We think the follow

benefit of the city and the taxpayer? ing cases well illustrate that such is not the law: Freeport Water Co. v. Freeport City, 180 U. S. 587, 21 Sup. Ct. 493, 45 L. Ed. 679; City of Danville v. Danville Water Co., 178 Ill. 299, 53 N. E. 118, 69 Am. St. Rep. 304; Rogers Park Water Co. v. Fergus, 178 Ill. 571, 53 N. E. 363; Tampa Waterworks v. Tampa, 199 U. S. 241, 26 Sup. Ct. 23, 50 L. Ed. 170; Illinois Tr. & Svgs. Bank v. Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; Cedar Rapids Waterworks Co. v. Cedar Rapids, 118 Iowa 234, 91 N. W. 1081; Jackson Co. H. P. R. Co. v. Interstate R. Tr. Co. (C. C.), 24 Fed. 310; Moore v. City of Walla Walla (C. C.), 60 Fed. 961; Knoxville Water Co. v. Knoxville, 189 U. S. 438, 23 Sup. Ct. 531, 47 L. Ed. 887. In State v. St. Paul City Ry. Co., 78 Minn., at page 340, 81 N. W., at page 201, it is said:

"In short, while a municipality cannot impair the obligation of its contract under the guise of exercising its police power, yet it cannot surrender or barter away its police powers under the guise of making a contract."

The principles involved in this case are all thoroughly considered and discussed in the foregoing cases. While in nearly all of them some matters incorporated into the contract were held to be void on the ground that the matters were ultra vires, still, in none of them, was the entire contract held to be void and nonenforceable. This doctrine is peculiarly applicable to cases like the one at bar, where everything pertaining to the contract has been executed except the part of continuing the services contemplated by it to be rendered for a term of years. It is true that in the cases of City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143, and in Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053, the Supreme Court of Texas held that provisions in the contract giving exclusive rights to the water company invalidates the whole contract. This, however, is based upon a constitutional provision in force in the state of Texas, and the cases in which it was held did not present the peculiar facts present in

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this case and present in the cases cited by us in support of our views. It may well be that an attempt to execute a contract before its execution is entered upon or even an attempt to enter into a contract which in part only is illegal or ultra vires would, in a proper proceeding, be enjoined as an entirety. In such a case there is no part performance to be considered, and the parties may easily enter into a contract by which all objectionable parts are avoided. To declare a whole contract void, however, simply because some parts of it are ultra vires but not expressly prohibited and not contrary to good morals, and where such ultra vires parts, if disregarded, inure to the benefit of the party objecting, is quite a different matter.

It is further insisted by the plaintiffs that the ordinance should be held void upon the ground that it provides that the water user shall pay for and maintain water meters if such user desires to pay for water by meter rates rather than the flat rates; and upon the further ground that extensions of the system need be made only when such extensions return a revenue upon the cost of making them amounting to eight per cent.; and also upon the ground that, where no rates are specified in the ordinance for water, the company may establish and collect reasonable rates. These are all matters in which the plaintiffs are not now interested. No user of water is required to obtain a meter. The matter is entirely optional with him. If he demands a meter, and the company provides him with one, he suffers no injury. If, upon the other hand, the company refuses to provide one, if the law requires this of it, we can see no reason why he may not enforce his right in the courts precisely the same as he might do if the company had agreed to provide one, but, notwithstanding such promise, refused to do so. If the provision in this regard is void, then the water user cannot complain. If, upon the other hand it is valid, then again he has sustained no legal injury by its enforcement. At all events it is not a matter in issue now, and, so far as the record discloses, may never become a live issue. With regard to the extensions the same reasons apply. There is not a word of testimony that eight per cent. on the cost of making them will be an unreasonable rate for water service;

nor is there a word of evidence that extensions are contemplated nor that any will be made. Moreover, so far as this record discloses, none of the plaintiffs may ever be affected by them if made. As we understand it, the effect of the provision is that the water users along the line of extension, not the city, must pay the stipulated amount. As taxpayers the plaintiffs are therefore not directly interested, and as users of water they never may be. If, however, the rates should be unreasonable and excessive, the courts are always open to the city or the taxpayers to prevent their enforcement. On the other hand, the courts are likewise open to the company to prevent the enforcement of confiscatory rates, against it. The rate question is thus left open, and must so remain for adjustment and regulation whenever the occasion calls for it.

