APPEAL from the Circuit Court of the
United States for the District of Wash-
ington to review a decree in a suit in equity
brought by the Walla Walla Water Com-
pany against the city of Walla Walla et al.,
perpetually enjoining said city and its of
ficers from erecting waterworks in pur-
suance of an ordinance of the city, and from
expending moneys of the city or selling its
bonds to erect such waterworks. Affirmed.
See same case below, 60 Fed. Rep. 957.

Statement by Mr. Justice Brown:
[2] *This was a bill in equity filed by the water
company to enjoin the city of Walla Walla
and its officers from erecting waterworks in
pursuance of an ordinance of the city to that
effect, or from acquiring any property for
the purpose of carrying out such enterprise,
[3] or from expending the moneys *of the city
or selling its bonds or other securities for
the purpose of enabling the city to erect such

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The facts are substantially as follows:
By an act of the territory of Washington
(November 28, 1883), incorporating the city
of Walla Walla, it was enacted (section 11)
that the city should have "power
to provide
a sufficient supply of
water;" and by section 10 "to grant the right
to use the streets of said city for the pur-
pose of laying gas and other pipes intended
to furnish the inhabitants of said city with
light or water, to any persons or associa-
tion of persons, for a term not exceeding
twenty-five years,
provided always,
that none of the rights or privileges herein
granted shall be exclusive, nor prevent the
council from granting the same rights to
others." Other sections are as follows:

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"Sec. 23. The city of Walla Walla shall [4] have power to establish and regulate the fees and compensation of all its officers, except when otherwise provided, and have such other power and privileges not here specifically enumerated as are incident to municipal corporations."

"Sec. 24. The power and authority hereby given to the city of Walla Walla by this act shall be vested in a mayor and council, together with such other officers as are in this act mentioned, or may be created under its authority."

"Sec. 43. The city council shall possess all the legislative power granted by this act."

"Sec. 103. The rights, powers, and duties and liabilities of the city of Walla Walla and of its several officers shall be those prescribed in this act, and none others, and this is hereby declared a public act.”

"Sec. 105. The limit of indebtedness of the city of Walla Walla is hereby fixed at fifty thousand dollars."

Pursuant to these sections of the charter, the city council, on March 15, 1887, passed "An Ordinance to Secure a Supply of Water for the City of Walla Walla," by which it granted under certain restrictions to the water company, for the period of twenty-five years from the date of the ordinance," "the right to lay, place, and maintain all neces sary water mains, pipes, connections, and fittings in all the highways, streets, and alleys of said city, for the purpose of furnishing the inhabitants thereof with water."

The ordinance also contained the following further provisions:

By section 4 the city reserved the right "Sec. 11. The city of Walla Walla shall to erect and maintain as many fire hydrants have power to erect and maintain water- as it should see fit, and, in case of fire. that works within or without the city limits, or the city should have all reasonable and nee to authorize the erection of the same, for the essary control of the water for the extinpurpose of furnishing the city or the inhab-guishment thereof. itants thereof with a sufficient supply of water, and to enact all ordinances and regulations necessary to carry the power herein conferred into effect; but no waterworks shall be erected by the city until a majority of the voters, who shall be those only who are freeholders in the city, or pay a property tax therein on not less than five hundred dollars' worth of property, shall at a general or special election vote for the

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"Sec. 5. The city of Walla Walla shall pay to said Walla Walla Water Company 3] for the matters and things above enumerat ed, quarter-yearly, on the first days of July, October, January, and April of each year, at the rate of fifteen hundred dollars ($1,500) per annum, for the period of twen ty-five (25) years from and after the date of the passage of this ordinance, the first quarterly payment to be made on the first day of October next (October 1, 1887).

"Sec. 6. The city of Walla Walla shall during said period, without expense for water, be allowed to flush any sewer or sewers it may hereafter construct, at such tim during the day or night as the water company may determine, and under the direction and supervision of such officers as the city may from time to time designate, not oftener than once each week.

"Sec. 7. For all the purposes above enumerated said Walla Walla Water Company shall furnish an ample supply of water, and for domestic purposes, including sprinkling lawns, shall furnish an ample supply of good wholesome water, at reasonable rates, to con


sumers, at all times during the said period of twenty-five (25) years; and this contract shall be voidable by the city of Walla Walla so far as it requires the payment of money, upon the judgment of a court of competent jurisdiction, whenever there shall be a substantial failure of such supply, or a substantial failure on the part of said company to keep or perform any agreement or contract on its part, herein specified or in said contract contained. But accident or reasonable delay shall not be deemed such failure. And until such contract shall have been so avoid-| ed the city of Walla Walla shall not erect, maintain, or become interested in any waterworks except the ones herein referred to, save as hereinafter specified.

