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an unsuccessful venture, or to fix irrigation prives the customers of their property withrates.

out due process of law. Madison v. Madison Gas & Electric Co. Black, Const. Law, 3d ed. SS 281-283, pp. 129 Wis. 249, 8 L.R.A. (N.S.) 529, 116 Am. 723, 728, 730, 731; 2 Wyman, Public ServSt. Rep. 944, 108 N. W. 65, 9 Ann. Cas. ice Corp. § 1421, p. 1251; Birmingham 819; Re Kearney Water & Electric Powers Waterworks Co. v. Birmingham, 211 Fed.

497. Co. 97 Neb. 139, 149 N. W. 363; Cote v. Highland Park, 173 Mich. 201, 139 N. W.

The control of the canal has passed from 69; Clague v. Tri-State Land Co. 84 Neb. the ditch company to its customers.

La Junta & L. Canal Co. v. Hess, 6 Colo. 499, 133 Am. St. Rep. 637, 121 N. W. 570; App, 497, 42 Pac. 50; Blakely v. Ft. Lyon Price v. Riverside Land & Irrigating Co. Canal Co. 31 Colo. 224, 73 Pac. 249; Wyatt 56 Cal. 431; Jack v. Grangeville, 9 Idaho, v. Larimer & W. Irrig. Co. 18 Colo. 298, 291, 74 Pac. 969; 3 Kinney, Irrigation, 36 Am. St. Rep. 280, 33 Pac. 144, 1 Colo. § 1381, p. 2499.

App. 480, 29 Pac. 906; 3 Kinney, IrrigaThe enforcement of the order impairs the i tion, 2d ed. § 1517, p. 2732; Windsor Reseroblig? ns of the contract between the voir & Canal Co. v. Lake Supply Ditch Co. ditch company and its customers, and de- '44 Colo. 214, 98 Pac. 729; Union Mill & eral Supreme Court that notwithstanding Nor can the irrigation company defend the declaration in the Constitution of Cali- such an action on the ground that the comfornia that water appropriated for sale is plainant has contracted with it for a higher appropriated to a public use, the water rate than that fixed by the board. Ibid. rights of an irrigation company acquired In an action between the same parties by prescription or by purchase should be in- for damages on account of the irrigation cluded in the valuation of its property in company's failure to supply water, it was determining whether the rates fixed by the held in Northern Colorado Irrig. Co. v. board of supervisors would yield the 6 per Pouppirt, 22 Colo. App. 563, 127 Pac. 125, cent return upon the value of the property that the order of the board, fixing the maxito which the company was entitled under mum water rate at $1 per acre, was not the California statute.

void for uncertainty in not prescribing the On a motion for a preliminary injunction amount of water which the company should in the above case, 163 Fed. 567, the rule be required to furnish to any consumer, was laid down that if a deduction is to be where the statute provided that persons who made from the value of the irrigation plant had purchased and used water for irrigaon account of deterioration, in fixing its tion from any ditch, and who had not value for the purpose of determining the ceased to do so for the purpose of procuring rate, an allowance should be made for the water from some other source of supply, deduction and added to the annual income should have a right to continue to purso to enable the irrigation company to re

chase water to the same amount on paying new and reconstruct the plant and thereby the rate fixed by the county commissioners, preserve its integrity.

and the amount of water to which the plainIn considering the application for a pre- tiff was entitled was determinable from liminary injunction, the court in San previous contract and recognized usage. Joaquin & K. River Canal & Irrig. Co. v. In Northern Colorado Irrig. Co. v. PoupStanislaus County, supra, indicated that, pirt, supra, the court said there was no as regards the relative rates paid for water question that under the Constitution, statby consumers in different counties at vari.utes, and decisions of that state the irrigaous distances from the head works of the tion company was required to carry and canal, a rate to the consumers in the coun- deliver water to the class of consumers ty farthest from the head works less than named in the certificate of its incorporation that in a county nearer thereto would be for a reasonable maximum charge, to be unjustifiable, since the service to the con- fixed by the board of county commissioners, sumers in the former county is of greater and that when such rate had been fixed it value, owing to evaporation and seepage of was binding upon the company until relief water in the canal.

