opinion upon this subject, and after the reading of some other wellreasoned opinions, it is not probable, we think, that this proposition will ever commend itself to the favorable consideration of that court. In the case of Hamilton Gas Light & Coke Co. v. Hamilton City, 146 U. S., at page 268, 13 Sup. Ct. 93, 36 L. Ed. 963, the Supreme Court, Justice Harlan delivering the opinion, said:

"It may be that the stockholders of the plaintiff supposed at the time it became incorporated, and when they made their original investment, that the city would never do what is evidently contemplated by the ordinance of 1889, and it may be that the erection and maintenance of gasworks by the city at the public expense, in competition with the plaintiff, will ultimately impair, if not destroy, the value of the plaintiff's works for the purpose for which they were established; but such considerations cannot control the determination of the legal rights of the parties."

Again, in the same case it is said:

"If parties wish to guard against contingencies of that kind, they must do so by such clear and explicit language as will take their contracts out of the established rule that public grants, susceptible of two constructions, must receive the one most favorable to the public."

In Stein v. Bienville Water Supply Co., 141 U. S. 67, 11 Sup. Ct. 892, 35 L. Ed. 622, the Supreme Court said:

"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 granting to other persons the privilege of supplying, during the same period, the same corporation and same people with water drawn in like manner from a different stream or river."

A very instructive case is the case of North Springs Water Co. v. City of Tacoma, 58 Pac. 773, 47 L. R. A. 214, where it was directly held by the Supreme Court of the state of Washington that the grant of a franchise to a water company, without any words of exclusion or of limitation upon the right of the city, did not preclude the city from subsequently establishing waterworks of its own, although the result would be to destroy the value of the franchise.

Our conclusion is that, if the city was lawfully authorized, under the Constitution and the statutes of the state of South Dakota, to construct and maintain its own waterworks in the way it threatens, and was proceeding to accomplish this end, then neither the franchise nor privilege granted to Kuhn and his assigns, nor any of the provisions of the city's contract with him, nor the investment made thereunder and its threatened loss furnish any tenable ground to invoke the aid of a court of equity to prohibit the city from constructing and operating its own waterworks. State ex rel. Hamilton Gas & Coke Co. v. Hamilton, 47 Ohio St. 52, 23 N. E. 935; Westerly Waterworks Co. v. Westerly (C. C.) 80 Fed. 611; Thomson-Houston Electric Co. v. Newton (C. C.) 42 Fed. 723; Colby University v. Canandaigua (C. C.) 69 Fed. 671; Long v. Duluth, 49 Minn. 280, 51 N. W. 913, 32 Am. St. Rep. 547; In re Borough of Millvale, 162 Pa. 375, 29 Atl. 641, 644; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165; Syracuse Water Co. v. Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546.

The question remains, has the city the lawful right, under the Constitution and the law, to construct and operate its own plant, and thereby inflict upon the complainant and upon the water company the irreparable injury which must follow its maintenance, and to tax their property to pay a part of the expenses of committing this injury? If its proposed action is in compliance with the Constitution and the law, it is justifiable, and the complainant and the water company are without remedy for the grave loss they must sustain. On the other hand, if its threatened action is in violation of the Constitution of the state, or if it is without lawful authority under the statutes, then its action is wrongful, unjustifiable, and, as the injury which will be inflicted upon the complainant and the water company must be irreparable, this wrongful action furnishes an unanswerable reason for the granting by a court of equity of the relief which they seek.

It is contended that the right of the complainant and the water company to restrain the city from constructing its works and taxing the property of the complainant and the water company, upon the ground that the city has proceeded without authority of the statute, and in violation of the Constitution, may not be litigated in this case, because it is not a cause of action of the complainant, but one brought into the case by the cross-bill of the water company, separate from, and not germane to, the issues presented by the original bill and answer. A cross-bill which presents a matter that is not a subject of litigation between the complainant and the defendants or between the defendant who presents the cross-bill and the complainant, and which does not aid in the determination of any of the issues presented in the original suit, is demurrable, and must be dismissed; but the right here asserted is the right to relief against irreparable damage to the property of the complainant and the property of the water company alike, arising from the alleged illegal construction of the city waterworks and the alleged illegal taxation of the property of both complainant and the water company. It is a cause of action of the complainant, because the depreciation of the property will deprive the complainant of the security for the payment of the bonds, and the increased taxation and damage to the property is clearly alleged in the original bill. Our conclusion is that the question is presented whether or not the contemplated injury to the security of the complainant by the threatened competition and taxation entitles the complainant to relief in case the city is proceeding without authority of law or in violation of the Constitution, and hence is in the position of a wrongdoer.

