is usually in the nature of an exclusive franchise ing the sole right to construct and operate the neces for obtaining and distributing a supply of water.117 will be considered at length under that chapter relat trol and regulation of the streets of a municipality be said here that the validity of such contracts, lic chises has been attacked upon several grounds, nan ing that principle of law preventing public officers contracts running through a period of years and straining the powers of their successors1174 and ma tract extend beyond the immediate term of office cial.1175 The greater weight of authority based upo table and legal reasons is to the effect that such to be regarded as contracts and therefore protecte vision of the Federal constitution prohibiting any st ing a law impairing the obligation of a contract.' trine holds without question where the contract h in good faith and the franchise secured upon rea and conditions from the standpoint of both parti consideration the necessary charge, original invest contingencies and uncertainties of municipal growth 1173 New Orleans Waterworks Co. v. Rivers, 115 U. S. 674; St. Tammany Waterworks Co. v. New Orleans Waterworks Co., 120 U. S. 64; Atlantic City Waterworks Co. v. Atlantic City, 39 N. J. Eq. (12 Stew.) 367. proper construction of the contract al limiting the right regulate water rates best to determine t fore passing upon said clause. The c 1174 City of Brenham v. Brenham fendants is that sa Water Co., 67 Tex. 542. exclusively to a rig § 467. Cost and manner of payment. A system of public waterworks can be divided into that part which has for its purpose the securing and the maintenance of a supply, and again into that part consisting of the mains, hydrants and other facilities of a similar character used in the distribution of the supply, either for its own public use, that of private consumers, or both. The expense of the construction of the plant may, in respect to this division, be legally met from twosources. The cost of that part of the system which has for its purpose the distribution of the water can be and is generally paid by an assessment upon property benefited; 1178 the construction of water mains, hydrants and service pipes being considered in the nature of local improvements and therefore to be paid in the manner usually provided for the construction of such improvements.1179 On the other hand, that part of the system pose of making repairs. Springfield Water Com'rs v. Conklin, 113 I. 340; McChesney v. City of Chicago, 152 Ill. 543; Hughes v. City of Momence, 163 Ill. 535; Blades v. Detroit Water Com'rs, 122 Mich. 366; Turner v. Hand County, 11 S. D. 348; Smith v. City of Seattle, 25 Wash. 300. etc. The use of the word 'reserve' the creation of a fund for the purshows that the parties were contracting, not with reference to a right which it was supposed the lessees were granting to the city but with reference to a right or power which they assumed the city already possessed. The parties manifestly intended by the clause now under consideration that the lessees should have a right to the minimum rates prescribed, namely, the rates that were then charged; and, if the city was authorized to make such an agreement, neither it nor the legislature of the state could thereafter lawfully reduce the rates below the minimum so agreed upon." 1178 Parsons v. District of Columbia, 170 U. S. 45. A local assessment in excess of the actual cost of the making of the improvement in this case, the laying of water mains is not invalid when it has for its purpose not only the payment of the original cost but also 1179 See, also, authorities cited in preceding note; District of Columbia v. Burgdorf, 6 App. D. C. 465; Parsons v. District of Columbia, 170 U. S. 45; Crane v. Siloam Springs, 67 Ark. 30; Warren v. City of Chicago, 118 Ill. 329, 9 N. E. 883; People v. Sherman, 83 Ill. 165; Hughes v. City of Momence, 163 Ill. 535. Hewes v. Glos, 170 Ill. 436. A general system of waterworks is not a local improvement within the meaning of a statute authorizing the construction of local improvements by the levy of special assessments. An assessment for such purpose is void. The