through their influence at corpbrate 6rother""ise:' cause' such' proceedings to be taken bytlietiorporation as i:t ought to take'ifthe lease were a fraud upon the stockholders whom it represented as trustee in; entering into the contract. But although the complainantniay oce-upy· a better position as to matters,of procedure and remedy than he would if he were a stockholder, this circumstance cannot prejudice the right of the defendant to insist that the contract cannot be set aside, in whole or in' part, unless it is invalid as between the North Carolina Railroad Conlpany' as a trustee for its stockholders and itself. The complainant's cause of action is founded on the rights to which he has succeeded as a mortgagee of the shares of stock, and his position is not assisted, nor is that:of the defendant prejudiced, by his neglect to substitute himself asa stock·' holder in place of a mortga.gee of the stock. Fol' these reasons,'and without discussing the other questions which are presented by the demurrer, the demurrer is sustained.
UNlTED STATES 'U. AMERICAN WATER·WORKS
OQ'I1'1't, D. Nebra8ka. March 1,1889.)
WATER COMPANIEs-TARII,l'F OF. CHARGES-CONSTRUCTION.
The Omaha water,works ordin,ance provides that the company shall furnIsh' water to citizensrel>iding along the line Cif its mains at certain rates; and' gives a. taritr for dwelling-houses according to the number of rooms auet other buildings of different kinds. Rents for other purposes are fixed by, meter-rates.'lowering inversely to the amount of water taken. Held. that the' company has the right t,o trea.t each building separately; and the United' States,. as owner of the Fort Omaha reservation,-a tract of ,mullY:8cr,fjs, OD! which are dwellings for officers: hospitals, warehouses, and not e-ntitled to be supplied as a single consumer. ' : .',:'., '. :
Injunction. George E. Pritchett, for the United States. J. lrI. Woolworth, John L. Webster, and Lake &- Hamilton, for respondentJ,
BREWER, J. This is a bill brought by the United States to enjoin the d'e:" fendant from taking up its or shutting offthe supply of Wlitet' heretoforefumished by it to Fort Olllaha; The facts are these: . ernment, complainant herein, owns a reservation of many aoresknoWn fis! "Fort Omaha," upon which are situaten a number of buildings,'atnong for officers, hospitals, warehouses, 'anU· 'barracks: them for at least a regiment of troops. In 1870, the state Nebraska ceded jurisdiction over this tract of land to the general government: At that time it was a. mile or two distant from the limits of the city ofOnii!ha. The defendant is a corporation having authority byordinances'ah'cli tracts'to lay down, its in the streetsoHhe'city ofOrtJaha:,' and obliged to: supply its citizens and inhabitants with wal:fet anee with the provisions of the ordinances.Some·yt!l1rs sinoo"tbEPg0Voi.i
emment made a contract with defendant to extend one of its mains 1;(, For,t Omaha, and supply the buildings on'the premises with water at a stipulated sum. This contract, by its terms, expired at the end of one year, but similar contracts have been made from year to year, the last one expiring about the 10th of last July. In 1887 the exterior limits of the city of Omaha were extended so as to include said military reserJuly, the comvation and fort. At the expiration of the contract plainant declined to enter into another, and insisted that it was entitled to the privileges of a citizen or inhabitant of the city of Omaha, and a supply of water from the water-works of the defendant at ordinance rates, and for all the buildings on the fort reservation to be considered as one consumer. The defendant declined to supply water under these terms, and was proceeding to take up its mains, when this bill was filed. The facts are all agreed upon, and but two questions have been presented and argued. First. Has the government, in respect to this reservation, any rights under the ordinance of the city, or power to compel the defendant to supply it with water? The argument, briefly stated, is that this reservation, though within the exterior limits of the city of Omaha, is not a part of it, or even a part of the state of Nebraska, because jurisdiction has been ceded to the general government. The city has no power to enter on this reservation, open, grade, or improve streets, or exercise any municipal powers, or discharge any municipal duties within its limits; hence conversely, neither the government, as the owner of the ground, nor any of the persons dwelling upon the reservation as individuals"have any rights as against the municipality or under its ordinances. The cases of Railroad Co. v. Lowe, 114 U. S. 525,5 Sup. Ct. Rep. 995, and of Railroad Co. v.McGlinn, 114 U. S. 542, 5 Sup. Ct. Rep. 1005, and the cases cited in the opinion, are referred to as authorities upon this question. It may turn, partially at least, on the true intent and meaning of the contracts and ordinances heretofore referred to. Perhaps a fair construction would require the defendant to furnish water to all within the outer boundaries of the city, irrespective of the question whether any individual or property is within the territorial jurisdiction of tliemunicipality. Isball not, however, decide that question, but pass to the other, the answer to which must be against the contention of the co:mplainant, and fatal td this bill; As heretofore stated. the reservation or fort is a tract of many acres, upon which are situated many houses .and other buildings. Now, it makes a very material difference all these houses and buildings are to be treated separately by reason, 'of the separate occupancYt or as a unit by'reason of the single proprietorship of the government. The average amount of water deliv" ared t@ the reservation has been 20,000 gallons per day. The meterrates, as· fiKed by ordinance, are 100 to 500 gallons per day, 35 cents per 1,000 gallons} '4,000 gallons per day, 15 cents per 1,000 gallons. Now, if each buillling. is to be treatp.u asa separate consumer, the water would have .paid for probably at the rate of 35' cents, whereas, if all are to be treated,as simply one consumer, then 15 cents per 1,000 gallons would betpe.price. That under the ordinance the water company has a.right
UNITED STATES t7. AMERICAN WATER-'WORKS 00.