had been afforded in some appropriate proAlso in San Joaquin & K. River Canal & ceedings; also that the company could not Irrig. Co. v. Stanislaus County, 191 Fed. exact a bonus as a condition precedent of 898, a motion for a preliminary injunction, the right of a consumer to procure water. in an action between the same parties in- Water rates to be charged by an irrigavolving other water rates, was denied. tion company, fixed by a board of county

An order of the board of county commis commissioners, as provided by the Constisioners fixing the rate at which an irriga- tution of Colorado, cannot be attacked coltion company, a party to the proceeding, laterally as unreasonable in an action by shall furnish water to consumers, cannot the company to recover an excess alleged to be collaterally attacked in a mandamus ac- be due for a supply of water. McCracken tion brought by a consumer to compel the v. Montezuma Water & Land Co. 25 Colo. company to deliver water at the rate fixed. App. 280, 137 Pac. 903. Northern Colorado Irrig. Co. v. Pouppirt, Under the Constitution of Colorado nei47 Colo. 490, 108 Pac. 23.

ther the legislature nor any court has power Min. Co. v. Dangberg, 81 Fed. 73; Broad, Com. v. Bailey, 81 Ky. 395; Butte v. Palmoor Dairy & Live Stock Co. v. Brookside trovich, 30 Mont. 18, 104 Am. St. Rep. 698, Water & Improv. Co. 24 Colo. 541, 52 Pac. 75 Pac. 521; Golden Canal Co. v. Bright, 792.

8 Colo. 144, 6 Pac. 142; 34 Cyc. 1029. The regulation of a public service cor- The State Railway Commission had jurisporation is only to prevent it exacting un. diction and authority to regulate and fix reasonable and unjust rates, not to better the rates. The fixing and regulation of for it its unthrifty contracts.

water rates is a governmental function, one Spring Valley Waterworks v. Schottler, of the police powers of the state, and is not 110 U. S. 347, 28 L. ed. 173, 4 Sup. Ct. Rep. suspended, except by express provision of 48; 4 McQuillin, Mun. Corp. § 1725, p. the law. At the time the contracts were 3699; Adinolfi v. Hazlett, 242 Pa. 25, 48 entered into the parties joining in the conL.R.A. (N.S.) 855, 88 Atl. 869; Elliott, Priv. tracts were bound to know that the rates Corp. 4th ed. § 91a, p. 97.

were subject to legislative control. Mr. C. E. Eldred, for appellee:

White v. Farmers' Highline Canal & The power given the Railway Commis. Reservoir Co. 22 Colo. 191, 31 L.R.A. 828, sion to “regulate” rates includes the "fix- 43 Pac. 1028; Brummitt v. Ogden Watering" of rates.

works Co. 33 Utah, 289, 93 Pac. 828 ; State ex rel. Hamilton County v. Ream, Omaha Water Co. v. Omaha, 12 L.R.A. 16 Neb. 681, 21 N. W. 398; Higgins v. (N.S.) 736, 77 C. C. A. 267, 147 Fed. 1; Mitchell County, 6 Kan. App. 314, 51 Pac. Stanislaus County v. San Joaquin & K. 72; Dougherty v. Austin, 94 Cal. 601, 16 River Canal & Irrig. Co. 192 U. S. 201, 48 L.R.A. 161, 28 Pac. 834, 29 Pac. 1092; 1 L. ed. 406, 24 Sup. Ct. Rep. 241; Owensboro to fix a maximum rate to be charged by an And the court in Boise City Irrig. & Land irrigation company for the delivery of Co. v. Clarke, supra, approved the rule that water; but such power is vested in the if the irrigation plant was built for a boards of county commissioners, to be exer- larger area than it found itself able to supcised on the petition of an interested party. ply, or if as yet it did not have the cusIbid.

