Davenport v. Kleinschmidt

6 Mont. 502

• Court: Montana Supreme Court
• Decided: January 15, 1887
• Status: Published

Opinions

MoLeart, J.

This was a suit in the district court of Lewis and Clarke county, brought by “William Davenport, "William C. Child, Thomas C. Power and Kobert S. Hale, against Theodore H. Kleinschmidt, as mayor, and John Watson and others, as aldermen of the city of Helena, and George-F. "Woolston, for a perpetual injunction against the defendants, restraining them from in any manner carrying out a certain contract, alleged to be illegal, by laying any mains or water-pipes, or erecting any hydrants in the city of Helena, or by issuing any warrants for any water supplied to said city under the said contract. On the 4th day of December, 1886, the judge of the district court entered . an order enjoining the defendants from carrying out the contract and from doing any act thereunder. Afterwards a motion was made to dissolve the injunction, for various reasons, and the same ivas, on the 13th day of December, 1886, overruled; and from this order overruling the motion to dissolve the injunction therein the defendants appeal to this court.

George F. Woolston was not served with the summons in this suit, nor with the writ of injunction; neither did he appear in the district court nor take part in the motion for dissolution; nor did he appeal to this court. Hence he is not before this court; and this cause must be considered as if he were not a party thereto; and he is not directly affected by the result of this proceeding. The only parties hereto properly before this court are the mayor and aider-men composing the city council of the city of Helena, who are the appellants heretofore named. The contract alleged to be illegal, on which this suit is based, is in the form of an ordinance, passed by the city council, the terms whereof ■were to be accepted by Woolston by filing a writing with the city clerk of Helena.

A preliminary question, which meets us at the outset, is whether or not the plaintiffs herein have the right to institute and maintain this suit. The complaint alleges that they are residents and tax payers of the city of Helena, owning, in the aggregate, taxable property within the corporate limits of said, city amounting in value to $250,000. This right of the plaintiffs, as tax payers, to maintain this suit, is certainly set at rest by the decision of the supreme court of the United States in the case of Crampton v. Zabriskie, 101 U. S. 609. Mr. Justice Field, in delivering the opinion of the court, says: “ Of the right of resident tax payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt, which they, in common with other property holders of the county, may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and, from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the tax payers of a county, to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property holder’s. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill, by or on behalf of individual tax payers, should ixot be entertained to prevent the misuse of corporate powers.” Crampton v. Zabriskie, 101 U. S. 609. Although this authoi’ity is entirely satisfactory, we may also refer to the following cases from the state courts, substantially to the same effect: Williams v. Peinny, 25 Iowa, 437, 438; City of Springfield v. Edwards, 84 Ill. 626; Harney v. Indianapolis, etc. 32 Ind. 244; Terrett v. Town of Sharon, 24 Conn. 108; Newmeyer v. Missouri & M. R. R. Co. 52 Mo. 84-89; Mayor of Baltimore v. Gill, 31 Md. 394; Page v. Allen, 58 Pa. St. 345; Valparaiso v. Gardner, 49 Amer. Rep. 417; 97 Ind. 1; and many other cases cited in these opinions.

The current of authority is to the contrary in New York, at least in the' later cases, which have been followed in Kansas, Minnesota and Massachusetts. In some of the states the matter is regulated by statute, imposing the duty of bringing such suits upon some public officer; but where there is no statutory provision, it is almost the uniform practice, sanctioned by reason and authority, for any tax payer, or generally several, on behalf of themselves and others, to institute proceedings in a court of equity to prevent the misapplication of public funds by municipal officers. And this right is based on the ground that the threatened illegal corporate act will increase the burden of taxation, and thus injure the plaintiffs.

In the Missouri case above referred to, decided in 1873, Judge Ewing, in an exhaustive opinion, discusses the question and the authorities on both sides, and arrives at the conclusion “ that the decisions which affirm the right of the plaintiffs, or those standing in the same relation to such controversies, to maintain the action, rest upon a more solid foundation of principle and reason than those holding the contrary doctrine.” 52 Mo. 89.

Mr. Dillon, in his excellent work on Corporations, collates the authorities, and discusses the subject at some length. He says: “ In this country, the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations, and their officers, from transcending their lawful powers, or violating their legal duties, in any mode which will injuriously affect the tax payers, such as making an unauthorized appropriation of the corporate funds, or an illegal disposition of corporate property, or levying and collecting void and illegal taxes and assessments upon real property, under circumstances presently to be explained, has been affirmed or recognized in numerous cases in many of the states. It is the prevailing doctrine on this subject.” 2 Dill. Mun. Oorp. § 73Í, p. 829. And the same doctrine is laid down explicitly by Mr. High, in his standard work on Injunctions, § 1298.

The right of these plaintiffs, being tax payers, to bring this suit, and, in a proper case, to procure all injunction to restrain the illegal disposition of the city’s money, cannot be doubted. But it is claimed by the appellants that George F. Woolston is a necessary party to this litigation; that he has been made a party defendant to this suit; that his rights are affected by this injunction; and that he has not been served with process, or had an opportunity to be heard in the premises. It does not seem to us that Woolston is a necessary party to this suit. The question is one primarily between the tax payers of the city of Helena and the city council, to determine whether or not there is about to be committed the misappropriation of funds in the city treasury. Woolston is not a tax payer, nor even a citizen of the city of Helena, nor of the territory of Montana, so far as appears from the record of this case. He has shown no interest in the public funds of the city of Helena. No such, connection appears between him and the other defendants as would require him to be summoned and enjoined before this case could proceed between the parties before this court. Certainly the defendants, the mayor and aldermen of Helena, cannot complain that he is not brought in. He files a written argument in the form of an opinion by eminent counsel residing in New York; but otherwise he is a silent spectator of the proceedings in the court below and in this court. This clearly appears to us as a case where a complete determination of the controversy can be had without the presence of Woolston; and the court below properly disregarded this objection. E. S. Mont. § 27, 1st div. p. 44. But it does not appear from the briefs that this point is insisted on by the counsel for appellants in this court, and for that reason, if for no other, it might be passed by without further consideration.

If, as is alleged by the appellants in their motion for dissolution, this injunction, being granted without the summons being served on other parties, would be nugatory and1 of no effect, then no one is injured by the order, and no one has the right to complain. But we do not think that such would be the result. Parties sufficient for the determination of this controversy, and making the injunction, unless dissolved, effectual, appear to us to be now before this court; and the case may properly proceed to a complete determination of the controversy and a settlement of the issues involved. But, before we proceed to a discussion of the main issues involved herein, we may as well dispose of some other, matters which may be regarded as preliminary in their nature, or at least incidental to the merits of the case.