"Sec. 8. Neither the existence of said contract nor the passage of this ordinance shall be construed to be or be a waiver of or relinquishment of any right of the city to take, condemn, and pay for the water rights and works of said or any company at any time; and in case of such condemnation the existence of this contract shall not be taken into consideration in estimating or determining the value of the said waterworks of the said Walla Walla Water Company." [6] *The water company accepted this ordinance, entered into a formal contract with the city, and substantially complied with the terms and conditions of such contract,which has never been avoided by the city or by the courts, and was still in force at the time the bill was filed.

After this contract had been in force and the stipulated rentals paid for about six years, on June 20, 1893, an ordinance was passed "to provide for the construction of a system of waterworks" for the purpose of supplying the city and its inhabitants with water; to authorize the purchase and condemnation of land for that purpose, and the issue of bonds to the amount of $160,000 to provide the necessary funds. Pursuant to the provisions of such ordinance an election was held whereby the proposition submitted by the ordinance was carried by a sufficient majority of the legal voters.

The answer of the defendants insisted that the contract of the city with the plaintiff was not a valid and binding contract, so far as concerned the stipulation binding the city not to erect or maintain or become interested in any system of waterworks other than that of the plaintiff.

A demurrer to the bill having been overruled, and a preliminary injunction having been granted pursuant to the prayer of the bill, the case subsequently went to a hearing upon the pleadings and proofs, and resulted in a decree perpetuating the injunction. From this decree defendants appealed directly to this court, pursuant to § 5 of the circuit court of appeals act allowing such appeal in any case that involves the construction or application of the Constitution of the United States.

Messrs. A. H. Garland, J. Hamilton Lewis, and R. Garland, for appellants: The city of Walla Walla cannot be regarded as an agent of the state; the state cannot

be regarded as its principal; therefore the state cannot be charged as being the actor in the proceeding, whether it be the making of the contract or the impairing of the obligation of one.

Western College of Homeopathic Medicine v. Cleveland, 12 Ohio St. 377; New Orleans v. Abbagnato, 23 U. S. App. 533, 62 Fed. Rep. 240, 10 C. C. A. 361, 26 L. R. A. 329; Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Safety Insulated Wire & Cable Co. v. Baltimore, 25 U. S. App. 166, 66 Fed. Rep. 140, 13 C. C. A. 377; Illinois Trust & Sav. Bank v. Arkansas City, 40 U. S. App. 257, 76 Fed. Rep. 271, 22 Č. C. A. 181, 34 L. R. A. 518.

A municipal ordinance not passed under supposed legislative authority cannot be regarded as a law of the state within the meaning of the constitutional prohibition against state laws impairing the obligation of contracts.

Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760; Lehigh Water Co. v. Easton, 121 U. S. 388, 30 L. ed. 1059; New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 31 L. ed. 607.

The general reservation of the power to alter, revoke, or repeal a grant of special privileges necessarily implies that the power may be exercised at the pleasure of the legislature.

Close v. Glenwood Cemetery, 107 U. S. 466, 27 L. ed. 408; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 173; Pennsylvania College Cases, 13 Wall. 190, 20 L. ed. 550; Tomlinson v. Jessup, 15 Wall. 454, 21 L. ed. 204.

The plaintiff had an apparent, full, and adequate remedy at law.

Smyth v. New Orleans Canal & Bkg. Co. 141 U. S. 656, 35 L. ed. 891.

The governmental power of self-protection cannot be contracted away.

New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45.

A municipal corporation may make or authorize contracts, but it has no power to make contracts or pass by-laws which shall cede away, control, or embarrass its legislative or governmental powers, or which shall disable it from performing its public duties.

Garrison v. Chicago, 7 Biss. 480; Logan v. Fyne, 43 Iowa, 524, 22 Am. Rep. 261; State, Atty. Gen., v. Cincinnati Gaslight & Coke Co. 18 Ohio St. 262; Minturn v. Larue, 23 How. 435, 16 L. ed. 574; Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 19; Richmond County Gaslight Co. v. Middletown, 59 N. Y. 231; New Orleans City R. Co. v. Crescent City R. Co. 12 Fed. Rep. 308.

The contract is void as an attempt to barter away a part of the governmental power of the city council.

Grant v. Davenport, 36 Iowa, 402; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Law


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