tomers contemplated, it was not necessary Under the Constitution and statutes of to fix the rate so high that a reasonable reIdaho, declaring that the use of all waters turn would be paid upon the entire investappropriated for sale or distribution is a ment. public use, subject to the control and regu- A consumer, it was held in Jackson y. lation of the state, that the right to collect Indian Creek Reservoir Ditch & Irrig. Co. tolls for compensation for the use of water 16 Idaho, 430, 101 Pac. 814, may make a supplied to any county or its inhabitants valid contract as to the amount of mainis a franchise and cannot be exercised except tenance charge to be paid an irrigation in the manner prescribed by law, and au- company, under the Constitution of Idaho, thorizing the county commissioners to pre providing that the legislature shall desigscribe maximum rates for water delivered nate the manner in which reasonable maxifor irrigation purposes, an irrigation com- mum rates may be established for the use pany cannot obtain a decree canceling a rate of water sold or distributed for any useful fixed by the commissioners, on the ground or beneficial purpose, and a statute prothat it is too low and does not yield it just viding that any person who may contract compensation, unless the rate would be too to deliver a certain quantity of water to any low as applied to the total number of acres party shall deliver that same, and that the irrigated; in other words, it cannot supply amount to be paid for such delivery, "which part of its consumers with water free or amount may be fixed by contract, or may at an inadequate rate under contract, and be as provided by law,” is a first lien upon secure the cancelation of the prescribed the land irrigated. And the court said that rate on the ground that, if such rate is even if the legislature had not expressly applied to the balance the irrigable land, provided that the amount to be paid for its total income will not be just compensa- water might be fixed by contract, the right tion. Boise City Irrig. & Land Co. v. so to contract existed, there being no conClarke, 65 C. C. A. 399, 131 Fed. 415. stitutional or statutory inhibition against

It was held in Boise City Irrig. & Land such contracts. Co. v. Clarke, supra, that although the And it was held also in Jackson v. Inyear for which the board of county commis- dian Creek Reservoir Ditch & Irrig. Co. sioners had fixed a water rate had expired, supra, that the consumer was not deprived the court would entertain and decide an ap- of the right to contract as to water rates peal from a decree upholding the rate, part- by reason of the fact that the legislature ly because a rate once fixed continued in had provided a manner by which the rate force until changed as provided by law, and to be charged for the use of water might partly because of the necessity or pro- be established upon application to the priety of deciding questions of law presented board of county commissioners. which might serve to guide the board when

R. E. H. again called upon to act in the matter of fixing the rates.

v. Owensboro Waterworks Co. 191 U. S. / portion of this amount in a reserve fund for 358, 48 L. ed. 217, 24 Sup. Ct. Rep. 82; State use in emergencies. It was also ordered ex rel. Webster v. Superior Ct. 67 Wash. 37, that a new set of books be opened containL.R.A.1915C, 287, 120 Pac. 861, Ann. Cas. ing certain specified entries, and that a 1913D, 78; Tampa Waterworks Co. v. Tam- daily record be kept during the irrigation pa, 199 U. S. 241, 50 L. ed. 172, 26 Sup. season of the flow in the main canal and Ct. Rep. 23; Neb. Const. art. 1, § 26; Wild the distribution of water to the users. loughby, Const. § 502; Black, Const. Law, From this order respondents have appealed. 3d ed. SS 287-291, p. 742; 4 McQuillin, Mun. The principal contention of respondents Corp. § 1377, p. 3714; Dawson v. Dawson is that the Commission has no authority to Teleph, Co. 137 Ga. 62, 72 S. E. 508; Wiel, make an order releasing complainant from Water Rights, 3d ed. p. 1321; Kinney, the provisions of the contracts; that the orIrrigation, 2d ed. p. 1382; Osborne v. San der deprives the defendants of their propDiego Land & Town Co. 178 U. S. 22, 44 erty without due process of law, and im. L. ed. 961, 20 Sup. Ct. Rep. 860; Portland pairs the obligation of their contracts, R. Light & P. Co. v. Portland, 210 Fed. contrary to the provisions of the Consti668; Manitowoc v. Manitowoc & N. Trac- tution of Nebraska, the Constitution of the tion Co. 145 Wis. 13, 140 Am. St. Rep. United States, and of the 14th Amendment 1056, 129 N. W. 930; Home Teleph. & Teleg. thereof. It is also said that the order is Co. v, Los Angeles, 155 Fed. 554.