It is suggested by counsel on behalf of George F. Woolston that, conceding, for the sake of argument, that the ordinance may be void in some particulars, as being ultra vires, and positively forbidden by the charter of the city or the act of congress, still there are certain sections of it, as those that grant the license or privilege of laying pipes or mains in the streets of the city, Avhich must be held valid, inasmuch as this privilege or license is not exclusive, and the city council has the undoubted right to grant such a license or privilege to any person. It is contended that the ordinance in its several parts is severable, and that such portions thereof as are void should be annulled, and such parts as are valid should be suffered to remain in force; or, as it may be stated in other words, that, although the ordinance may be void as a contract to pay money out of the city treasury, still, as a license to lay pipes and mains in the streets of the city, it is valid. However reasonable this vieAV of the matter may be, and hoAVever well supported by the authorities, Woolston is not in a position to urge this court to act thereon. He is not before the court. If he was dissatisfied with the terms of the order granting the injunction, he should have appeared in the court below, and made his motion to dissolve or modify the order or the writ, so as to exclude this prohibition therefrom, and leave the license granted to him to. lay pipes and mains in the streets in full force. Not having taken this course, not having appeared, not having made any motion in the court below, not having appealed to this court, the powers of this court are not invoked by “Woolston, and cannot be exerted in his behalf.

But the same suggestions are made on behalf of the members of the city council, who are property before this court as the appellants in this case. In so far as that clause of the injunction which forbids “laying any mains or water-pipes, or erecting any hydrants, in said city of Helena,” is concerned, it is very evident that this was not intended to apply to these appellants. No allegation in the complaint sets out that they are about to lay pipes and mains, or to erect hydrants in the city; and it was not intended by the order of injunction that they should be forbidden so to do. Indeed, it was argued and insisted upon by counsel for respondents that the city council should construct the water-works, for and on behalf of the city, and this would ¿require them to lay the pipes and mains in the -streets, and erect the necessary hydrants. But it is clear from the pleadings and orders herein made that this clause of the writ and the order could only apply to Woolston and his servants or agents; and, as we have already seen, he has not complained of it, or made any motion or appeal in regard thereto. And inasmuch as the appellants are not affected by this portion of the writ, it need not be determined by us at this time whether the different portions of the ordinance are severable or not.

So we pass from the preliminary matters to the main questions involved herein. There was no answer in this case below. The record consists of the complaint, with the ordinance attached as an exhibit, the summons, the order granting the injunction, the writ of injunction, the motion to dissolve, and the order made thereon. The question submitted is the correctness of the order made by the court below, overruling the motion for dissolution of the injunction. Yarious reasons are assigned why this injunction should have been dissolved, — that it was improvidentty issued; for want of equity in the complaint; for want of jurisdiction; and because the injunction does not followthe complaint. None of these objections were insisted on in the briefs or the arguments of counsel, except that there was no equity in the complaint, and that the injunction was improvidently or prematurely issued. The objections that the court had no jurisdiction, and that the order exceeds the complaint, may be considered as abandoned, if not untenable. We shall only consider the reasons presented, which are sufficiently broad to cover the whole question at issue in this case.

Then, let us first examine the equity in the bill, or the reasons for granting the injunction set forth in the complaint. They are briefly as follows: That the plaintiffs are tax payers of the city of Helena, and the defendants compose the mayor and city council thereof; that the defendants are about to enter into an illegal contract with Woolston for supplying the city with water, whereby there will be illegally expended out of the city treasury the sum o’f $15,000 per annum, or $1,250 per month, for the next twenty years. The contract intended to be made consists of an ordinance on the part of the city council, and a written acceptance thereof by Woolston. It is contended that the ordinance is void, for the reason that the city council has no power to make it, (1) because it is not authorized by the charter and is ultra vires; (2) because it is forbidden by the charter; (3) because it is forbidden by the act of congress of July 10, 1886.

The ordinary powers of municipal corporations are well defined and understood. It is well said by Mr. Dillon, in his work on Municipal Corporations, that “it is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,— not simply convenient, but indispensable. Any fair, reasonable doubt concerning tbe existence of power is resolved by tbe courts against the corporation, and the power is denied. Of every municipal corporation, the charter or statute by which it is created is its organic act.” 1 Dill. Mun. Corp. § 55, p. 173. These views are approved by the courts in the following cases: Spaulding v. Lowell, 23 Pick. 74, 75; Minturn v. Larue, 23 How. 436; Saginaw Gas-light Co. v. City of Saginaw, 34 Alb. Law J. 412.

The city charter of Helena contains the following provisions: “The city council shall have power to provide the city with water, erect hydrants and pumps, build cisterns, and dig wells in the streets, for the supply of engines and buckets (section 8, page 8), to provide for the prevention and extinguishment of fires.” Section 18, page 9. Under the powers to provide the city with water, and to erect hydrants, and to provide for the prevention and extinguishment of fires, are doubtless included, as necessarily incident, thereto, or implied therein and essential thereto, the power to do this by agents employed for that purpose, and to make contracts with individuals or other corporations to do the same. The city could scarcely accomplish such objects in any other way; and it is hardly probable that any other method was contemplated in the granting of the charter. Though, doubtless, the city council could cause wrater-works to be built, and own, operate and control them thereafter as the property of the city, the charter does not limit the city corporation to either one method or the other. Any appropriate means necessary to carry out the objects would be properly within the powers granted to the city council in the charter. East St. Louis v. East St. Louis G. L. & C. Co. 98 Ill. 424, 425.

Then, the power to provide the city with water, by making a proper contract with some person to erect waterworks, and sell water to the city, being conceded, the next question that presents itself is as to the power of the city to make this particular contract. Is the present such a contract as to be beyond the power of the city council to enter into so as to bind the municipal corporation? Does this contract create a monopoly ? For, if it does, it goes beyond the power of a city council. Monopolies maybe created; but they must be called into being by the sovereign power alone. A city council has no authority to grant to any person a monopoly, even where no express prohibition is found in the charter or other acts of the legislature. Monopolies are contrary to the genius of a free government, and ought not to be encouraged by the people, or countenanced by the courts, except when expressly authorized by positive law. In many of the state constitutions an announcement of this principle is clearly and explicitly declared. A monopoly is defined by the best and oldest law writers to be “ an institution or allowance by a grant from the sovereign power of a state, by commission, letters patent, or otherwise, to any person or corporation, by which the exclusive right of buying, selling, making, working or using anything is given.” 2 Bouv. Law Diet. p. 191; 5 Bac. Abr. S. Y.; 3 Coke, Inst. 181. It has also been well defined in a late work as follows: “ The popular meaning of ‘ monopoly ’ at the present day seems to be the sole power (or a power largely in excess of that possessed by others) of dealing in some particular commodity, or at some particular place or market, or of carrying on some particular business.” 2 Bap. & L. Law Diet. 831, 835.

