BIENVILLE WATER SUPPLY COMPANY Appt., v. CITY OF MOBILE and John Curtis Bush, Mayor Thereof.

There is such a similarity between the two suits commenced by plaintiff on February 21, 1899, as suggests a question whether the decision of the one should not be conclusive as to the disposition of the other. The parties were the same. In each the plaintiff set forth its charter and its contracts with the city, and each prayed a decree restraining the city from building or operating any system of waterworks for supplying the city. It is true the bill in the first case counted specially on the contracts made between the plaintiff and the city, and sought a restraint of the city only during the life of those contracts, while the bill in this case sets up more at large the charter rights of the plaintiff as given by the statutes of the state, contends that those rights are infringed by the subsequent legislation of the state and the action of the city thereunder, and seeks to restrain the city during the twenty years named in the plaintiff's charter and until the city shall buy the plaintiff's plant. But each of these seeks to restrain the city from the time of filing the bill. All the rights which the plaintiff had by virtue of its charter, and all the violations of such rights caused by the legislation of the state and the action of the city, existed at the time of the filing of the bills and during the lifetime of the contracts with the city, and could have been presented in the first suit and been among the matters to be considered in determining whether the plaintiff was entitled to the injunction sought. If the plaintiff was not entitled to an injunction during the lifetime of the contracts with the city it is not entitled to any similar relief after the expiration of those contracts. In other words, the plaintiff failed to set up in the first suit all its grounds of relief. Can it be permitted in this to set up additional grounds and obtain the very relief sought in the prior suit as well as additional relief, the same in kind though longer in duration? Will the law permit the splitting up into separate suits of different grounds for the same relief? Will not the judgment or decree in the first be held a final adjudication of the rights of the parties? It appears that the decree in the other suit was rendered in the circuit and affirmed in this court about seven months before the decision of the present case in the circuit court. As against this, it may be said that the decree in the other suit was neither pleaded nor proved, and no question of res judicata can be considered unless the earlier decision is formally presented on the hearing of the later case. This, doubtless, is technically true, but we take judicial notice of our own records, and, if not res judicata, we may, on the principle of stare decisis, rightfully examine and consider the decision in the former case as affecting the consideration of this.

But, passing this matter, and leaving out of consideration the special contracts directly between the plaintiff and the city, let us inquire whether any contract rights given to plaintiff by its charter have been violated by subsequent legislation of the state, and the action of the city under such legislation. Plaintiff contends that under its charter, as created by the acts of 1883 and 1885, it acquired the exclusive right to supply the city of Mobile with water from any stream in the county of Mobile, except Three Mile creek, and the right to purchase or condemn the Stein franchise and plant for supplying the city with water from Three Mile creek; that by the later legislation such exclusive right was in terms taken away, authority given to the city of Mobile to build waterworks and supply the city with water therefrom, and that the city had taken possession of the Stein plant, was operating that and was building a system of waterworks of its own, and that thereby its contract right was impaired in violation of the prohibition of the Federal Constitution.

It becomes, therefore, necessary to see, not only the extent of the rights conferred upon plaintiff, but also under what constitutional conditions it received its grant, and what power was reserved to the state to modify the terms thereof. In the first place, the plaintiff did not receive the exclusive right to supply Mobile with water. The proviso in the charter reserved to the state the power to charter other companies for such purpose. Obviously the legislature contemplated the fact that in the future other sources of supply and other companies might be necessary in order to furnish an adequate supply for the growing city, and reserved to itself the right to make such provision as it should deem expedient therefor. It is true the companies which might be chartered were not to 'interfere with the property rights or the rights of obtaining water pertaining' to the plaintiff. But manifestly 'property rights' refer to rights in respect to tangible property, and thus construed the proviso forbade any interference by any new company with the plant of the plaintiff. In addition, it also forbade interference with the 'rights of obtaining water pertaining' to the plaintiff. The plaintiff had not at the time of these transactions obtained the Stein franchise for obtaining water from Three Mile creek, and could only claim an exclusive right of obtaining water from other sources of supply within the county of Mobile.