With respect to the rates that are left to be fixed by the company, this ground is also covered by what we have already said. The city council certainly had the power to agree upon reasonable rates. This is all the company is authorized to impose by the provision of the ordinance now under consideration. Is it a matter of substance whether the city council proposes the rates or the company does so? The real thing to be kept in mind is that the rates, whatever they are, must be fair and reasonable. To make them so, and to maintain them as such, is the special province of the city council. But how, or through what sources or means, it arrives at such a rate is not material.

A further objection urged is that the city council had no authority to surrender the option to purchase the water system which the city had under the Bothwell contract. But this, it seems to us, is not a judicial question. Whether the city council should have reserved an option to purchase the plant or not in the first instance was a matter purely discretionary with it. There was no legal duty imposed upon it to reserve such an option, and we know of no law whereby the exercise of the right could be enforced. The reservation of the right in the contract, as well as its exercise when made, were therefore matters purely of discretion vested in the city council. If discretionary in this regard, it must likewise be held discretionary

with regard to whether the option should be abandoned or not. Whether it was wise or unwise, prudent or otherwise, to do so, is not a matter for judicial review. The option had been running for over 16 years. The price fixed was the original cost, and before the plant could be purchased, even at this price, the city would have to pay $150,000 for the right to use the conduit, and thereafter pay one-half of the cost necessary to maintain it. It may well be that after such a length of time the use and wear and tear of the original plant no longer made the cost price a fair purchase price. Neither can it be said that the city did not receive ample consideration for surrendering the option. Large claims against the city were relinquished by the company, and the company now pays the city an annual license or occupation tax of $2,500. Even if the question were one for judicial review, we cannot see in what way either the city or the taxpayers are prejudiced by the surrender of the option at the price fixed. Nor can we conjecture in what way the surrender of the option can possibly affect the present ordinance or its enforcement.

The objection urged against the ordinance because the city council requires the board of education of Ogden City to pay for water used upon the lawns surrounding the school buildings from June 1st to September 15th in each year is, we think, likewise untenable. This was a matter that clearly fell within the province of the city council in readjusting the rates to be paid and in agreeing upon the quantity of water to be furnished free to the city by the company. The taxpayer has no better right to obtain water free or for less than what amounts to a reasonable compensation for the service than the company has to enforce excessive rates. There is not a word of evidence concerning the amount of water that will be required for such lawns, whether it will cost $1 or $1,000, nor that the arrangement in respect thereto is unfair or unreasonable. The entire claim is based upon the fact that under the Bothwell contract water for schoolhouse lawns was free, while under the ordinance it is not. For aught that appears from the record the change from the Bothwell contract to the present one may have been fair, just, and equitable in view of all the circumstances.

That it was so, in the absence of evidence to the contrary, we must presume. If this be assumed, as it must be, how can a taxpayer be heard to complain? Indeed, so far as the record discloses, the present arrangement, although it does require payment for one item which was free before, may still redound to the benefit of the taxpayer when the whole contract is considered. Shall one or two taxpayers, therefore, be permitted to destroy a contract that may be for the benefit of many by simply pointing to an isolated matter which, if considered alone, might possibly affect them? We think not. If the rate agreed upon with regard to the lawns is or becomes unreasonable it can, and no doubt will be adjusted. This is all the taxpayer is entitled to. The wisdom of the arrangement is not a matter for judicial review.

The last objection to be considered is one with regard to the so-called leasing to the company of the 0.98 second foot of water owned by the city. This presents a question not entirely free from difficulty. The Constitution (section 6, art 11) provides: "No municipal corporation shall directly, or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; but all such waterworks, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges: Provided, that nothing herein contained shall be construed to prevent any such municipal corporation from exchanging water rights, or sources of water supply, for other water rights or sources of water supply of equal value, and to be devoted in like manner to the public supply of its inhabitants." Has either the letter or spirit of this provision been invaded by the city in dealing with the water mentioned in the ordinance? It is quite clear that the city legally may exchange the quantity of water mentioned for a like quantity with any person or corporation. If it could effect such an exchange for all time, could it not do so for a limited time? The right to do the latter is necessarily included in the former. Now, what is it that the