WATER-WORKS CO. V. CITY OF KANSAS.
tachments, and a writ of replevin issued there. The plaintiffs were not parties to any of the suits, but were notified by the defendant as Hoon as the cars were seized. They did not ask leave to intervene, but notified the defendant that they held the bills of lading, that they had bought the goods in good faith, and that the title was in them. '1'he plaintiffs in the attachment and replevin suits obtained judgments, under which the goods were sold. The plaintiffs then brought this action against the railroad company to recover the value of the goods. L. W. Barringer, for plaintiff. J. Reodman Paul and George W. Beadle, for defendant.
BUTLER, J. It is quite plain,on the facts stated, that the defendant is not responsible for the plaintiff's loss. The Pennsylvania statute of June 13, 1874, (Purd. Dig. 44,) governs the case. The object of this legislation was to relieve railroad companies, and other carriers and bailees from the duty (supposed or actual) of defending suits against the property intrusted to their care. The plaintiff received notice of the attachment, and it was his duty to appear and defend, if he supposed any good could be accomplished by doing so.
NATIONAL WATER-WORKS Co. OF NEW YORK V. CITY OF KANSAS.
(Oircuit Oourt, W. D. Missouri.
October 22, 1886.)
MUNICIPAL CORPORATION-CONTROL OF STREETS-WATER COMPANy-SEWER.
A water company laying its pipes in the streets of a city, under a contract with the city, does so subject to the right of the city to construct sewers in said streets whenever and wherever the public interest demands; and if, in consequence of the exercise of this right. the company is compelled to relay its pipes. it can maintain no claim therefor against the city, unless the action of the city is unreasonable or malicious. An allegation that the sewer might have occupied other space in the street is not equivalent to an allegation that the city acted unreasonably or maliciously.
Action for Damages. Demurrer to petition. T. A. F. Jones, for plaintiff. Scarritt & Alderson, for defendant.
BREWER, J. This is an action for damages. The plaintiff is the owner of the Kansas City Water-works, and the facts upon which the claim is founded are these: In 1883 plaintiff laid a water-pipe on East Eighth street. This was a street whose grade had been established, and the plaintiff was directed by the city to lay a waterpipe therein. and the same was laid, in the place and ma-nner directed by the city. In the year 1884 the city dug a sewer on said
Eighth street, in the same part of the street in which the plaintiff's water-pipe had been laid, in consequence whereof the plaintiff was compelled to take up and lay its pipe in another place. It is alleged that there was ample room and space for said sewer elsewhere in said street, and where it could be easily and safely located. For the cost and expense of this relocation and relaying of its water-pipes this action is brought. By an act of the legislatu1'e of 1873, the city of Kansas was authorized to construct water-works, or to grant to any pe1'son 01' corporation the right to erect and operate such water-works, upon such terms and conditions as should be agreed on in a contract therefor. In the fall of that year an ordinance was passed authorizing the plaintiff to construct such water-works, the provisions of which, being accepted by the plaintiff, constituted the contract between the parties. In this ordinance it was provided as follows: "The city reserves to itself the right, at all times, to make and enforce all reasonable and proper regulations as to .the place where pipes may be laid in streets, avenues, lanes, alleys, and public highways, and the conducting of all operations thereon and therein by said company." Also that "the city of Kansas, by its authorized agent or agents, shall have a right to designate on what streets, avenues, lanes, or alleys water-pipes shall be laid and fire hydrants placed, and the places at which the said hydrants shall be located; but said company shall not be required to lay pipes on any street, avenue,lane, or alley on which the grade shall not have been established; and the places for the location of hydrants shall be designated by the city, as aforesaid, at such times and in such manner as not to impede or interfere with the laying of pipes by the company." By article 9 of the amended charter of Kansas City the common council was given general control of the sewerage system, and authorized to construct public, district, and private sewers. . ,Upon these facts the question is presented whether the city incurred any liability for so constructiug a sewer as to interfere with and compel the relaying of the water-pipe of the plaintiff, once laid in the place and manner by it directed. The amount in controversy is small, but the question involved is important. The plaintiff contends thd by this contract it was bound to lay its water-pipe in this street; that it did lay it in the place and manner by the city directed, and thereby acquired such a vested property right in an undisturbed location and possession that any future trespass upon or invasion thereof, like any other attack upon private property, would subject the city to an action for damages; while the contention of the city is that the matter of sewerage is one affecting the public health; that it could not if it would, and it did not if it could, contract away the right to construct sewers in any part of the public streets it might deem necessary; and that the plaintiff took its contract right to lay its pipes in the public streets subject to the paramount and iualien-
NATIONAl, WATER-WORKS CO. V. CITY OF KANSAS.