The plaintiff, therefore, took its charter with notice that it was not given the exclusive right of supplying the city of Mobile with water, and it had not, at the time of these transactions, obtained that which its charter before amendment purported to authorize it to obtain, to wit, an exclusive right to all the sources of supply within the county. In reference to this the supreme court of Alabama, in an opinion filed on June 11, 1901 (Mobile v. Bienville Water Supply Co. 30 So. 446), and since the decree in the circuit court, used this language:

'It cannot be pretended that, in granting a charter to the complainant company in 1883, the legislature conferred on that company any exclusive privilege for supplying the city of Mobile and its inhabitants with water. All rights not exclusively granted to the complainant were reserved, and the rights thus reserved included the granting of a franchise to another corporation to carry on the same business in the same territory. While the effect of granting such a franchise, afterwards, to the city, might be to impair, and possibly by fair competition to ultimately largely destroy, the value of complainant's plant, it would not be in excess of legislative power to grant the franchise to the city, nor would it in anywise infringe the Federal Constitution, prohibiting a state legislature from passing laws impairing its obligations. If there is no contract, there is nothing in the grant on which the Constitution could act. The element of a contract by the state with the complainant company did not enter into the grant of its franchise to establish and operate a system of waterworks in Mobile. Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079; Skaneateles Waterworks Co. v. Skaneateles, 161 N. Y. 154, 46 L. R. A. 687, 55 N. E. 562; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. ed. 773;State v. Hamilton, 47 Ohio St. 52, 23 N. E. 935; Scranton Electric Light & Heat Co.'s Appeal, 122 Pa. 154, 1 L. R. A. 285, 15 Atl. 446; 2 Beach, Priv. Corp. §§ 22, 27.'

By art. 1, § 23, of the Constitution of Alabama the legislature is prohibited from 'making any irrevocable grants of special privileges or immunities.'

The significance of this provision was considered by the supreme court of Alabama in Birmingham & P. Mines Street R. Co. v. Birmingham Street R. Co. 79 Ala. 465, 58 Am. Rep. 615, in which case it appeared that the city of Birmingham had given what was in terms an exclusive right to the plaintiff to construct a street railway along certain streets, and afterwards had given to the defendant the right to occoupy had given to the defendant the right to occupy the first grant by the city, the supreme court said: 'If the power to grant such a franchise resided in this municipality . . . there can be no doubt, either of the jurisdiction, or of the duty, of a court of equity to protect the invasion of the right. . . . If, however, the power in question did not exist, then the grant would be void, so far as it purports to be exclusive in its nature;' and it was held that the city authorities had no power to grant the exclusive right claimed by the plaintiff. In the discussion of the question the court further used this language:

'What, it may be asked, is the nature of these special or exclusive privileges, which are thus prohibited to be granted by the legislature? It seems plain from the very terms used that the evil intended to be specially prevented was the granting of exclusive privileges in the nature of a monopoly by the legislative creation of corporate franchises. Monopolies were void at the common law, and are not commonly conferred by legislative grant, and need no special prohibition in the organic law of a free rebublic.

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'The policy of the law, as now declared by our Constitution, is as clear in the condemnation of the grant of irrevocable exclusive privileges conferred by franchise, as that of the common law was in the reprobation of pure monopolies which were always deemed odious, not only as being in contravention of common right, but as founded in the destruction of trade by the extinguishment of a free and healthy competition. Case of The Monopolies, 11 Coke, 84b.

'The exclusive right of the appellee to the privilege claimed, in our opinion, cannot be sustained. The general assembly would itself have no power under the Constitution to make such a grant.'

It is true that this case was not decided until the December term, 1885, which was after the passage of the last of the two statutes granting the charter to the appellant; and it is also true that in considering questions of an alleged state infringement of a contract we are not concluded by the exposition by the courts of the state of the terms of the contract or the effect of the legislation. At the same time, the opinion of the highest court of the state, even in contract cases, is entitled to most respectful consideration, and should not lightly be ignored.

It is contended by the appellant that § 23 of art. 1 must be considered as qualified by § 10 of art. 14, the section which gives the general assembly power to alter, amend, or revoke a charter 'whenever, in their opinion, it may be injurious to the citizens of the state; in such manner, however, that no injustice shall be done to the corporators.' It is said that while under this provision the judgment of the general assembly upon the question whether the charter is injurious to the citizens of the state may not be subject to judicial examination, yet whether injustice has been done to the corporators is in the very nature of things a judicial question, and one which no action of the legislature can preclude the courts from considering. As a corollary from this it is argued that if in the opinion of the courts the attempted revocation works injustice to the corporators, it will be adjudged an invalid exercise of legislative power. This section is a new one in this court. It is found in the constitutions of more than one state and has been reviewed in some state courts. So far as they have expressed themselves the expressions have been in favor of the right of a judicial review. Wagner Free Inst. v. Philadelphia, 132 Pa. 612, 19 Atl. 297, is cited by the appellee, but that case simply holds that whether the charter is injurious to the citizens is a question of legislative determination. Further than that the opinion does not go. Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 407, 23 L. R. A. 264, 25 S. W. 75, is also cited. In that case a statute which in effect amended railroad charters was sustained. In the opinion the propriety of the amendment was discussed, a limitation to its scope declared, and in reference to a possible construction thereof the court observed (p. 436, L. R. A. p. 275, S. W. p. 84):

'An amendment to that extent would be, manifestly, unjust to the companies, and violative of the Constitution, which, while it grants the right to amend when in the opinion of the legislature the charter is injurious to the citizens, limits the right to do so to amendments that are just to the corporators.'

