged in the answer, the water company failed to carry out its cortract, and the supply furnished was inadequate for domestic, sanitary, or fire purposes, and the pressure so far insufficient that in many parts of the city water could not be carried above the first story of the buildings, the 7th section of the contract furnished an ade[19] quate and *complete remedy by an application to the courts to declare the contract void. 7. The objection that the indebtedness created by this contract exceeds the amount authorized by the charter raises a serious, though by no means a novel, question. The objection is founded upon section 105 of the charter, which enacts "that the limit of indebtedness of the city of Walla Walla is hereby fixed at fifty thousand dollars," and upon the allegation in the bill, that the city, at the date of the contract, was indebted in a sum exceeding $16,000. The city, by section 5 of its ordinance and contract with the water company, agreed to pay a rental of $1,500 per annum for twenty-five years, or an aggregate amount of $37,500, which, added to the existing indebtedness of $16,000, would create a debt exceeding the lim-769]; Valparaiso v. Gardner, 97 Ind. 1 [49 ited amount of $50,000. There is a considerable conflict of authority respecting the proper construction of such limitations in municipal charters. There can be no doubt that if the city proposed to purchase outright, or establish a system of waterworks of its own, the section In the case under consideration the annual rental did not become an indebtedness within the meaning of the charter until the water appropriate to that year had been furnished. If the company had failed to furnish it, the rental would not have been payable at all, and while the original contract provided for the creation of an indebtedness, it was only upon condition that the company performed its own obligation. Wood v. Partridge, 11 Mass. 488, 493. A different construction might be disastrous to the interests of the city, since it is obviously debarred from pur. chasing or establishing a plant of its own exceeding in value the limited amount, and is forced to contract with some company which is willing to incur the large expense necessary in erecting waterworks upon the Smith v. Dedham, 144 Mass. 177; Crowder v. faith of the city paying its annual rentals. Sullivan, 128 Ind. 486 [3 L. R. A. 647]; Saleno v. Neosho, 127 Mo. 627 [27 L. R. A. New Orleans, 42 La. Ann. 188; Merrill R. & Am. Rep. 416]: New Orleans Gaslight Co. v. Lighting Co. v. Merrill, 80 Wis. 358; Weston v. Syracuse, 17 N. Y. 110; East St. Louis v. East St. Louis Gaslight & Coke Co. 98 Ill. 415 [38 Am. Rep. 97]; Grant v. Davenport, 36 Iowa, 396; Lott v. Waycross, 84 Ga. 681; Burlington Water Co. v. Woodward, 49 Iowa, 58. We are of opinion, however, that the general act of 1881 was, so far as it applied to the city of Walla Walla, superseded by the charter of November 28, 1883, which provided that the city might enter into contracts for the purpose of supplying its inhabitants with water without any further re The obvious purpose of limitations of this kind in municipal charters is to prevent the improvident contracting of debts for other than the ordinary current expenses of the municipality. It certainly has no reference to debts incurred for the salaries of munici-quirement that an election should be held to pal officers, members of the fire and police de- ratify such contract. That no such ratificapartments, school-teachers, or other salaried tion by the electors was intended is also evi[21] employees to whom the city necessarily be- dent from section 11 of the charter, which comes indebted in the ordinary conduct of enacts that no waterworks shall be erected municipal affairs, and for the discharge of by the city without a vote of a majority of which money is annually raised by taxation. its freeholders. The fact that such ratificaFor all purposes necessary to the exercise of tion was required where waterworks were to their corporate powers they are at liberty to be erected, and that no mention was made of make contracts regardless of the statutory a vote where the city contracted with a corlimitation, provided, at least, that the poration for such purpose, clearly evinces an amount to be raised each year does not ex-intent on the part of the legislature to perceed the indebtedness allowed by the charter. mit the city to make a contract for a limited Among these purposes is the prevention of term without appealing to the people for fires, the purchase of fire engines, the pay of their assent. While the special act is silent firemen, and the supply of water by the pay- with reference to the ratification of contracts ment of annual rentals therefor. to supply water, we think the maxim, Expressio unius est exclusio alterius, is applicable, and that it was clearly the intention of the legislature to supersede the general law in that particular, leaving the general law to stand where it is proposed that the city shall erect and maintain waterworks of its own. It is true