to treat each building as a separate consumer, seems to me very clear.
Section 10 of the ordinance .is the ODe that prescribes the rates. It reads as follows: Any person, company, corporation, or association, or their assigns, who shall construct such water-works shall furnish water to citizens residing along the line of said mains, or contiguous to the same, at all times when any such water-works shall be maintained, at rates which shall not exceed the following tariff, to-wit:
TARIFF OF WATER-RATES.
100 to 500 gallons per day, -at the Tate of 5UOto'l,OOO" .. .. 1,000 to 2,000" .. .. 2,000 to 4,000 ... .. .. Over 4,000 .. .. ..
Obviously the whole scope of this section is to give to the watercompany a right to treat each building separately. That, by the agreed statement of facts, has been their constant practice, and any other conto it. The very fact that all the special struction would work rates prescribed make no reference to ownership of buildings or property ,shows that the' question of ownership is immaterial, and that the rates depend upon the character of the property, and the probable extent of the use. Take the first two items: it is not to the owner of the dwell... ing-house not exceeding five rooms, but for the house itself, and for each additional room. The same prindple should apply to a large property like the reservatioD, upon which are m,any buildings. The question is not who owns all this, but what is the character of the buildings, the number of them, and the uses to which they are put. And the meter rates are to be construed as merely a substitute for the special rates, giving the right to pay for the amount of water, rather than upon the character and size of ,the building. Suppose some one in the city owning a block of ground should put up 20 or 30. residences.to rent; it would be a, clear violation of the spirit of this ordinance to permit"him to supply all these houses as though they constitutecilone property. Indeed, as nothiQg is said .al;>out contiguity, if ownership was the test, a
residences, 'stores, ,and 's.caftered iIf dit: fetent: parts 'of the citymight i insist upon supply to'allat the lowest rate; or, as neither ownership nor contiguity is spoken of, why might he not cnotract for all the water from defendant, and subcontract it to vain there .can be little doubt on thIS..,.T,he practIce whlChh'as obtamed ever SlUee defendant's water'works were established correctly interprets the ordinance t and expresses its true spirit and meaning; and .that gives defendant the right to building a separate consumer, and charge either for the bmldmg or at meter rates accordingly. This being the true interpretation or the contract, it follows that complainant's case must fail, and a decree'must go dismissing the
GEORGIA INFIRMARY FOR TIlE REi,IEF AND PROTECTION OF AGED AND :,; , ,AFFLICT1l:D ;NEGMES 1:. JONES et al. CITY CoUNCIL 'OF AUGUSTA'lI. SAME.
(Cirouit Oourt, S. D. New York. February 22, 1889.)
., Testator.'after disposing of all the residue of hill estate except certain cotton against the United States government. bequeathed a specified sum out of the proceeds of ,said claims to complainants. or so much should remain'after paying cert!,in legacieS to others. At that time his claims were pending before the court of claims, but before his death he col· lected them, and invested the proceeds insecurities, realizing a sl1m sufficient to 'have satisfied the bequest to complainants. Held, that the legacies were 8,pecifip. and were payable only in case executors collected the funds from source inqica:ted, and, that ttlstator by coJlectini' t,hem caused an ademption of'the legaCIes. ' , ;
In Bills for legacies. ' Bills respectively by tht> Georgia Infirmary fOl'the Relief and Prote-e:. tion of Agl:ldand Afflicted Negroes and the city council of against Jones· and a-n()ther,administratorsc. t. a. of Gazaway B. Lamar, for the payment of certain legacies given to complainant. John W. Weed; forcomplllinallts. Oharles O. 'Beaman, for defendants. WALLAGE; J. These aCtiOllS involve the rights of the complainants, to legacies of $50,000, bequeathed to then1 for charitable objects by the willof Gazaway B.-Lamar, deceased. The will was executed September 28, 1872, Rhdatthat time the testator owned 'real and personal property in possession,antl 'had besides certain claims fora large am(nihtagainst the goverritrient'ofthe United Statesfor cotton which had -been seized and sold by its ,officers during the war of the Rebellion, whicl> were then' 'being'prosecuted for collection. The will, by the first