able right of the city to construct its sewers wherever therein, in its judgment, the public interests demanded. I think the contention of the city is correct. Sewerage is a matter unquestionably affecting largely the public health, and no municipality can make a contract divesting or abridging its full control over such matters. No more marked illustration of this can be found than in the famous Slaughter-house Cases. In 1869 the legislature of Louisiana granted to a corporation the exclusive right for a term of years, to have and maintain slaughter-houses within a certain prescribed In Slau.Qhter-house Cases, 16 Wall. 36, the supreme court sustained the validity of this act in a controversy between the corporation and certain butchers doing business within the prescribed tel'ritoriallimits. Subsequently, and before the expiration of the term for which the charter was granted, legislation was had abolishing the exclusive privileges, and permitting, upon certain terms, other slaughter·houses. The validity of this legislation was challenged as impairing the obligations of a contract, but in the case of Butchers' Union Co. v. Crescent City, 111 U. S. 746, S. C. 4 Sup. Ct. Rep. 652, the supreme court unanimously sustained it on the ground that it involved the matter of the public health, and that no legislature, and I may add, afortiori, no municipality, could contract away its right of control in respect thereto. The contract between the plaintiff and the defendant must be interpreted in the light of this well-established rule; and, 80 interpreted, the plaintiff took its right to lay its pipes in the streets of the city su bject to the paramount and inalienable right of the city to construct sewers therein whenever and wherever, in its judgment, the public interest demand. Laying its pipes subject to this right of the city, it has no cause of action if, in consequence of the exercise of this right, it is compelled to relay its pipes. It is true that the petition alleges that there was ample room in the street for such sewer, and it may be that any malicious or action by the city in the exercise of the right to construct sewers, working damage to the plaintiff, may be the foundation of a claim for damages. But the city is presumed to act without malice, to act reasonably, and as, in its judgment, the interests of the public demand. The mere fact that there is other space which might be occupied by the sewer. while it may be a circumstance tending to show, does not of itself prove, that the city acted maliciollsly or unreasonably. Hence the allegation, as it stands, is not such a one as of itself exposes the city to liability. Under these circumstances the demurrer to the petition must be sustained.
(Oilrcuit Oourt, D. New Jersey.
W. and F., being subjects of and domiciled in the kingdom of Belgium, en· gaged in a fight on board of a Belgian ship while lying moored to a wharf in Jersey City, and within the territorial jurisdiction of Hudson county, New Jersey. F. was stabbed with a knife and killed by W. Both belonged to the crew of the ship. and the fight took place below deck, the only present'being other members of the crew. W. was arrested and committed to jail by the local authorities of the county, on the charge of murder. The Belgian consul. for the states of New York and New Jersey, sued out a writ of habeas cO'/'pus for the discharge and surrender of the prisoner on the ground that. under the law of nations and by force of existing treaties between the United States and Belgium, W. was entitled to be sent home for trial under the laws and by the tribunals of his own country. Held, that section 753. Rev. St. U. S.. giving power to the courts and judges of the United States to grant writs of ltabeas corpus in certain cases. therein specified, does not extend to the case of the prisoner. 2. ARTICLE 11 OF THE TREATY OF 1868 BETWEEN THE UNITED STATES AND BET,Article 11 of the treaty of 1868 between the United States and Belgium does not confer authority on foreign consuls to take cognizance of offenses committed against the local laws of this country. It makes no provision for the creation of a consular court, nor does it authorize the consul to act even as a committing magistrate.
HABEAS CORPUs-JURISDIC'l'ION OF UNITED S'rATES Couu'rs AND JUDGES.
Habeas Corpus. Coude7't Bros., for petitioner. Charles H. Winfield and William Y. Johnson, Asst. Atty. Gen., for the State.
WALES, J. This writ was directed to the keeper of the jail of Hud. son county, New Jersey, on the petition of Charles Mali, Belgian consul for the states of New York and New Jersey, in order to obtain the discharge and surrender of Joseph Wildenhus, who is charged with the crime of murder, and of two other persons who are detained, in default of bail, as witnesses for the state. Copies of the warrants of commitment, which are in regular form, are annexed to the return to the writ, and from these, and the statements in the petition, it ap· pears that on the sixth of October of the present year, while the Bel· gian steam-ship. Noordland lay moored to her wharf in Jersey City, New Jersey, an altercation took place between two of the crew, to-wit, the above-named Joseph Wildenhus and one Figens, in which Wildenhus stabbed Figens with a knife, from the effects of which the latter soon after died. Both parties were Belgian subjects, and domiciled in that kingdom. The affair occurred below the deck of the vessel, and no one but members of the crew were present. Wildenhns was anested and committed to jail by the public authorities of Jersey City as if the offense had been committed in the body of Hudson county; and it is proposed that the offender shall be tried and otherwise dealt with by the state of New Jersey.