As far as this case is concerned, either of the definitions is sufficiently clear, and both are applicable. It cannot be said that Woolston is to have, under the ordinance No. 93, any exclusive right to use the streets of the city for the laying of pipes or mains. It is believed this is provided against in sections 1 and 9 of the ordinance. But the twentieth section reads as follows:

“ Section 20. The said city of Helena expressly reserves. the right to license and grant charters to other persons and companies, to convey, distribute and sell water within said city to private consumers, not, however, in violation of this ordinance; but nothing in this section contained shall be construed as abridging the rights of said George F. ’Woolston and his successors and assigns to furnish said city with all the Avater for municipal and fire purposes required by said city, during the continuance of this ordinance.”

This gives Woolston the exclusive right and power of selling Avater to the city of Helena, for the period of tiventy years, at the minimum rate fixed in the contract; and his rights in the premises are not to be abridged by any misconstruction thereof. If this is not a monopoly, it is very . difficult to conceiA'e of one. It is true that there is no restriction on any other person or company furnishing or selling Avater to the people of Helena, if anjr one could undertake . to do so without the benefit of the city’s patronage; but it' is scarcely likely that any other company could or would undertake to supply the people in competition Avith Woolston, supported under this contract by the powerful adArantage of the exclusive custom of the city of Helena, at rates already fixed and unchangeable. Then, as to the citizens also, this contract secures a practical monopoly, although, speaking from a legal standpoint, the monopoly is confined to the Avater used by the -city for the extinguishment of fires, and the cleansing of sewers, and other municipal purposes.

But it is claimed by counsel, in a written argument filed herein, that there is no “ exclusive privilege ” or monopoly granted to Woolston or his associates, because the ordinance “ expressly provides that nothing therein contained shall give to him or them the exclusii'e right of occupying the streets, or conveying, distributing, or selling water throughout the city. . , . The reservation here is ample to allow the city, at any time, to grant the use of its streets to any other water company, and agree, so far as the needs of the city might require, to take water from it” So far as the use of the streets is concerned, and even in regard to conveying, distributing and selling water, the position is well taken. No exclusive privilege is granted as to these. But in regard to the city reserving the power at any time to agree, so far as the needs of the city might require, to take water from any other water company than that of Woolston, the provisions of the twentieth section, which certainly escaped the attention of the eminent counsel, have effectually forbidden that. The rights of Woolston to furnish all the water required for municipal purposes are not to be, and cannot be, abridged by any other person, no matter at what rate or on what terms, within the next twenty years, he may wish to supply the city with water. This is certainly an exclusive privilege; and it is as thoroughly well guarded as language can well make it.

The case of the Union Ferry Company, 98 N. Y. 150, cited by counsel, has no similarity to the case at bar. In that case the learned judge, Kappalo, discusses the meaning of the terms “ exclusive privilege, immunity, or franchise,” and gives several of the most familiar instances of cases which come within the constitutional inhibition of the state of New York in regard thereto. He says: “The word £ exclusive5 is derived from £«r,’ out, and £ daudere] to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoying a similar privilege or franchise.” 98 N. Y. 151. That is exactly what this ordinance does in regard to furnishing water.to the city of Helena. He then enumerates several well-known cases of monopoly or exclusive privileges or franchises, among others the following: “ The charter of the Mohawk Bridge Company, which prohibited ferries across the river one mile above and one mile below the bridge (Mohawk Bridge Co. v. Utica & S. R. Co. 6 Paige, 554); the lease by the corporation of the city of New York, in 1814, of the Pulton ferry, in which the corporation covenanted that it would not grant or permit any other ferry to the southward of the ferry at the Catherine slip (Costar v. Brush,, 25 Wend. 628); the charter of the Delaware Bridge Company, which prohibited the erection of any other bridge, or the establishment of any other ferry, within two miles above or below (Chenango Bridge Co. v. Binghampton Bridge Co. 27 N. Y. 87, and 3 Wall. 51); tbe charter of the West Diver Bridge Company, which granted the exclusive privilege of maintaining a bridge across West river (West River Bridge Co. v. Dix, 16 Vt. 466); the charter of the Boston & Lowell Dailroad Company, which provided that no other railroad should, within thirty years, be authorized between Boston and Lowell, and was held to be a-contract protected by the constitution, as in the Binghampton Bridge Case, 3 Wall. 51; the grant of an exclusive right to a line of telegraph between Sacramento and San Francisco, all other persons being prohibited from running a line within one-half a mile, or doing business between those cities (California State Tel. Co. v. Alta Tel. Co. 22 Cal. 398).” Case of Union Ferry Co. 98 N. Y. 151, 152. These examples illustrate the general principle within which the case at bar most unquestionably falls. This principle is also illustrated in the cases of New Orleans G. Co. v. Lousiana L. etc. Co. 115 U. S. 654; New Orleans W. W. Co. v. Rivers, 115 U. S. 674; and Louisville Gas Co. v. Citizens' Gas-light Co. 115 U. S. 691, all of which are confessedly monopolies, but having been granted by the state legislature, the sovereign power, were protected by the constitution of the United States, prohibiting the impairment of the obligation of contracts. The exclusive right, or the sole power, is the test in every instance, as is laid down in the definitions already quoted. Tried both by the square of principle and the plumb-line of authority, this contract proves itself, in all essential particulars, a monopoly; and for that reason the making of it is beyond the powers of the city council, unless it were expressly authorized by the legislature.

But it is insisted by the counsel for respondents that the making of this contract, or the passing of this ordinance, is ultra vires, “ because it ties up and embarrasses the functions of future councils.” Every ordinance in the nature of a contract would do this to some extent. And, unless the contract entered into by means of this ordinance should bind the city corporation for an unreasonable time, this objection would not be fatal. Is twenty years a reasonable time ? The city charter provides for the election of the mayor and half the aldermen in April of each year. Oity Charter, art. 4, §1. The complaint alleges the taxable property of the city of Helena to be not more than $5,000,000; that the bonded indebtedness of the city amounts to $19,500; that the floating debt, in outstanding warrants, amounts to $15,000. Four per cent, of the taxable property of the city would amount to $200,000. The charter permits the levy of taxes to the extent of three mills on the dollar, for general purposes, and the same for fire department purposes. City Charter, p. 25, amend. 1885. On the present valuation these levies might amount to $15,000 each, if the taxing power was exerted to the limit.