not supported by the evidence, and that

under the covenants in the water deeds the Letton, J., delivered the opinion of the title to the canal was and should be in its court:

customers, since the whole amount of availA complaint was filed by the McCook able water rights had been sold. These Irrigation & Water Power Company before contentions will be considered in different the State Railway Commission against 18 order than presented. holders of water-right contracts under its 1. The evidence conclusively shows that canal, setting forth that the annual main the rate of $1 per acre per annum is insuffitenance fee due from water-right holders to cient to maintain the canal, even after de. the company under the contracts was $1 per ducting certain charges criticized by the acre per annum; that complainant has not respondents, and that unless the complainsufficient income therefrom to enable it to ant is allowed to increase the rate, it will keep up and properly maintain the canal; be impossible to maintain the canal in a that an increased charge is necessary, and condition so that it will deliver water. The that a charge of $2 per acre would be a rea- computations made by respondents and set sonable rate, which it is entitled to receive. forth in the reply brief, showing that the The prayer is that a hearing may be had income is more than sufficient to meet exand complainant be authorized to charge penses, are not accurate, since they include consumers an annual maintenance fee of $2 hundreds of dollars received from the sale per acre, to be made to apply for water fur- of water rights. Such sums are no part of nished for the year 1913. The respondents maintenance charges. The plan of the corfiled an answer denying the jurisdiction of poration, expressed in its deeds or contracts the Railway Commission of the subject. with holders of water rights, provides that matter of the complaint, which it is said is when the water rights to the capacity of the within the jurisdiction of the courts. The canal have been sold and paid for, the canal answer also pleads the failure of complain becomes, by certain acts of its officers thereant to furnish suflicient water in the irriga in specified, the property of the water-right tion season of 1913; that it carelessly and holders. Under such provision the money negligently allowed the canal to become paid for a water right represents pro tanto filled with weeds and débris, and to be ob- a portion of the capital of the corporation. structed, so that it failed to carry the When the rights have all been sold, the title amount of water to which the respondents' to the canal passes, but the title to the lands were entitled. It also pleads a num- money remains in the corporation. It may ber of acts of misconduct on the part of not therefore be taken from the corporacertain directors of the corporation whereby tion without its consent to be used for mainit is alleged they obtained special privileges tenance. This is said, assuming, of course, and advantages, and charges general mis- | that the prices paid have been fair and reamanagement. A hearing was had, and an sonable, and not padded to such an extent order made allowing the complainant to in- that it is seen that at least a portion of the crease its maintenance charges to $2 per cost of maintenance should be met from the acre per annum. The company was also excess charge. In this case, however, no required to set apart each year $4,500 for such condition appears as to any of the the operation, maintenance, and betterment respondents. Under the order made by the of the ditch, and to place any unexpended 'Railway Commission complainant is not allowed to squander or dissipate any sum | the water. Const. art. 5, § 19a, Rev. Stat. realized from the increase in rates in ex- 1913, SS 3382-3384. cess of that actually expended each year The question involved is an important for the maintenance of the ditch. Its books one, and one as to which there has been are subject to inspection, and if it should some difference of opinion; but we believe prove when further repairs have been made the larger and broader view, that most conto the canal, or a more specific and detailed sistent with the spirit in which the law of system of bookkeeping used, that the rate irrigation should be administered, and that now fixed is excessive, it can be reduced to which courts are more and more tending, upon proper application being made to that is that any contracts entered into between body.