It now appears that the water company has invested in its waterworks system at Sioux Falls an amount in excess of $481,000; that the property created as a result of this investment has been lawfully acquired and is legally held; that the complainant has an interest in the property and the revenues derivable from the operation of the same to the extent of the indebtedness which the trust deed secures. The water company is the owner of the legal title. This property, being so situated, is entitled beyond question to the protection of the law of the land. No person or corporation may invade

such rights of property as are held by the complainant and the water company, except in pursuance of law. As the establishment and operation of a system of waterworks by the city will practically ruin the security of the complainant and the property of the water company, the serious question in this case is whether the city has proceeded in accordance with the law. If not, the injunction must be issued, because the complainant and the water company have no adequate remedy at law. It must be conceded that where a municipality is prohibited from incurring any indebtedness for the construction of a system of waterworks except under certain conditions, then that municipality has no power to construct a system of waterworks by means of the incurring of an indebtedness if these conditions do not exist. In other words, where a city has no power to incur an indebtedness for a particular purpose, it has no power to accomplish that purpose, or any part thereof, by means of the incurring of an indebtedness. Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532; City of Helena v. Mills, 94 Fed. 916, 36 C. C. A. 1; City of Walla Walla v. Walla Walla Water Co., 19 Sup. Ct. 77, 43 L. Ed. 341; Grant v. City of Davenport, 36 Iowa, 396; City of East St. Louis v. St. Louis Gaslight & Coke Co., 98 Ill. 415, 38 Am. Rep. 97; Merrill Railway & Lighting Co. v. City of Merrill, 80 Wis. 358, 49 N. W. 965; Prince v. City of Quincy, 105 Ill. 138, 44 Am. Rep. 785; Foland v. Town of Frankton, 142 Ind. 546, 41 N. E. 1031; Smith v. Dedham, 144 Mass. 177, 10 N. E. 782; Wade v. Borough of Oakmont (Pa.) 30 Atl. 959; Keihl v. City of South Bend, 76 Fed. 921, 22 C. C. A. 618, 36 L. R. A. 228.

In the case of Loan Association v. Topeka, 20 Wall. 660, 22 L. Ed. 455, the Supreme Court says:

"It follows that in this class of cases the right to contract must be limited by the right to tax, and if, in the given case, no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it."

See, also, Sutherland-Innes Co. v. Village of Evart, 86 Fed. 597, 30 C. C. A. 305.

We now have to consider the contention of counsel for the complainant and the water company as to whether or not the city is proceeding according to law in its attempt to construct, maintain, and operate a system of waterworks of its own. Its power, if it has any, comes from the Constitution and laws of the state of South Dakota. Section 4, art. 13, of the Constitution of the state of South Dakota, adopted on the admission of the state into the Union, reads as follows:

"Sec. 4. The debt of any county, city, town, school district or other subdivision, shall never exceed five per centum upon the assessed value of the taxable property therein. In estimating the amount of indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of this Constitution shall be included."

In the year 1896 said section 4 of article 13 was amended to read as follows:

"Sec. 4. The debt of any county, city, town, school district, civil township, or other subdivision, shall never exceed five (5) per centum upon the assessed value of the taxable property therein. In estimating the amount of indebted

ness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of this constitution shall be included: provided, that any county, municipal corporation, civil township, district or other subdivision may incur an additional indebtedness not exceeding ten per centum upon the assessed value of the taxable property therein for the purpose of providing water for irrigation and domestic uses: provided further, that no county, municipal corporation or civil township shall be included within any such district or subdivision without a majority vote in favor thereof of the electors of the county, municipal corporation, or civil township as the case may be, which is proposed to be included therein, and no such debt shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote in favor thereof of a majority of the electors of such county, municipal corporation, civil township, district or subdivision incurring the same."