rule of collateral attack. which has for its object the accumulation and preservation of the may, however, apply to sustain the of waterworks. Palmer v. City of validity of such proceedings. Myers v. City of Chicago, 196 Ill. 591; City of Lemont v. Jenks, 197 Ill. 363. The excess of the cost of a water supply over the amount authorized by law to be expended for such purposes, cannot be provided for by a local assessment. Creston Waterworks Co. v. City of Creston, 101 Iowa, 687; City of Louisville v. Osborne, 73 Ky. (10 Bush) 226. State v. Robert P. Lewis Co., 72 Minn. 87, 42 L. R. A. 639. See, also, 82 Minn. 390, 53 L. R. A. 421, reversing 72 Minn. 87, 42 L. R. A. 639, under the authority of Norwood v. Baker, 172 U. S. 269. A re-argument was granted and on page 402 of the same volume the court reverses its former opinion (p. 390) and reverts to the ruling in 72 Minn. 87, 42 L. R. A. 639, following French v. Barber Asphalt Pav. Co., 181 U. S. 324. Chief Justice Start concurs in the result, "on the ground that the case is ruled by State v. Robert P. Lewis Co., 72 Minn. 87, 42 L. R. A. 639, and Parsons v. District of Columbia, 170 U. S. 45." State v. Pillsbury, 82 Minn. 359; Dasey v. Skinner, 57 Hun, 593, 11 N. Y. Supp, 821; Smith v. City of Seattle, 25 Wash. 300; Gleason v. Waukesha County, 103 Wis. 225. But see State v. City of St. Louis, 169 Mo. 31, 68 S. W. 900. See, also, Stehmeyer v. City of Charleston, 53 S. C. 259, which holds that a system of special assessments is invalid when levied upon property abutting on the streets through which water mains are laid for the purpose of paying bonds issued in payment of the cost of construction Danville, 154 Ill. 156. A special assessment cannot be levied against lots for the payment of the cost of lateral service water pipes. The levy of water taxes as a local assessment on the frontage basis if conditions and circumstances justify it will be upheld. Jones v. Detroit Water Com'rs, 34 Mich. 273; State v. Robert P. Lewis Co., 72 Minn. 87, 42 L. R. A. 639. This decision was reversed in 82 Minn. 390, 53 L. R. A. 421, but on the authority of French v. Barber Asphalt Pav. Co., 181 U. S. 324, the opinion on page 390 was itself reversed and the ruling in 72 Minn. 87, 42 L. R. A. 639, sustained. But see Blades v. Detroit Water Com'rs, 122 Mich. 366; Cook Farm Co. v. City of Detroit, 124 Mich. 426; Tenbrook v. City of Philadelphia, 7 Phila. (Pa.) 105; City of Allentown v. Adams (Pa.) 8 Atl. 430. Farm land cannot be assessed according to the front foot rule for the purpose of laying a water pipe. Some cases sustain the validity of a water assessment against vacant property. Dasey v. Skinner, 57 Hun, 593, 11 N. Y. Supp. 821. "The emergencies intended to be met, and the security to all the village inhabitants to be provided for by a common water supply, create other burdens of legitimate charge beyond that incident to its actual use for domestic purposes. One object is the protection of the life and property of each individual living within the village limits and having a right to call for the protection it affords in the hour of peril. While it may be true that supply should be paid from the general funds.1180 The decision of the Federal court in the Ottumwa case is unquestionably the correct one, as Judge Lochren in the opinion well said: "The language of this section (referring to section 3, art. 11, Iowa a resident owner of buildings within the corporate limits may not actually appropriate the water provided by drawing it from a faucet in his living room, still it does not follow he should, therefore, be freed from the expense of the maintenance of the system. The protection it furnishes in case of fire, and which he, as a resident, has the right, when the emergency demands, to invoke, is of greater benefit than the simple daily use for household purposes." Batterman v. City of New York, 65 App. Div. 576, 73 N. Y. Supp. 44; Allen v. Drew, 44 Vt. 174; Richmond & A. R. Co. v. City of Lynchburg, 81 Va. 473. But where the levy of a water tax is regarded as a local assessment, the majority of the cases hold that an arbitrary assessment according to frontage or without regard to benefits is invalid and cannot be justified even as one case suggested "as a proper exercise of the police power"-this line of cases does not sustain the validity of water taxes or assessments levied upon vacant property. Vreeland v. Jersey City, 43 N. J. Law, 135, affirmed 43 N. J. Law, 638. Remsen v. Wheeler, 105 N. Y. 573; In re Union College, 129 N. Y. 308; In re Flower, 129 N. Y. 643; Stehmeyer v. City of Charleston, 53 S. C. 259. 