the irrigation company and consumers un2. It is strongly insisted that the evidence der the ditch, with reference to the annual shows that all the available water which rates which should be charged for the use could be furnished has been disposed of un- of water, were entered into with the law der existing water-right contracts; that for forming a part of the contract, and were that reason the consumers own the canal, subject to legislative control. Tampa Waterand the complainant as a stock corporation works Co. v. Tampa, 199 U S 241, 50 L. has no interest in the property. This ques. ed. 170, 26 Sup. Ct. Rep. 23; Spring Valley tion involves the ownership of the property, Waterworks Co. v. Schottler, 110 U. S. 347, and is one which the Railway Commission 28 L. ed. 173, 4 Sup. Ct. Rep. 48; Manihas no jurisdiction to hear or determine. If towoc v. Manitowoc & N. Traction Co. 145 the facts warrant, proper relief may be af- Wis. 13, 140 Am. St. Rep. 1056, 129 X. W. forded by appropriate proceedings in a court 925; Stanislaus County v. San Joaquin & of equity.

K. River Canal & Irrig. Co. 192 U. S. 201, 3. Respondents insist that if the exist- 48 L. ed. 406, 24 Sup. Ct. Rep. 241; White ing rate is unsatisfactory to the company, v. Farmers' Highline Canal & Reservoir ('o. it cannot complain because it was com- 22 Colo. 191, 31 L.R.A. 828, 43 Pac. 1028. petent, and under no restriction when it | An interesting discussion of this topic with fixed the rate, and that regulation can only cases cited may be found in 2 Wiel, Water apply on the complaint of water users when Rights, 3d ed. 88 1315-1321. they show the agreed rate is unreasonable. If the canal company cannot receive suffiThis involves the constitutional questions cient money to keep the canal intact, the raised.

water supply must fail. The consumers will The crucial question is whether the rate be direct sufferers from such a condition of of $1 per acre per year fixed in the contract affairs, but the state, which has granted is a property right with which the state, the franchise to cross the lands of others, in the exercise of its regulatory power, and has allowed the appropriation of publie cannot interfere. At the time the canal waters for the advancement of agriculture was built the practice of irrigation in this and the building up of prosperous agriculstate was in its infancy; but from the very tural communities, would also be injuriousfirst the legislature recognized the publicly affected by the failure of the enterprise. interest in the use of water from the It is also worthy of consideration that if streams of the state for irrigation purposes. these contract holders are entitled to be It placed canal companies in the same class supplied at the rate of $1 per acre, subseas railways and other common carriers, and quent purchasers of water rights, if any, it has uniformly been considered that their may be compelled to pay excessive rates rates were subject to regulation and con- in order to provide the necessary funds for trol. Cummings v. Hyatt, 54 Veb. 35, 74 maintenance. If the company should at. N. W. 411; Castle Rock Irrig. Canal & tempt to exact such rates, the question Water Power Co. v. Jurisch, 67 Neb. 377, might arise whether such discriminatory 93 N. W. 690; Farmers' Canal Co. v. Frank, charges could be upheld. 72 Neb. 136, 100 N. W. 286; Fenton v. Tri. Osborne v. San Diego Land & Town Co. State Land Co. 89 Neb. 479, 192, 131 N. 178 U. S. 22, 44 L. ed. 961, 20 Sup. Ct. Rep. W. 1038. At first no tribunal was provided 860, was a case brought by an irrigation which had the power to fix and establish company to settle the question whether it rates, and the only remedy the consumer had authority to increase its water rates. had was to apply to the courts to restrain | The case was tried in United States circuit unjust exactions or unreasonable charges : court and appealed to the Supreme Court but afterwards by constitutional amendment of the United States. The contract proand statute the State Railway Commission vided that the annual rate should be fixed was vested with full power and authority by the company “as allowed by law.” The to regulate and fix rates and charges so that company had for many years collected $3.50 they would be fair and equitable both to the per acre, and was now seeking to raise the consumer and to the corporation supplying 'rate to $7. The defendants claimed that