that in the case of Lake County v. Rollins, 130 U. S. 662 [32: 1060], it was held by this court that a similar provision in the Constitution of Colorado was an absolute limitation upon the power to contract any and all indebtedness, including warrants used for county expenses, such as for witness and jurors' fees, election costs, charges for board of prisoners, county treasurer's commissions, etc.; but the case is readily distinguishable from the one under consideration. That was a suit against a county upon a large number of warrants for current expenses, the defense being a want of authority on the part of the county commissioners to issue warrants which had been put forth after the limit of indebtedness had been reached and even exceeded. They were held to be void. The case is authority for the proposition that if the annual rentals, payable in this case, with the other expenses, exceeded the limit of indebtedness, the transaction would be void; but as it appears that the limit of indebtedness was $50,000 and the amount of the city debt but $16,000, it is clear that the payment of an annual rental of but $1,500 would be unobjectionable upon this ground. If such annual rentals exceeded the limit of indebtedness a different question would be presented. 9. Finally, it is argued that upon the facts of this case it clearly appears that the plaintiff company has failed to comply with its contract to furnish an ample supply of good and wholesome water; that the pressure in the mains was not sufficient for fire protection or for domestic purposes and irrigation of lawns; that the pressure was not a sufficient supply for satisfactory use in the second stories of buildings; that several of the city additions are higher than the reservoir, and cannot be supplied from them, etc. We are of opinion, however, that these facts cannot be set up in defense to this bill. [23] By the express provision of section 7 of the contract ordinance, it was made voidable by the city of Walla Walla so far as it required the payment of money, upon the judgment of a court of competent jurisdiction, whenever there should be a substantial failure of supply, or a failure on the part of the company to keep or perform any agreement on its part specified in the contract, and until "so avoided" the city would not erect waterworks of its own. Had the city failed to pay its quarterly rentals we should have no doubt that in an action to recover the same it might set up the failure of the company to perform its contract. Perhaps it might itself institute an action for that purpose, but we do not think it within the power of the city to constitute itself the judge, and to proceed to erect waterworks of its own upon the theory that the company had failed to carry 8. Further objection is made to this contract upon the ground that it is violative of a general statute of the territory of Washington, enacted December 1, 1881, authorizing cities, etc., to provide for a supply of water. By the first section of this act all cities are authorized to contract, for a term not exceeding twenty-five years, with corporations for a supply of water; but section 2 states [22] that, before any such contract *shall be entered into, the terms of the proposed contract shall be submitted to a vote of the tax-out its contract, without, in the language of payers at a special election to be called by the council after a notice of three weeks. As no such election was held to ratify the contract in this case, it is insisted that the city council was never authorized to enter into it. section 7, obtaining the judgment of a court of competent jurisdiction to that effect. As the section provides the manner in which the failure of the company shall be legally established, we think the city was bound to pursue this course before taking steps to erect [24] waterworks of its own. We have already | ders, mate of the American vessel Olive held that so long as the contract remained Pecker, and sentenced to death. The case in force the city had no right to establish was brought to this court on error and the waterworks, but under section 7 of the ordi- judgment was affirmed May 9, 1898. 170 nance and contract the failure of the com- U. Š. 481 [42: 1116]. The mandate having pany to furnish a sufficient supply did not of gone down, execution of the sentence was itself avoid the contract. It rendered the fixed for August 26, 1898. On that day (H. contract voidable, not void. The city was G. Miller and P. J. Morris assuming to act bound to procure its nullity before the courts as his counsel), Andersen filed a petition in before it could treat it as void. Whether if the district court of the United States for a sudden emergency arose, requiring imme- the eastern district of Virginia, praying for diate action on the part of the city to pro- a writ of habeas corpus, on the ground that cure a further supply or to preserve the he was held in custody for execution "in viohealth of its inhabitants, a preliminary lation of the laws and the Constitution of avoidance of the