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against the infringement of their rights as is fatal to the relief they now seek. This contention, in my opinion, is not well taken. So far from the action of the city council having been acquiesced in by the complainants, it has been the subject of repeated protests. But, even if the complainants had not protested, their acquiescence in ordinances establishing rates prior to the year 1896 would not be acquiescence in the ordinance of that year, for the obvious reason that the last-named ordinance made a greater reduction of rates than any previous ordinance. Without reference, however, to the facts that the ordinances of 1896 and 1897 made greater reductions than had been made in previous ordinances, it may be stated broadly that acquiescence in an ordinance passed one year cannot be acquiescence in an ordinance passed the succeeding year. The ordinances passed consecutively through a series of years, beginning, for instance, with 1880, and extending down to 1889, were not one continuous act infringing complainants' rights, but each ordinance was a separate and distinct infringement, and therefore acquiescence in one does not estop the complainants from assailing another.
5. Defendants further contend that if the limitation in the contract of July 22, 1868, upon the power of the city to fix water rates, be valid, the ordinance of 1897 is void upon its face, and does not throw any cloud upon complainants' rights under said contract, nor expose their property to forfeiture, and therefore complainants have adequate remedies at law, by actions for collections of water rates; citing Water Works v. Bartlett, 16 Fed. 615; Alpers v. City and County of San Francisco, 32 Fed. 503; and Murphy v. East Portland, 42 Fed. 308. This contention is erroneous, in its assumption that the ordinance referred to is void upon its face, and, besides, is fully answered by the decision on demurrer in the case of Santa Ana Water Co. v. Town of San Buenaventura, supra. That case, so far as concerns the question of equitable jurisdiction, is in all essential respects similar to the case at bar. This is not true, however, of any of the three cases cited by defendants in this connection. Moreover, two of said cases (Alpers v. City and County of San Francisco, supra, and Murphy v. East Portland, supra), so far from supporting, are, in one respect, against, defendants' contention. They hold, it is true, that the judiciary will not restrain the passage by a municipal corporation of a proposed ordinance upon a matter within the legislative discretion of such corporation, but they at the same time expressly recognize the competency of the courts, after the passage of such an ordinance, to annul or arrest its enforcement if it be uncon. stitutional. The case mainly relied on by defendants, however, is that of Water Works v. Bartlett, supra, in which the court held that the proposed ordinance, whose adoption was sought to be restrained, if void at all, was void on its face, and that, because everybody is presumed to know the law, no injury could result therefrom. The very essence of the rule there enunciated by Judge Sawyer is that the facts which nullify the ordinance must appear from its inspection; the theory being that since the facts appear upon the face of the ordinance, and everybody is presumed to know the law applicable to such facts, the ordinance is a procla. mation of its own nullity, and therefore cannot, in contemplation of law, be productive of harm. Thus, it will be seen that the rule is extremely technical; and Judge Sawyer himself, while enforcing it, as he in effect says, under the constraint of precedeuts, freely criticises its severity. In order to justify the application of such a rule, every requirement of it should be fully met. The reason why the ordinance in Water Works v. Bartlett, supra, if void at all, would have been void upon its face, was that the alleged contractual rights which it attempted to devest were granted by an act of the legislature of California (that of April 22, 1858), which act, without pleading or proof, was within the court's knowledge. In the case at bar, however, the ordinance, upon its face, is valid; and its invalidity appears only when considered in connection with the contract of July 22, 1868, and evidence showing what the water rates were at that date. While the court takes judicial notice of the ratifying act of April 2, 1870, still, since the provisions of the contract of July 22, 1868, are not embodied in said act, I am not sure that said provisions are matters of judicial knowledge, although such seems to be the ruling of the court (one of the justices dissenting) in Brady v. Page, 59 Cal. 52. Conceding, however, that the court will take judicial notice of all the provisions of said contract, still the one in question simply provides that water rates shall not be reduced below the rates then charged without indicating what those rates were; and therefore the invalidity of the ordinance appears, not upon its face, but only in connection with extraneous evidence of what the rates were in July, 1868, and for this reason complainants have adduced that evidence in the present case.
Defendants, in one of their briefs filed on demurrer, discussing the branch of the case now under consideration, say:
“The position of complainants' counsel seems to be that, merely because they can contemplate the possibility that they are intended to be included within the provisions of the ordinances which are attacked here, they can obtain the declaration of this court that the acts of the council are void, irrespective of the question whether anything is ever done to infringe their rights of property or not. In other words, they claim that they are entitled to have the theoretical question of law, concerning the validity of their contract and the invalidity of the ordinance in question, determined by this court merely for their own satisfaction, and without showing that any irreparable damage will ensue if the contract is valid, and the ordinances are void. If the contract is void, and the ordinances are valid, the complainants have no equity; and if, on the other hand, the contract is valid, and the ordinances are vold, then no damage can result to complainants, in contemplation of law, as the city is not doing or attempting to do anything that will in any way interfere with the property of complainants."