The city of Helena was chartered in 1881. Twenty years ago it was a small mining camp on the banks of Last Chance gulch, containing a few hundred people. The last official census of the city, taken in 1880, shows a population of not more than four thousand. Eeliable data place the present population at about ten thousand. The ordinance provides that Woolston shall receive for the water running through each of the first one hundred and fifty hydrants provided for, $20 per year out of the general fund, and $80 per year out of the fire department fund, being $100 for each hydrant altogether, and amounting in the aggregate, for the one hundred and fifty hydrants, to $15,000 per annum. Then, as the mains are extended, additional hydrants are required to be erected, and for these Woolston is to receive $13 per year out of the general fund, and $52 per year out of the fire department fund, making in the aggregate $65 per year for each additional hydrant. If ten miles more of pipe should be laid, at least one hundred additional hydrants must be paid for, at an annual cost of $6,500. If the whole cost of the first one hundred and fifty hydrants were to be paid out of the fire department fund, it would take every dollar which could be placed into that fund, at the present valuation. This ordinance is designed to be irrepealable and unchangeable for the period of twenty years. We have a right to consider all these things in determining whether or not twenty years is a reasonable time for such a contract to run. Under all the circumstances indicated, we cannot consider that the city council has the right to bind such a city as Helena by such a contract, for so long a period. We are not called upon to indicate what would be a reasonable time for which the city might make such a contract, if at all. It is sufficient for us to say in this case that twenty years is not a reasonable time. It is useless to argue that, if the council has power to bind the city for twenty years, it has the power to bind it for a hundred or a thousand years; or, on the other hand, to say that if the council cannot bind the city for twenty years, it cannot do so for one year, or one month. Such assertions of extreme cases may answer for illustration; but as arguments they are fallacies, which cannot bear the strong light of reason.

In considering the rights, powers and liabilities of a city council, a plain and obvious distinction is drawn between the character of a city as an individual or corporation and as a branch of the government, or, as it may be termed, between its corporate and its legislative powers. This distinction is well expressed by Chief Justice Savage in the case of Presbyterian Church v. City of New York, 5 Cow. 540. He, in speaking of the city, says: “ In ascertaining their rights and liabilities, as a corporation or as an individual, we must not consider their legislative character. They had no power, as a party, to make a contract which should control or embarrass their legislative powers and duties. Their enactments, in their legislative capacity, are to have the same effect upon their individual acts as upon those of any other persons, or the public at large, and no other effect.” 5 Cow. 540.

We have already considered the matter as far as the contract might restrain future councils in their corporate capacity. There is no inhibition on such a restraint, except the reasonableness of the time for which the restriction is to continue, which has been already discussed at length, and the conclusion reached that the limit of twenty years is too long to be regarded as reasonable. If such a contract should prove to be a restriction on the legislative powers of the city council, it would be void, in so far as a conflict might ensue. But it is not the province of a court to explore the future, in order to find out what legislative acts future city councils may, in their wisdom, see proper to ordain. "Whenever, acting within the- proper scope of their limited and delegated powers, they make a police regulation, which unavoidably curtails or restricts or prevents the exercise of any right theretofore existing, under a lawful contract, which they had previously made with any other corporation or individual, then the contract, to that extent, must give way. But we cannot- now hold this contract void, because it may, at some future time, conflict Avith municipal legislation. Presbyterian Church v. City of New York, 5 Cow. 539.

But is such a contract as that proposed by the ordinance in controversy actually forbidden by the charter of the city, as is contended by the respondents ? Let us examine the charter, for the purpose of pointing out the precise section imposing the restriction. It is therein prescribed “that said city shall not be authorized to incur any indebtedness on behalf of said city, for any purpose whatever, to exceed the sum of $20,000.” Section 17, as amended by the act of 1883, p. 19 of Charter. The allegations, of the complaint, Avhich, for the purpose of this case, are for the present taken as true, show the present bonded indebtedness of the city to be $19,500, and the floating debt, consisting of outstanding warrants, to be $15,000. No distinction is draAvn in the charter betAveen bonded debt and floating-debt, and, from the figures presented, it clearly appears that the limit has been already reached, and that the city cannot incur any further indebtedness, until some of that outstanding has been discharged, or the limit enlarged by the legislature. Then if, by entering into the proposed contract, the city council would “incur an indebtedness,” the same is plainly prohibited by the express terms of the charter.

A distinction is drawn by counsel for the appellants between the terms “debt” or “indebtedness,” and “liability,” and it is asserted as too plain for discussion that this contract creates no debt or obligation in the nature of a debt “ in frmenbi” and that “ no indebtedness or even liability on the part of the city to pay for this water arises until the hydrants have- been supplied, and the water furnished to them for a given month.” Let us inquire what is the proper signification of the term “indebtedness,” as used in the restrictive section of the charter. Webster defines “ indebtedness ” as “ the state of being indebted or placed in debt, or under an obligation, or held for payment or requital.” This remits us to the proper meaning of the term “ debt.” Bouvier defines a debt to be a sum of money due by a certain and express agreement. 1 Bouv. Law Diet. 436. One of the latest law lexicographers defines debt as follows: “ In the strict sense of the word, a debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor). Hence, debt is properly opposed (1) to unliquidated damages; (2) to liability, when used in the sense of an inchoate or contingent debt; and (3) to certain obligations not enforceable by ordinary process. Debt denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.” 1 Rap. & L. Law Diet. 351. Blacltstone, in his Commentaries, defines the word as follows: “ The legal acceptation of ‘ debt5 is a sum of money due by certain and express agreement; as by a bond for a determinate sum; a bill, or note; a special bargain; or a rent reserved on a lease, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it.” 3 BL Comm. 154; 2 Cooley’s Bl. 101.

So much for the lexicographers and text writers; but what say the courts? In the case of Gray v. Bennett, in 1842, the supreme court of Massachusetts say: “The word ‘ debt5 is of large import, including not only debts of record or judgments, and debts by specialty, but also obligations arising under simple contract, to a very wide extent; and, in its popular sense, includes all that is due to a man under any form of obligation or promise.” Gray v. Bennett., 3 Metc. 526.