contract would be necessary, the United States of America,” in that he is a question not involved in this case, and had been deprived "of the free exercise of upon which we express no opinion. There his rights to be represented by counsel, in was no pretense that the water was impure, accordance with article 6 of the Amendment and the evidence was conflicting upon the of the Constitution of the United States." sufficiency of the supply. *The petition stated: Upon the whole case, we are of opinion that the decree of the Circuit Court must be affirmed. JOHN ANDERSEN, Appt., บ. MORGAN TREAT, United States Marshal for the Eastern District of Virginia. (See S. C. Reporter's ed. 24-31.) "Your petitioner represents that on the 7th day of November, 1897, he was delivered to the United States marshal for the eastern district of Virginia, charged with having committed the crime of murder within the maritime jurisdiction of the United States of America; that as a prisoner of the said United States marshal he was confined on the day of his delivery in the city jail in the city of Norfolk to await his examination, as provided by law, before the United States commissioner for the eastern district of Vir Refusing prisoner a consultation with his ginia; that on that day, viz., the 7th day of counsel. November, 1897, while thus detained in the city jail of the city of Norfolk, he employed The refusal to permit counsel engaged by a pris-as counsel to represent him one P. J. Morris, oner to have a consultation with him before an attorney at law, residing in the city of the district attorney had seen and examined Norfolk, Virginia. him is not ground for attacking a conviction by habeas corpus, when the prisoner waived examination before a commissioner, and was represented on the trial by counsel assigned to him at his own request, and the statement made by him to the district attorney was voluntary and was not put in evidence, and no objections were raised to questions asked him on the stand as to what he said on that occasion, and no witnesses were called to contradict his answers. [No. 415.] Argued November 8, 1898. Decided ber 14, 1898. "Your petitioner further represents that after securing the services of the said Morris, on the same day the said Morris called at the city jail (the place of the detention of your petitioner), and asked permission to see your petitioner to consult with him as attorney and client. Your petitioner represents that admission was refused my said attorney, for the reason that the district attorney of the United States for the eastern district of Virginia had instructed the jailer and others in charge of your petitioner to Novem-allow no one, without exception, to see your petitioner; whereupon your petitioner represents that on the 7th day of November, 1897, was detained, your petitioner was denied the right of the assistance of counsel to represent your petitioner. APPEAL from an order of the District my said attorney asked permission, by Court of the United States for the East- phone, of the district attorney for the eastern District of Virginia denying a writ of ern district of Virginia, to permit him to habeas corpus for which a petition was filed visit the said jail and consult with your peby John Andersen, who was held in custody titioner; that said application was refused, by Morgan Treat, United States marshal, for and that, on account of the order of the disexecution, in pursuance of a judgment con- trict attorney lodged with the jailers and victing him of murder, rendered by the Cir-keepers of the prison in which your petitioner cuit Court of the United States for the Eastern District of Virginia. Affirmed. Statement by Mr. Chief Justice Fuller: John Andersen was indicted in the circuit court of the United States for the eastern district of Virginia, at the November term thereof, A. D. 1897, and, December 23, 1897, convicted of the murder, on August 6, 1897, on the high seas, of William Wallace Saun "Your petitioner further represents that the district attorney for the eastern district of Virginia informed your petitioner's counsel on the night of the 7th of November, 1897, that he would let him know on the following day whether or not permission would be granted your petitioner's counsel [25] [26] to consult with your petitioner. Your peti- | of this court as of the said 8th day of Notitioner represents that, instead of inform-vember, A. D. 1897.” 14 referred in its title to five indictments against Andersen, numbered 234, 235, 236, 239, and 240, two of said indictments being for arson on the high seas; two of them for the murder of Saunders; and one for the murder of John W. Whitman. 