These comments do not correctly present the situation as disclosed by the pleadings and proofs. Under the circumstances of this case, the ordinance itself is an infringement of complainanta' property rights, because it hinders them in the collection of that compensation, to which they are entitled under the contract of 1868; and it is idle to say that relief cannot be had in equity because the power and duty of the city ended with the passage of the ordinance, and no effort is now being made by the city for its enforcement. The ordinance, by reason of the severe pains and penalties which apparently fortify it, is daily, hourly, and momentarily enforcing itself. The defendants must either submit to the terms of the ordinance, or incur unusually onerous expenditures. It is reasonably certain that if, with the ordinance standing, they were to undertake the collection of rates in excess of those prescribed in the ordinance, they would be resisted at every point by the consumers of water, and thus be driven to innumer. able actions at law. Besides, should they, in any instance, suc. ceed in collecting without an action a higher rate than the ordi. nance prescribes, it is equally certain that they would thereby bring upon themselves protracted and heavy litigation, having for its object forfeiture of their entire system of works. Surely these injuries are irreparable, and actions at law, so far from being adequate to the exigencies of the situation, are, as complainants, in their brief, forcibly put it, mere mockeries of a remedy.
Defendants further suggest that the equitable relief prayed for by the complainants ought not to be granted for the reason that a decree annulling the ordinance of 1897 could not become final until affirmed on appeal by a court of last resort, and that before this could take place the year for which the ordinance was passed will have expired. This suggestion, in my opinion, is without force. If the views, which I have already expressed are correct, complainants' rights under the contract of July 22, 1868, cannot be adequately protected in any other way than by an annulment of said ordinance; and the possibility or probability that the en. forcement of a decree to that effect may be postponed by an appeal until the ordinance expires of its own limitation affords no rea. son for a denial by this court of the relief, to which it finds the complainants entitled. In San Diego Water Co. v. City of San Diego, 118 Cal. 556, 50 Pac. 633, which was a suit to annul a city ordinance, the trial in the lower court was had after the expira. tion of the year covered by the ordinance; and, although the deci. sion of the supreme court in bank was not rendered until more than six years thereafter, and specially adverts to the date of the trial in the lower court, the case was sent back for a new trial.
My conclusions are that the contract of July 22, 1868, between the city of Los Angeles and the assignors of the water company, in so far as said contract provides that the city shall not reduce water rates below those charged at said date, is valid, and that the ordinance of 1897, which was passed pursuant to constitutional and legislative requirements of the state of California, does reduce water rates below the minimum so prescribed, thereby impairing the obligation of said contract, and should be annulled. A de cree conformable to this opinion will be entered.
SPEER V. BOARD OF COUNTY COM’RS OF KEARNEY COUNTY, KAN.
(Circuit Court of Appeals, Eighth Circuit. June 20, 1898.)
1. COUNTIES--ORGANIZATION POWERS OF TEMPORARY BOARD OF COMMISSION
Under Gen. St. Kan. 1889, par. 1577 et seq., providing for the organization of new counties, and authorizing the governor to appoint temporary officers, on whose qualification “the county shall be deemed to be duly organized," a temporary board of commissioners so appointed has power to audit claims for legitimate county expenses, and to issue warrants
therefor. 2. JUDGMENT-CONFORMITY TO Issues.
A general judgment for defendant, which does not clearly show that it rests solely on a plea that the action was prematurely brought, cannot be sustained by the sufficiency of that plea and of the proof under it,
where the plea in abatement is joined with pleas in bar in the same action. 3. APPEAL AND ERROR-REVIEW-QUESTION NOT PRESENTED TO Trial Court.
In an action on county warrants, a plea in abatement on the ground that the warrants were not presented to the county treasurer for payment before suit brought, which was not presented to the trial court for decision, will not be considered by an appellate court, where it does not appear
that the fallure to present the warrants was prejudicial to the county. 4. COUNTY WARRANTS_VALIDITY-EVIDENCE OF OVERISSUE.
A contention that county warrants in suit are void because issued after the limit in amount authorized by statute had been passed is not supported by proof that the warrants in suit were issued in the order the numbers they bear, and that warrants bearing lower numbers than any in suit were issued to an aggregate amount, which still left a margin
within which others might legally be issued. 5. TRIAL-DIRECTION OF VERDICT-PROVINCE OF COURT.