But the precise term “ indebtedness,” as used in this charter, has been heretofore many times interpreted by the courts. The constitution of Iowa has a provision as follows : “No county, or other political or municipal corporation, shall be allowed to become indebted, or in any manner, or for any purpose, to an amount in the aggregate exceeding ñve per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax list previous to incurring such indebtedness. Article 11, § 3, Code, 787.” Burlington Water Co. v. Woodward, 49 Iowa, 61. In construing this very provision of the constitution, the supreme court of Iowa, in a well considered case, uses the following language: “ It is believed the constitution applies not only to a present indebtedness, but also to such as is payable on a contingency at some future day, or which depends on some contingency before a liability is created. But it must appear that such contingency is sure to take place, irrespective of any action taken or option exercised by the city in future. That is, if a present indebtedness is iucurred or obligations assumed, wrhich, without further action on the part of the city, have the effect to create an indebtedness at some future day, such are within the inhibition of the constitution. But if the fact of the indebtedness depends upon some act of the city, or upon its volition, to be exercised or determined at some future date, then no present indebtedness is incurred, and none will be until the period arrives, and the required act or option is exercised, and from that time only can it be said there exists an indebtedness.” Burlington Water Co. v. Woodward, 49 Iowa. 62. This case is analogous to the case at bar. Here we have a contract which involves a liability to pay money on a contingency which is morally sure to take place, irrespective of any action taken or option exercised by the city in future. All right to control the matter passes from the city with this ordinance ; and the liability becomes fixed on the performance of the work by 'Woolston, which the city is powerless to prevent. This case above quoted from is the latest Iowa case to which we have been referred; and, as the similar provisions in the constitutions of Illinois and Indiana seem to have been copied from that of Iowa, we think, if there should be a conflict, the decisions of the supreme court of Iowa should be preferred. It is a familiar rule that, when a clause is taken from the constitution or statute of another state, it will be deemed to have the meaning given to it by the courts of that state. City of Valparaiso v. Gardner, 49 Amer. Rep. 423. In all of the water cases arising in the state of Iowa, we are met with a general statute, which authorized all cities to contract for the erection of waterworks, and to pay for the water used by a special fund, raised by a special annual tax, not .to exceed five mills on the dollar; and such contracts with water companies were held not to create a debt against the cities, because the ‘water companies could never have any general claim against the cities, but were held to look to the special fund alone for the satisfaction of their demands. Burlington Water Co. v. Woodward, 49 Iowa, 59; Grant v. City of Davenport, 36 Iowa, 401.

Indiana has a constitutional provision similar to that of Iowa; and the latest case decided in construction of it is the case of City of Valparaiso v. Gardner, 91 Ind. 1. The contract entered into between the city and Gardner ivas held by the court not to be an indebtedness, mainly on the ground, it seems, that the supplying of water was one of the legitimate current expenses of the city government; and ifc was shown in the answer “ that the annual revenues of the city are sufficient to pay all the ordinary expenditures of the city, and the water rent of $6,000 per annum, besides providing for the accumulation of a sinking fund, as the law requires.” The court, after discussing several cases, says: “When the current revenues are sufficient to fully pay the current expenses necessarily incurred to maintain corporate life, there cannot be said to be any debt.” 49 Amer. Rep. 425. In a well-considered case, the supreme court of Indiana reviews all the Iowa and Illinois cases and many others, and, under the constitutional provision above referred to, says: “By ‘indebtedness,’ in this connection, we mean an agreement of some kind by the city to pay money, where no suitable provision has been made for the prompt discharge of the obligation imposed by the agreement. It was obviously the intention of the legislature in submitting, and of the people in adopting, the thirteenth article of the constitution, to arbitrarily restrict the power of municipal corporations to contract debts to a limited per centum of their taxable property, and to require, when that limit of indebtedness has been reached, that such corporations shall be prepared to pay for whatever of value they may obtain, without the inconvenience of any further indebtedness for any purpose whatever.” Sackett v. City of New Albany, 45 Amer. Rep. 472, 473.

For a construction of a similar constitutional provision, we may examine the case of Prince v. The City of Quincy, 105 Ill. 142, 143, in which the supreme court of Illinois reviews several Illinois cases, and, through Mr. Justice Mulkey, who delivered the opinion of the court, say:

“While the provision of the constitution just cited declares, in emphatic terms, that a city or other municipality, whose existing indebtedness already exceeds the constitutional limit, as was the case here, shall not become further indebted ‘in any manner or for any purpose,’ it is seriously contended by counsel for appellant that a municipality thus circumstanced may become indebted for supplies to meet its ordinary wants and necessities. To so construe the constitution would be to add a provision, in the nature of an exception, to the constitution, which the framers of that instrument did not see proper to insert. This, as is well settled by an unbroken current of authority, is not permissible, where the language of the law is clear and unambiguous, as is the case here, except where to give effect to the language used, according to its literal terms, would lead to a gross absurdity or' manifest wrong or inconsistency, which courts will not impute to a legislative body. That no such consequences will flow from giving effect to this provision of the constitution, according to the obvio.us meaning of the language in which it is conceived, will hardly be claimed b}T any one. The object and purpose of the framers of the constitution, in adopting this provision, have, on more than one occasion, received the deliberate and mature consideration of .this court, and we do not feel called upon to repeat what we have already said on the subject, but will content ourselves with a reference to the cases containing the previously expressed views of this court in relation to it.” City of Springfield v. Edwards, 84 Ill. 626; Law v. People, 87 Ill. 385; Prince v. City of Quincy, 105 Ill. 142, 143. The supreme court of Illinois, in the case of City of Springfield v. Edwards, 84 Ill. 631 et seq., refers to the cases of Grant v. City of Davenport, 36 Iowa, 396; People v. Pacheco, 27 Cal. 176; Koppikus v. Capitol Com'rs, 16 Cal. 253; State v. McCauley, 15 Cal. 455; State v. Medbery, 7 Ohio St. 522; and State v. Mayor, 23 La. Ann. 358,— which are said to support the proposition “ that, when liabilities are created, and appropriations are made, which are within the limits of the revenue accruing to meet them, they are not debts within the meaning of the prohibition of the constitution ; and that temporary loans are not, when Avithin the limits of the revenue expected to be realized.” Commenting thereon the court say: “We are only prepared to yield our assent to the rule recognized by the authorities referred to, Avith these qualifications: First. The tax appreprinted must at the time be actually levied. Second. By the legal effect of the contract between the corporation and the individual, made at the time of the appropriation, the appropriation and issuing and acceptance of a warrant or order on the treasury for its payment must operate to prevent any liability to accrue in the contract against the corporation.” “But, until a tax is levied, there is nothing in existence which can be exchanged [for the warrant]; and an obligation to levy a tax in the future, for the benefit of a particular individual, necessarily implies the existence of a present debt in favor of the individual against the corporation, which he is lawfully entitled to have paid by the levy.”