1180 City of Ottumwa v. City Water Supply Co. (C. C. A.) 119 Fed. 315, 59 L. R. A. 604, deciding contrary to the opinion rendered in Swanson v. City of Ottumwa, 118 Iowa, 161, 91 N. W. 1048, 59 L. R. A. 620. A discussion of this case will be found in § 461, ante, with quotations from the opinion. Frederick v. City of Augusta, 5 Ga. 561; Gold v. City of Peoria, 65 Ill. App. 602. "The assumption of a municipal debt by a water company, and its promise to pay the same, does not extinguish the debt as a liability against the city. That can be accomplished only by the holders of the debt accepting the promise of the water company to pay, agreeing to release the municipality." Culbertson v. City of Fulton, 127 Ill. 30; Village of Morgan Park v. Wiswall, 155 Ill. 262; Village of Blue Island v. Eames, 155 Ill. 398; Hughes v. City of Momence, 163 I11. 535; Youngerman v. Murphy, 107 Iowa, 686. Hall v. City of Cedar Rapids, 115 Iowa, 199. An arrangement for the payment of a water plant by a series of annual instalments technically termed "hydrant rentals" sufficient in amount to pay for water used and also at the end of the time the cost of the construction of the plant is a violation of the constitutional provision relative to the incurring of indebtedSavidge v. Village of Spring Lake, 112 Mich. 91, 70 N. W. 425; Trump Mfg. Co. v. Buchanan, 116 Mich. 113; State v. Babcock, 20 Neb. 522; Conger v. Inhabitants of Summit Tp., 52 N. J. Law, 483; Brown v. City of Cory, 175 Pa. 528. The fact that a water plant is to be paid for in instalments does not relieve the contract from a consti ness. * Const.) is plain and simple and its meaning is unmistakable; the incurring of indebtedness beyond the amount limited is absolutely and unqualifiedly prohibited no matter what the pretext or circumstances or the form which the indebtedness is made to assume. It curbs equally the power of the legislature, the officials and the people themselves; and was designed to protect the tax payers from the folly and improvidence of either or of all combined. The proposed mortgage of the waterworks to secure the payment of the bonds emphasizes the fact that the city is indebted in the amount of the bonds by such pledge of the city's property for their payment. A mortgage which is to be discharged by the payment of money secures an indebtedness and cannot exist without the existence of a debt. Even if the creditor's remedy is limited by the contract, to the property of the debtor which is covered by the mortgage, the relation of the debtor and creditor exists and the debtor pays the debt when his mortgaged property is converted into money to discharge it just as certainly as if in the absence of any mortgage his same property were sold under execution for the same purpose. The fact that these proposed bonds are to bear interest at 41⁄2 per cent. cannot be overlooked. Why should the city pay interestthat constant, distinguishing, most irksome and disagreeable feature of indebtedness-upon money which it does not owe; money which belonged to it before it was received being only its own fixed revenues gotten hold of for present use a little in advance by 'anticipation' and in no wise by incurring indebtedness?'' In tutional prohibition against the incurring of indebtedness in excess of a certain limit. Turner v. Hand County, 11 S. D. 348; Austin v. McCall (Tex.) 68 S. W. 791. The purchase of a water plant by a city creates a debt with in the meaning of the constitutional provision although the transaction is a compromise of a claim against the city in favor of the water company. City of Austin v. Nalle, 85 Tex. 520; Earles v. Wells, 94 Wis. 285. The constitutional limitation of indebtedness cannot be effected di rectly or indirectly, in this case, stat |