2. A statement dated at Norfolk, Virginia, November 9, 1897, and signed by P. J. Morris, as counsel for Horsburgh, Lind, Barrial, Barstad, and March, which, referring to the United States district attorney, declared: ing my said attorney and giving my No indictment had been found November said attorney full notice as to the time when 8, but the nuno pro tunc order of December your petitioner's preliminary hearing would be held, and before the United States district attorney for the eastern district of Virginia had given my said attorney permission to consult with me, I was taken in irons, handcuffed, to the office of the United States commissioner and examined, without aid or presence of my attorney. Your petitioner further represents that, before the time the said examination was completed and statements made by me were finished, my said attorney discovered that said examination was going on without his presence and before any consultation could be held between your petitioner and his said attorney, and my said attorney thereupon applied to the said district attorney of the United States and to the Honorable Robert W. Hughes, late judge for the eastern district of Virginia, and was told by them that, as the defense of your petitioner was inconsistent with the defense of others charged at the same time with complicity in the destruction of the vessel, Olive Pecker, that any attorney representing both prisoners was objectionable, and that the court would not permit the same attorney to represent both your petitioner and the other prisoners, and therefore the court would assign him an attorney to represent him. Your petitioner therefore represents that he was deprived of the free exercise of his rights to be represented by counsel, in accordance with article 6 of the Amendment of the Constitution of the United States, and that therefore the action of the court in depriving him of the right to select his own counsel the court exceeded its power and jurisdiction, and that therefore the trial and proceedings therein are null and void, and that the judgment and the sentence of the court are void and in violation of his constitutional rights, as he will show." "Mr. White, in this case, as in all others, has shown me the utmost consideration. Yesterday morning, when I went up to the office of Mr. White, I found he was about to examine the prisoners, and told him that I expected to be employed by them. Mr. White informed me that he had not himself talked with the men, and that it was imperatively necessary that he should do so in order to judge which would be indicted and which might be needed only as witnesses; that as soon as he had completed that and the men had employed me, they would be at my disposal. I acquiesced in the propriety of this position. The men were in custody of the United States marshal and in the United States marshal's room after this preliminary examination, which I understand was voluntary on the part of the prisoners, and before it was finished I applied to Judge Hughes to give me permission to see the men, who were [28] then in the United States marshal's custody and in his office. This was done, and five of the men then in writing employed me, and I then gave this writing to Mr. White. "I desire distinctly to say that in this matter Mr. White has done nothing which justifies any criticism on my part, and I have to thank him in this, as in other matters, for courtesies of a very considerate character." 3. The writing referred to was dated NoThe matter came on for hearing on the pe-vember 8, addressed to the judge of the tition, together with an order and certain papers, which were made part of the proceedings by consent of parties, and were as follows: 1. The order was entered by District Judge Hughes on December 14, 1897. nunc [27] pro tunc as of November 8, and read: "The court having, on the 8th day of November, 1897, upon its own motion, as well as upon the request of the accused, John Andersen, assigned George McIntosh, Esq., as counsel for the said John Andersen, under and by notice of section 1034 of the Revised Statutes of the United States, and it appearing to the court that he has since then performed the duties of such counsel and has been recognized as such by this court in all proceedings had herein. "And it further appearing that no entry of said assignment was made in the minutes of this court for the said 8th day of November, A. D. 1897, it is hereby ordered that the said assignment be now entered by the clerk United States court at Norfolk, and signed by Horsburgh, Barstad, March, Barrial, and Lind, who thereby authorized "P. J. Morris to represent us in all the courts of the Unit ed States in any and all cases pending against us and to be presented against us connected with the charges against us growing out of the burning of the vessel ‘Ŏ. H. Pecker.' 4. A letter addressed to P. J. Morris, attorney at law, dated at Norfolk, November 7, 1897, signed by Horsburgh, March, Barstad, Lind, and Barrial, stating: "We desire counsel and request an interview with charge now pending in the court of the you, in order to arrange for our defense of United States." This note was indorsed by Judge Hughes, November 8, 1897, as follows: "The prisoners mentioned in this paper are entitled to be seen at any time and at all times by their counsel. Mr. P. J. Morris is hereby authorized to see and confer with these prisoners whenever he or they think fit." |