These views appear to us sound and correct; and they apply with peculiar force'to the case at bar. In this case the tax to meet these expenses is not actually levied, and the issuance of the warrant does not operate to prevent any liability, but is the very best evidence of the liability of the city to the contractor. No warrant could issue in his favor unless a debt existed to liquidate, for which the warrant was given. And should it not be paid when presented, and no fund is provided by this ordinance therefor, a suit against the city could at once be begun to enforce payment. Under the authorities above cited, reviewed and quoted, we are constrained to hold that the contract with Woolston creates an indebtedness, within the true intent and meaning of the act of the territorial legislature, amending the city charter and limiting the power of the city council to “incur any indebtedness on behalf of said city for any purpose whatever to exceed the sum of $20,000.” There is no special fund provided, as in Iowa, out of which these water-rents can be paid when they become due. There are no funds on hand, as in Indiana, to meet the demands with the cash when presented. But, as in Quincy, Illinois, the warrants, when issued, are more than likely to become a part of the floating debt which now, in warrants, amounts, according to the record in this case, to more than $15,000. It is true that the ordinance says it shall be “ the duty of the city council, during the continuance of this ordinance [that is for the next twenty years], to levy annual taxes, under the provisions of the charter of said city authorizing the levy of taxes for general purposes and for fire department purposes, sufficient in- amount to provide funds to meet the 'appropriation hereby made; ” but such an enactment cannot be said to make provision for the payment of the water-rents as they fall due.

As the tax-rolls now stand, a levy of three mills would leave only $3,000 in the fire department fund, and $12,000 in the general fund, after satisfying the monthly demands of Woolston and his associates for one year. It nowhere appears that this sum would be sufficient for the other necessary current expenses of the city, or, as it is elsewhere expressed, “sufficient to sustain corporate life in the city.” The establishment of thirty-eight more hydrants, in addition to the one hundred and fifty provided for, would more than exhaust the whole ■ fire department fund, and leave only $10,021 in the general fund. And the laying of four miles additional water-mains would make it incumbent on the city to pay the rent for forty additional hydrants, which might be done at any time under this contract. But for the one hundred and fifty hydrants which are to be erected at once, the city, under this contract, would have to pay a monthly rental of $1,250; and whatever may be said of the payment of $15,000 in the course of a year, or of $300,000 in the course of twenty years, no one can reasonably deny that an indebtedness' is created, within the true intent and meaning of the charter, to, the amount of $1,250, which will have to be paid as soon as the water has'been standing in Woolston’s hydrants, in the city of Helena, for the period of one calendar month. But it is contended that this is a cash transac- - tion, and that, as soon as the month expires, the money will be waiting for Woolston at the city treasury. If so, according to the record herein, he will be more fortunate than some other creditors of the city, who hold the $15,000 of unpaid warrants now outstanding. But the city of Helena has already exceeded the limit of indebtedness fixed by the charter, and no further debts can be incurred, without further authority from the law-making power of this territory.

But we must come directly and squarely to the proposition insisted on by the respondents, that the contract proposed to be made transcends the thirty-seventh section, as amended, of the city charter. That section, in full, reads as follows:

“ Section 37. Thatthe city council shall at any time, when they shall deem it expedient for the interests of the city, for the purpose of paying the debts of the fire department, or for the erection of permanent improvements, or for taking up outstanding warrants against the city treasury, have authority and may issue, on the credit of the city, bonds, with interest-bearing coupons, payable semi-annually, and in such amount as may be necessary for the purpose herein specified; provided, that the aggregate amount of said bonds, and all indebtedness and liability of the city for any and all purposes, shall not at any time exceed the sum of $20,000.” Charter of Helena, p. 20.

Let us consider the section without regard to section 17, preceding. It is insisted by counsel for appellants that this section of the charter alludes only to funding the indebtedness and the issuance of bonds. The restriction therein contained, though in the form of a proviso, is none the less effective in its operation, and forbids not only the creation of any indebtedness, but even of incurring a liability, to exceed $20,000. But it is conceded the contract with Woolston, though it does not create a debt, does create a liability, but it is contended that there is a broad distinction between these terms. Whatever may be the general rule in regard to the signification of these terms, it clearly appears that the proviso to section 37 (Charter, p. 20) is a legislative construction of the term “ indebtedness ” used in section 17 (Charter, p. 19) of the same act. The first section (17) limits tbe indebtedness for any purpose whatever, and the second section (37) provides for the funding of the city debt, but adds this proviso: “provided, that the aggregate amount of said bonds, and all indebtedness and liability of the city, for any and all purposes, shall not at any time exceed the sum of $20,000.” This proviso is a mere repetition of the preceding section, in substance, with the addition of the word “liability;” and, in effect, declares that the authority to fund shall not be construed to override the restriction of the indebtedness to the amount of $20,000. Hence, we may regard the latter section as a legislative construction of the former in this respect. If there was no other clause or section in the charter, restraining the powers of the council in matters like this, section 37 would be sufficient. It certainly was not put there to be meaningless.

In construing the section previously referred to in the constitution of that state, the supreme court of Illinois say: “In considering what construction shall be given to a constitution or a statute, we are to resort to the natural signification of the words employed, in the order and grammatical arrangement in ivhich they are placed; and if, when thus regarded, the words embody a definite meaning, Avhich involves no absurdity, and no contradiction betiveen different parts of the instrument, then such meaning is the only one we are at liberty to say Avas intended to be conveyed. There is no difficulty in ascertaining the natural signification of the words employed in the clause of the constitution under consideration, and to give them that meaning involves no absurdity or contradiction with other clauses of the constitution. The prohibition is against becoming indebted,— that is, voluntarily incurring a legal liability to pay, ‘ in any manner or for any purpose,’ when a given amount of indebtedness has previously been incurred. It could hardly be probable that any two individuals of average intelligence could understand this language differently. It is clear and precise, and there is no reason to believe the convention did not intend what the words convey. A debt, payable in the future, is obviousH no less a debt than if payable presently; and a debt payable upon a contingency, as upon the happening of some event, such as the rendering of service or the delivery of property, etc., is some kind of a debt, and therefore within the prohibition. If a contract or undertaking contemplates, in any contingencjq a liability to pay, when the contingency occurs the liability is absolute,— the debt exists,— audit differs from a present unqualified promise to pay only in a manner by which the indebtedness was incurred. And since the purpose of the debt is expressly excluded from consideration, it can make no difference whether the debt be for necessary current expenses, or for something else.” City of Springfield v. Edwards, 81 Ill. 632, 633.