It is only when the evidence upon an issue is free from conflict, or so clear and convincing that all reasonable men who exercise an honest judgment upon it are compelled to reach the same conclusion, that the
court is justified in withdrawing the question from the jury. 6. COUNTIES-TEMPORARY COMMISSIONERS—EMPLOYMENT OF COUNSEL.
A temporary board of commissioners, appointed under the laws of Kansas on the organization of a new county, has power to employ attorneys to protect the interests of the county, and advise its officers,
until the election of a county attorney. 7. County WARRANTS–PRESUMPTION OF VALIDITY-EVIDENCE TO IMPEACH.
Warrants issued by a board of county commissioners having authority to allow claims against the county, in payment of claims regularly allowed, are prima facie evidence of the just indebtedness of the county; and where a warrant in suit purported to be issued in payment for the services of an attorney previously employed by the board, and was in itself reasonable in amount, the fact that other warrants, aggregating a large amount, were also issued on the same day to the same person, does not authorize the court to withdraw from the jury the question of the validity of the warrant in question, and direct a verdict on the
assumption of its invalidity. 8. SAME-SUPPORT OF Poor-POWER OF COMMISSIONERS.
Under the statutes of Kansas requiring counties to support the poor, and the boards of commissioners to levy taxes for the purpose (Gen. St. 1889, pars. 4030, 4061), neither the fact that no levy for the purpose had been made in a county newly organized, nor that the immediate care of poor persons devolved on city or township officers, will invalidate war
rants issued by the board in payment of indebtedness incurred in sup
porting the poor. 9. SAME-DEFENSES-IRREGULARITY IN ISSUANCE.
Gen. St. Kan, 1889, pars. 1659, 1661, make it unlawful for a county board to allow claims (with certain exceptions) except at a regular meeting, and that violation of the requirement by commissioners shall be a misdemeanor, punishable by fine. Held, that where warrants, regular on their face, were issued in payment of claims, the county could not defend against them in the hands of a purchaser on the ground merely that they were irregularly issued, in that the claims were allowed at a
special meeting of the board. 10. MunicipAL CORPORATIONS EVIDENCES or DEBT — ESTOPPEL TO QUESTION
A municipal corporation which, by the regularity of the execution of evidences of its debts, which is apparent upon their face, induces persons to buy them, is thereby estopped from denying their validity or effect on the ground that, in their execution or in the preliminary proceedings which warranted their execution, its officers failed to comply with some law or rule of action relative to the mere time or manner of their procedure, with which they might have complied, but which they negligently
disregarded. 11. FEDERAL COURTS — FOLLOWING STATE DECISIONS-CONSTRUCTION OF Star
Decisions of state courts as to their statutes, which affect the validity of contracts between citizens of different states which were made, or under which rights were acquired, before there was a judicial construction of the statute which seemed to authorize the contracts, are not
obligatory upon the courts of the United States. 12. SAME-EFFECT OF INVALIDITY OF STATUTE.
The question as to what effect the invalidity of a legislative act creating a township has upon the validity of warrants issued for indebtedness incurred by such township, in the hands of purchasers who are citizens of another state, is one upon which a federal court is not con
cluded by a state decision, rendered after the warrants were purchased. 13. MUNICIPAL CORPORATIONS-ESTOPPEL TO DENY CORPORATE EXISTENCE.
Where, by a legislative act, an unorganized county was attached to another county, and by existing statutes it thereby became a township of the latter county, and under such statutes was organized and assumed to act as such, without question by the state or its inhabitants until it was organized as a county, warrants issued after the county was organized, based on obligations incurred by the township, cannot be avoided in the hands of third persons to whom they were sold, on the ground that the act by which the unorganized county was attached to the older
county was unconstitutional. 14. Same-De Facto CORPORATIONS.
In such case the township was not organized under color of the unconstitutional act, but by virtue of the general statutes, and its acts were
those of a de facto township. 15. SAME-ACTING UNDER UNCONSTITUTIONAL STATUTE.
The acts of a de facto corporation under an unconstitutional law, before its invalidity is challenged in or declared by the judicial department of the government, cannot be avoided as against the interests of the public or of third parties who have acted or invested in good faith in reliance upon their validity by any ex post facto declaration or decision that the law under which it acted was void.
In Error to the Circuit Court of the United States for the District of Kansas.
Frederic D. Fuller and F. P. Lindsay (George H. Whitcomb, on brief), for plaintiff in error.