In the year 1902 the same section was again amended to read as follows:

"Sec. 4. The debt of any county, city, town, school district, civil township or other subdivision, shall never exceed five (5) per centum upon the assessed valuation of the taxable property therein for the year preceding that in which said indebtedness is incurred. In estimating the amount of the indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of the Constitution shall be included. Provided, that any county, municipal corporation, civil township, district or other subdivision may incur an additional indebtedness not exceeding ten per centum upon the assessed valuation of the taxable property therein for the year preceding that in which said indebtedness is incurred, for the purpose of providing water and sewerage for irrigation, domestic uses, sewerage and other purposes; and provided further, that no county, municipal corporation, civil township, district or subdivision, shall be included within such district or subdivision without a majority vote in favor thereof of the electors of the county, municipal corporation, civil township, district or other subdivision, as the case may be, which is proposed to be included therein, and no such debt shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote in favor thereof by a majority of the electors of such county, municipal corporation, civil township, district or subdivision incurring the same."

* * *

The indebtedness for the construction of the system of waterworks by the city was incurred in 1903; that being the year when the bonds were issued. In that year, and when the bonds were issued, the city was indebted, in round numbers, in the sum of $391,000. Its assessed valuation for the year 1902 was the sum of $2,739,598. The assessment of 1902 must be taken in considering the debt limit of the city, for the reason that section 4 of the Constitution, herein referred to, as amended in 1902, limits the indebtedness for water purposes to 10 per centum upon the assessed value of the taxable property therein for the year preceding that in which said indebtedness is incurred. This indebtedness would be nearly 15 per cent. of the assessed value for the year 1902 and over 9 per cent. above the limit for general purposes mentioned in section 4. Adding to this indebtedness the $210,000 of waterworks bonds, and it makes an indebtedness of over 21 per cent.; and if the city had a right, as is claimed by counsel for the city, to impose a tax of 10 per cent. upon the assessed valuation, regardless of existing indebtedness, and the whole amount of 10 per cent. was voted, there would be an indebtedness of nearly 25 per cent. on the assessed valuation, which is enough to make one pause. If this power exists to impose taxes in the city

of Sioux Falls, one may well consider whether or not one is fortunate to own property therein. If the existing indebtedness of the city is to be considered, then the issuance of the waterworks bonds was clearly in excess of any authority possessed by the city, and it was wholly without power to incur the indebtedness; and, if wholly without power to incur the indebtedness, it had no power at all; and, unless we stray from the plain language of the Constitution and wander into the realms of speculation, we are of the opinion that the power did not exist on the part of the city to incur an indebtedness of 10 per cent. on the assessed valuation of the city for 1902 for water purposes, regardless of its then existing indebtedness. The language of the Constitution is a plain, prohibitive limitation upon the power of municipalities to incur an indebtedness for the purpose mentioned. It should receive a strict construction, or else it will serve no purpose. As the language of section 4 of the Constitution is plain and unambiguous, where else shall we go to find its meaning? Section 4 as it originally stood in the Constitution, provided that the debt of any county, city, town, school district, or other subdivision should never exceed 5 per centum upon the assessed valuation of the taxable property therein. It also provided that in estimating the amount. of indebtedness which a municipality or subdivision may incur the amount of indebtedness contracted prior to the adoption of this Constitution should be included. Here we have a positive limitation of 5 per centum on the assessed valuation of the taxable property in such municipal corporations, including existing indebtedness. In 1896 an amendment of said section was adopted by the people, providing that any county, municipal corporation, civil township, district, or other subdivision may incur an additional indebtedness, not exceeding 10 per centum upon the assessed valuation of the taxable property therein, for the purpose of providing water for irrigation and domestic uses, and in estimating the amount of indebtedness the indebtedness already existing is included. The question now arises as to what meaning should be given to the word "additional" in the amendment. Additional to what? There was already a 5 per cent. limitation for general purposes in the section, and the natural, logical, and ordinary meaning that would be given to the word "additional" would be additional to the 5 per cent. already limited; in other words, that the indebtedness of this municipal corporation might ascend to the limit of 5 per cent. for general purposes, and might continue to ascend to 15 per cent. for the purpose of supplying water. If the members of the Legislature who proposed, and the people who adopted, this amendment, intended that the 10 per cent. should be additional to the already existing indebtedness of said corporations, why did they not say so? It would have been a simple thing to do, and the fact that it was not done is strong argument that they did not have any such intention. If the people, in their Constitution, have plainly and without ambiguity declared the law, this court has no authority to guess and surmise what the people intended. Their intention must be gathered from what they said. There are several reasons which occur to us that are convincing that section 4, as amended, means just what it says.

First. The members of the Legislature who proposed, and the