Then, it seems to be too clear for argument or further consideration,that, whether this contract be considered asa debt or a liability, it is prohibited by this section also of the city charter, and that, for that reason, it is beyond the authority of the city council to make it, or to attempt to carry it out in any particular.

But it is further contended by the respondents herein that the contract proposed to be made with "Woolston is void, “because it is in violation of the charter provisions relative to advertising in case of contracts involving an expenditure of over $100.” . The exact words of the charter provision referred to read as follows: “ And in all contracts involving the expenditure of $100 or more, the city council shall advertise the same, with specifications, for a period to be prescribed by ordinance, and award the same to the lowest responsible bidder; and they shall so advertise all contracts when convenient so to do.” Charter of Helena, p. 15. The only reasons given why the council should not comply with this requirement of the charter are that it is “ not applicable to a plan for supplying a city with water, through a system of water-works, involving the use of the streets and hydrants;” and that “ it is very apparent that .this provision of the charter only applies to cases where the city seeks to make some public improvement at its own expense.” We do not see the force of these objections to this requirement of the charter. Certainly, the inapplicability does not appear from the reading* of the charter itself. There is nothing* in the nature of this contract which precludes the making of specifications. The size and number of miles of pipes and mains; the number of hydrants; the streets whereon the same are to be placed; the quantity of water; the number, force and size of the streams required to be thrown at one time; the capacity of the reservoirs, if any; and all other such particulars,— could be as well and as clearly stated in an advertisement as in the contract itself. Bidder's could easily be notified that the contractor would be granted the privilege of using the streets, alleys and squares of the city for laying the pipes and mains required, and that all such property would be protected by appropriate ordinances of the city. It is just as easy and convenient to advertise for bids in a matter of this kind, as it is in making preparations for building a house or a city hall. Certainly it cannot be contended that a contract like this does not involve the expenditure of $100 or over. The amount due under this contract, if it should be made, would in three days, and every three days for twenty years, amount to at least $125. And again, if the provision of the charter in regard to advertising and letting to the lowest bidder does not apply to such a contract as this, the penal clause of the same section of the charter, providing for the punishment of the mayor and-aldermen for being pecuniarily interested in a contract with the city, would not apply, and, for all that the charter says to the contrary, they might be corrupted with impunity. But we do not believe it was the intention of the legislature granting this charter to except contracts such as this from the operation of this .section of that instrument. We cannot regard this provision of the charter as directory merely. The latter clause, relating to contracts involving the expenditure of less than $100, being expressly left to the discretion of the council, shows that it was not intended to allow them any discretion in making contracts involving the expenditure of a greater sum. It is useless in the argument to put extreme cases. "We have nothing to do with any other case than the one before us. If this restriction is not wise, it must be removed by the same power that imposed it; that is not the province of the courts.

The next objection raised to this ordinance or contract is that it is in violation of the act of congress passed the 10th of July, 1886. The fourth section of that act reads as follows : “ That no political or municipal corporation, county or other subdivision in any of the territories of the United States shall ever become indebted in any manner or for any purpose to any amount in the aggregate, including existing indebtedness, exceeding four per centum on the value of the taxable property within such corporation, county or subdivision, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such, indebtedness; and all bonds or obligations in excess of such amount, given by such corporations, shall be void; that nothing in this act contained shall be so construed as to affect the validity of any act of any' territorial legislature heretofore enacted, or of any obligations existing or contracted thereunder, nor to preclude the issuing of bonds already contracted for, in pursuance of express provisions of law; nor to prevent any territorial legislature from legalizing the acts of any county, municipal corporation, or subdivision of any territory, as to any bonds heretofore issued or contracted to be issued.” Pub. Act No. 159, Forty-ninth Congress, First Sess. '

That, by entering into the contract proposed, the municipal corporation of the city of Helena would incur an indebtedness, within the meaning of the act of congress, we think has been sufficiently shown in the foregoing discussion and the authorities herein cited. The only question remaining to be settled is the amount of the indebtedness. The last assessment fixes the taxable property within the cor-' poration of Helena at $5,000,000. Four per cent, of this amount would be $200,000. The existing indebtedness of-the city of Helena amounts to $34,500. This leaves a mar-, gin, under the act of congress, of $165,500. All this appears-from the record in this case. It cannot be reasonably contended that the contract to pay $15,000 fer annum, for twenty years, creates a debt of $300,000. One hundred, and fifty thousand dollars placed at interest, at the rate of ten per cent, per annum, the legal rate in this territory, would yield" $15,000 per annum, and have the capital left at the end of the term. A much less sum would purchase an annuity certain of $15,000 per year for twenty years, and this sum would be the real measure of indebtedness. No tables are accessible by which this sum can be exactly fixed, and time does not permit the calculation to be made; but it is quite evident that the amount would be much less than $140,000. Then, wm see that this indebtedness cannot be considered as falling within the prohibition of the act of congress; and, if this were the only restriction, the injunction should properly have been dissolved.

But was the injunction improvidently or prematurely issued.? It is said by the eminent counsel for Woolston herein that “ it will be time enough to issue an injunction to prevent the city from paying for water when it has been furnished, and the council is threatening to do it.” Let us see whether or not this is the case. An examination of the proposed contract itself will show. Section 25 of the proposed ordinance reads as follows:

“ There is hereby appropriated out of the yearly revenues' of the city of Helena, for the use and benefit of the said; George F. Woolston, his successors or assigns, during the continuance of the franchise hereby granted, the following sums of money, viz.: Out of the general fund of the said' city, the sum of $20 per year for each hydrant required by this ordinance to be kept and maintained by said George; F. Woolston, his successors and assigns, on the thirteen and-•■one-half miles of mains provided for in this ordinance, for the use of the water through said hydrants by said city, for the purposes of sewerage; and the sum of $13 per year for each additional hydrant as herein provided for, for the same purposes. Out of the fire department fund of said city, the ¡sum of $80 per year for each hydrant required by this •ordinance to be kept and maintained by said George F. Wools ton, his successors and assigns, on the said thirteen .and one-half miles of mains provided for in this ordinance, for the use of the water through said hydrants by said city, for the purpose of extinguishing fires, and for the fire department, and the sum of $52 per year for each additional •'hydrant, as herein provided for, for the same purposes. .And it is hereby made the duty of the city council of the said city, during the continuance of this ordinance, to levy annual taxes under the provisions of the charter of said city, authorizing the levy of taxes for general purposes and for ■fire department purposes, sufficient in amount to provide .funds to meet the appropriation hereby made. For the .purpose of carrying out the provisions of this section, the .mayor and city clerk of said city are hereby required, without farther provision, to draw warrants on the above funds ■for the above amounts, and to deliver the same unto the said George F. Wooiston, or his successors or assigns. The first warrant shall be drawn and delivered, under this section, on the first dajr of the month after the works .hereby contemplated have been in actual operation for one entire month, and have been accepted by the city council of said city; which warrants shall be for amounts which are in ■the same proportion to the amount of the yearly appropriation as the time the works have then been in operation is to one year. Thereafter, and on the first day of each ■and every succeeding month during the continuance of this-ordinance, warrants for one-twelfth of the yearly appropriation shall be so drawn and delivered.” Transcript, pp. 19, 20.