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the $3.50 rate had been fixed by contract, , of undue preferences in the sale of water under the provisions of a statute which pro- rights and of other irregularities are made. vided that until the rates "shall have been For these a remedy exists in equity, and the abrogated by such board of supervisors, as Railway Commission is not vested with the in this act provided, the actual rates estab- power to settle and adjust the property lished and collected by each of the persons, rights involved. companies, associations, and corporations The order of the Commissioners is reanow furnishing, or that shall hereinafter sonable and is affirmed. furnish, appropriated waters for sale, rental, or distribution to the inhabitants of any Rose and Sedgwick, JJ., not sitting. of the counties of this state, shall be deemed and accepted as the legally established rates Petition for rehearing denied June 5, thereof."

1915. The circuit court held that the question whether an increase to the proposed rate of $7 per acre was reasonable was not open to its decision, and that resort must first be NORTH DAKOTA SUPREME COURT. had to the board of supervisors of San Diego county, the only body with power to fix

CHARLES TURK, Respt., rates. The Supreme Court affirmed this deIn the opinion, speaking of the claim

MARTIN BENSON, Appt. that the contract rates thus established could not be altered at the desire of the (30 N. D. 200, 152 N. W. 354.) company, that they were property rights,

Abstracts and to change them would be violative of

liability of abstracter.

An abstracter is not liable for failure to constitutional rights, the court said: “The show a judgment against William J. Ridepurpose of the act rejects such view.. Its out upon search for William G. Rideout. purpose is regulation, deliberate and judicial, and periodical regulation by a selected

(Goss, J., dissents.) tribunal, and we cannot believe that the legislature intends by an absolute and per

(April 10, 1915.) emptory provision to fix rates upon the water companies unalterable by them, no

PPEAL by defendant from a judgment

A matter what change in conditions might

of the District Court for Pierce County supervene. Against rates which may be in plaintiff's favor in an action to recover come unreasonably high, the statute gives the amount of a judgment paid by plaintiff relief to consumers through petition to the which was alleged to have been erroneously board of supervisors.

Rates which may

docketed by defendant. Reversed. become unreasonably low it surely does not

The facts are stated in the opinion. intend to impose on the companies forever,

Messrs. Torsen & Wenzel for appellant. except as relief may come from the volun

Mr. Albert E. Coger, for respondent: tary justice of its customers or by a viola

It is the general rule, obtaining not only tion of the statute and appeal to the in the state of North Dakota, but generally, courts."

that the middle initial is no part of a We are aware that there are cases, in

Headnote by BURKE, J. which the point was not directly involved, which seem to indicate that if the question Note. Certainty and accuracy as to were before it the court would have taken Christian names or initials in record a contrary view to that taken here, but or index relied on as imparting conthere are at least an equal number of

structive notice. cases, better reasoned, as we view the matter, holding practically in conformity here

The early cases dealing with the question

considered in the present note are gathered with.

in the notes to Burns v. Ross, 7 L.R.A. Holding the view that the contracts were

(N.S.) 415, and Prouty v. Marshall, 25 entered into subject to the right of the L.R.A.(N.S.) 1211, which this note supplestate, in the exercise of its police power, ments. to regulate and fix reasonable rates to be Generally as to liability of title abstractcharged for the use of the water, the order er, see notes to Equitable Bldg. & L. Asso. v. of the Railway Commission does not take Bank of Commerce & T. Co. 12 L.R.A.(N.S.) property without due process of law, and 449; Stephenson v. Cone, 26 L.R.A. (N.S.) is not in violation of the Constitution of 1207; and Anderson v. Spriestersbach, 42

L.R.A. (N.S.) 176. the United States, the 14th Amendment, or

As to effect of summons or notice to perthe Constitution of the state of Nebraska. son by wrong initial, see notes to Illinois

Many complaints of mismanagement and 'C. R. Co. v. Hasenwinkle, 15 L.R.A.(N.S.)

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