Subsequently, in St. Louis, I. M. & S. R. Co. v. Paul, 64 Ark. 83, 37 L. R. A. 504, 40 S. W. 705, another section of the same statute was presented and sustained, Leep v. St. Louis, I. M. & S. R. Co. being cited with approval. This case was brought to this court on error, and affirmed. 173 U. S. 404, 43 L. ed. 746, 19 Sup. Ct. Rep. 419. In Macon & B. R. Co. v. Gibson, 85 Ga. 1, 11 S. E. 442, the application of a similar constitutional provision was considered, and upon it the court observed (p. 16, S. E. p. 444):

'No constitutional principles are infringed by exercising a reserved power to revoke special privileges or immunities, unless the provision of our own Constitution is violated, which forbids doing it in such manner as to work injustice to the corporators or creditors of the corporation. Whether the mode adopted by the legislature in a given instance is just in this respect or not, whilst primarily a legislative question, may, if palpably decided wrong, become a judicial question.'

It does not appear that the supreme court of Alabama has passed upon this specific question. We do not think it necessary to determine absolutely the precise meaning of this section or the limits of judicial inquiry under it. It may be simply declaratory, for courts have often held that it was beyond the power of the legislature, under the guise of an act amending or repealing a charter, to take away the property of the corporation. Clearly, the question is, in the first instance, presented for the consideration of the legislature, and a presumption of validity attends its action.

Obviously, from the several constitutional provisions which are quoted in the statement of facts, it was intended that the legislature should have the right of revocation and amendment, and that whoever took a charter should take it subject to that right. To what could such revocation or amendment extend? The possible rights of a corporation group themselves into three classes: First, the right to the tangible property which it may acquire; second, the right to do the specific things which are named in the charter; and, third, the right to exclude others from doing like things. It has been held that the right of revocation or amendment carries with it no right to appropriate the tangible property belonging to the corporation. As said by Chief Justice Waite, speaking of the power of amendment, in Sinking-Fund Cases, 99 U. S. 700, 720, sub nom. Union P. R. Co. v. United States, 25 L. ed. 496, 501: 'All agree that it cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made.' Nothing of this nature was, however, attempted by this legislation. The plaintiff was left in undisturbed possession of its tangible property. So we need not stop to consider what protection could be afforded if the attempt had been made to take away its property.

The second class includes the powers of action granted to the corporation; in other words, the right to use the tangible property for the purposes of the charter. But none of these powers were taken away from the plaintiff. It was left free to use its plant in supplying the citizens of Mobile with water, and to charge and collect pay for its services. Hence no inquiry is pertinent in respect to the limitations, if any there be, on the right of the legislature to take away such powers.

The remaining class is of those rights which flow from exclusive provisions in the charter,—the right to prevent others from doing the same things. It cannot be doubted that such a right is valuable; that, for instance, it would be worth something to the plaintiff to have, not only the right of supplying Mobile with water, but also the right to exclude others, and thus prevent all competition. That which gives to a government patent for an invention its chief value is not the right to manufacture and sell the thing invented, but the right to exclude others from so doing, the monopoly for the prescribed term of years. But the grant of cable grant of special privileges or immunities.' Constitution. As said by its supreme court, in the quotation just made: 'The general assembly would itself have no power under the Constitution to make such a grant.'

By a separate section of the Constitution is is affirmatively declared that the legislature shall pass no act 'making an irrevocable grant of special privileges or immunities.' While that body may grant special privileges and immunities, grant franchises to build waterworks, construct railways, or other works of public utility, and by a failure to duplicate a grant make it in effect for the time being exclusive, yet no one legislature can forestall action by a succeeding legislature, or bind the state by making the grant in terms exclusive. As much force and effect must be given to § 23 as to any other, and it was obviously the intent that, even if exclusive privileges were granted, the monopoly feature thereof should always be subject to revocation. In this section there is no suggestion of amendment or alteration. That which is distinctly provided is the absolute power of revocation. To hold that the exclusive feature of plaintiff's grant could not be revoked because thereby injustice might be done to the corporators is simply to nullify § 23.

For these reasons we are of the opinion that the decree of the Circuit Court was right, and it is affirmed.