It is readily seen from an inspection of the foregoing section of the ordinance that nothing remains to be done . by the. city council towards the issuance of the warrants. That as soon as “ the works hereby contemplated have been in actual operation for one entire month, and have been accepted,” “ the mayor and city clerk of said city are hereby required, without further provision, to draw warrants on the above funds for the above amounts, and deliver the same unto the said George F. Woolston, or his successors or assigns.” The time when the city council is “ threatening to pay for the water” will never come in the future; it has already arrived; it is here. The danger is imminent. The work of construction may begin at any time, “ not later than the 1st day of June, 1887;” and the “works shall be completed, and in readiness for the distribution of water, before.the 31st day of December, 1881, unless unavoidably detained, and, in any event, by the 1st day of October, 1888.” In a few months the contractor may have finished the water-works, and be knocking at the door of the city treasury, with his warrants in his hand. A mere ministerial act by the mayor and the city clerk, which will not take five minutes to complete, is all that remains to be done, on the part of the city, to unlock the treasury, and pour out the people’s money. The city council have nothing more to do with the matter. They are not even required to make an order or levy a tax before the issuance of the warrants. Then, why is it necessary for the courts to delay longer, before putting forth the strong right arm of its equity power, armed with the writ of injunction?

In an Indiana case, wherein the city of New Albany entered into a contract with the G. F. A. T. Co. for their fire-alarm boxes, at a given price, Sackett enjoined the city council from carrying out the contract, on the ground •that the indebtedness of the city had already exceeded the constitutional limit. The supreme court uses this language: “ It is further insisted by the appellees that other remedies were open to the appellant; and, for that reason, if for no other, the facts alleged did not make a case for a restraining order against them. In their assumption of that position, the appellees are not supported by the authorities. On the oontraiy, the weight of authority is overwhelmingly against the position they thus seek to maintain. In a case like this, no other remedy would be so apt, comprehensive and complete as a suit to restrain the municipal authorities from transcending the limitations placed upon them by the organic law of the state, and thus possibly involving embarrassing, if not harassing, complications. Dill. Mun. Corp. § 914 et seq.; City of New London v. Brainard, 22 Conn. 552; Webster v. Harwinton, 32 Conn. 131; Colton v. Hanchett, 13 Ill. 615; Barr v. Deniston, 19 N. H. 170; Mayor, etc. v. Gill, 31 Md. 315; Merrill v. Plainfield, 45 N. H. 126; Roberts v. Mayor, etc. 5 Abb. Pr. 41.” Sackett v. City of New Albany, 45 Amer. Rep. IT’S, also reported in 88 Ind. 473. This law is laid down by Mr. High, in his work on Injunctions, to the same effect. He says: “The remedy-by interlocutory injunction being preventive in its nature, it is not necessary that ■ a wrong should have been actually committed before a- court of equity will interfere, since, if this were required, it would, in most cases, defeat the very purpose for which the relief is sought, by allowing the commission of the act which complainant seeks to restrain; and satisfactory proof that defendants threaten the commission of a wrong which is within their power is sufficient ground to justify the interference.” High, Inj. § 31.

These principles, laid down by the text-writers, and approved by the courts, are not by any means novel. More than fifty years ago the supreme court of Ohio took occasion to announce this doctrine. In a case where a party was “ threatening ” to cut a mill-race through the plaintiff’s land, without his consent, in order to convey the w7ater to the mill of defendant, an injunction was sought for and granted, and a motion to dissolve was made on the ground that the writ was granted prematurely, and that the land was of very little value, and that many things remained to be done before the defendants would be ready to begin operations. In deciding that the motion to dissolve the injunction should be overruled, the supreme court, through Judge Collet, delivering the opinion, say: “It is contended that the bill should have stated that the release to the state had been executed, and that the canal commissioners had commenced the weir or race, or that preparations were made for its commencement; that the statement that they 1 threatened’’ to construct the weir and race is not sufficient to authorize the injunction. An injunction prohibits the doing something which could injure or endanger the rights of the complainant, as the causing nuisances, or committing trespass of certain kinds, or the assignment of a note, or the payment of money. If the court had evidence that the defendant intended to commit the wrong, before its commencement, and that he had the power to do it, they could no more refuse the writ to prevent its commencement than, after its commencement, to stop its progress. "Why should the court? There are many cases in which, if the court could not issue the writ until' the wrong ivas commenced, it would be of no avail; as to prevent the assignment of a note, opening of a mill-dam, or taking down a house. And in this case, the canal commissioners, with the force in their employ, might not allow sufficient time, after the commencement of the work, until it was finished, to have an injunction applied for, allowed and served, before its completion. The bill states that the defendants ‘ threaten"1 to dig this race, which is confessed by the demurrer. On propf of the defendants threatening to do the wrong, Avhen it appears they have the power, the court issues this writ.” McArthur v. Kelly, 5 Ohio, 154, 155.

But we find there are other authorities more directly in point to sustain the issuance of this writ of injunction. Because the cases referred to are not accessible, we must quote from the text-writers: “When an act, about to be committed by a municipal corporation, is clearly illegal, and its necessary effect will be to impose heaA^y burdens upon the property of citizens and tax payers, a court of equity is warranted in interfering by injunction for the prevention of such act. In such case, a more prompt and efficacious remedy is demanded than is afforded by the tardy action of courts of law, and equity alone can administer the necessary relief, by the exercise of its extraordinary power by injunction.” High, Inj. § 781. “The rule may be broadly stated, that courts of equity have undoubted jurisdiction to interfere by injunction when the corporate authorities of a city are taking improper or illegal proceedings, under claim of right, to do an act injurious to the rights of citizens and property holders.” High, Inj. § 793.

It is useless to multiply authorities, or further discuss this question. From the authorities, and the facts and circumstances of this case, it is clear to our minds that this injunction was neither improvidently nor prematurely issued.

There being no error in the judgment of the court below in overruling the motion to dissolve this injunction, the same is hereby affirmed.

Judgment affirmed.

Galbraith, J., concurs.