Water Company

A municipality has no implied power, from the mere fact of its creation, to engage in the business of supplying its citizens water for pay. It cannot do so except by virtue of express legislative authority. A municipality having such legislative authority, which has entered into a contract with an existing water company to supply the citizens with water, has thereby exhausted its power and cannot subsequently erect its own water works for the same purpose; White v. Meadville, 177 Pa. 643, 25 Atl. 695, 34 L. R. A. 567. But It was held that, although a contract between a water company and a city provided that no contract or privilege would be granted to any other person or corporation to furnish water, 200 U. S. 23, 26 Sup. Ct. 224, 50 L Ed. 353 following Helena W. W. Co. v. Helena, 103 U. S. 3S3, 25 Sup. Ct 40, 49 L. Ed. 243; see Walla Walla v. Water Co., 172 U. S. 1, 19 Sup. Ct 77, 43 L. Ed. 341; Vicksburg v. Waterworks Co., 202 U. S. 453, 26 Sup. Ct 660, 50 L. Ed. 1102, 6 Ann. Cas. 253. A municipal corporation furnishing water to its inhabitants acts in a private capacity; its relation is one of contract. Water rates are not taxes; they are the price paid for a commodity; Jolly v. Monaca Borough, 210 Pa. 345, 65 Atl. 809; but their collection has been considered not a source of private profit, but a mode of taxation; Springfield F. & M. Ins. Co. v. Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R, A. 600, 51 Am. St. Rep. 607. Their regulation is a governmental power; Owensboro v. Waterworks Co., 191 U. S. 358, 24 Sup. Ct 82, 48 L. Ed. 217. A water company under a statute which provides that water companies shall furnish pure water, will be enjoined from collecting water rents when it has supplied water utterly unfit for domestic use or for steam purposes. The courts cannot decree that the company must obtain a supply of pure water. They can only enjoin it from collecting water rents for impure water; Bryrner v. Water Co., 172 Pa. 489, 33 Atl. 707^ A water company which has a contract with a city to furnish water to extinguish fires is not liable to the owners of private property destroyed by tire through its failure to furnish water according to the contract; House v. Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; there is no privity of contract between the parties to the action; Nickerson v. Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Fitch v. Water Co., 139 Ind. 214, 37 N. E. 982, 47 Am. St. Rep. 258; Wainwright v. Water Co., 78 Hun (N. Y.) 146, 28 N. Y. Supp. 987; Beck v. Water Co., 11 Atl. 300; Foster v. Water Co., 3 Lea (Tenu.) 42; nor does the fact that the ordinance granting the franchise requires the company to supply the city and its inhabitants with sufficient water to put out fires, or to maintain the water at a certain pressure, create the necessary privity of contract; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; Eaton v. Waterworks Co., 37 Neb. 546, 56 if. W. 201, 21 L. R. A. 653, 40 Am. St. Rep. 510; Britton v. Water Works Co., 81 Wis. 48, 51 N. W. 84, 29 Am. St. Rep. 856; not even a statute, requiring the pipes to be kept charged at a certain pressure, will give the right of action; 2 Exch. Div. 441, reversing 6 L. R. Exch. 404. Such owner cannot maintain an action, even though the city has raised by taxation a special fund, to which the plaintiff contributed, to pay for a sufficient supply of water for use in case of fire; Becker v. Keokuk Waterworks, 79 la.; company, under its contract with the city; Howsinon v. Water Co., 119 Mo. 304, 24 Si W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654. Nor has a municipality such an interest in the property destroyed as to give it a right of action,* and the owner of the property destroyed cannot maintain an action as assignee of the right of action of the municipality; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 485. An action of tort will not lie; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313. But it has been held that when the contract of a water company with the city declares that it is made, inter alia, for the protection of private property against fire, the owner of property which is taxed for water rent, and is destroyed by fire through the failure of the company to supply a sufficient quantity of water, may, in his own name, sue the company on its contract with the city; Paducah Lumber Co. v. Water Supply Co., 89 Ky. 340, I 12 S. W. 554, 13 S. W. 249, 7 L R. A. 77, 25 Am. St. Rep. 536; in such case the company is liable; llugge v. Waterworks Co., 52 Fla. 371, 42 South. 81, 6 L. R. A. (N. S.) 1171, 120 Am. St Rep. 207; see 13 llarv. L. Rev. 226. That a taxpayer has no right of action against a water-supply company for failure to perform its contract with the municipality, see German Alliance Ins. Co. v. Water Supply Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000, where it is said a majority of the cases so hold. A company for furnishing water to the public is subject to the visitatorial power of the state; Com. v. Russell, 172 Pa. 506, 33 Atl. 709. An existing system of water supply in a municipality which is the property of private individuals and is operated under a contract with the municipal corporation, is private property which may be acquired by eminent domain; Long Island W. S. Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165. A statutory provision that all water companies must furnish free water to their municipalities does not constitute a contract to which the municipality is a party. The state may relieve the water companies therefrom and permit them to furnish water at reasonable cost; Boise Water Co. v. Boise City, 230 U. S. 84, 33 Sup. a. 997, 57 L. Ed. 1400. The right which a water company acquires by a lease from a riparian owner and not by the exercise of eminent domain is no greater than the right of the riparian owner; Philadelphia & R. R. Co. v. Water Co., 182 Pa. 418, 38 Atl. 404. A regulation requiring a consumer to pay a month’s rates in advance or in default thereof the company..will shut off the water or requiring the consumer to pay at the end of the month the rates for the preceding sonable within the power of such public service corporations; Tacoma Hotel Co. v. Water Co., 3 Wash. 316, 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35; Shepard v. Gas Light Co., 6 Wis. 539, 70 Am. Dec. 479; Williams v. Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266; State v. Board of Duluth, 105 Minn. 472, 117 N. W. 827, 127 Am. St. Rep. 581; Cedar Rapids G. L. Co. v. Cedar Rapids, 144 la. 426, 120 N. W. 966, 48