referring to the decision of Swanson v. Ottumwa, the Federal court further added: "To our minds it is not persuasive and we decline to be guided by it. Its citations exhibit the unceasing attempt in that state and some others to nullify and evade wholesome constitutional limitations upon the power of municipalities to create indebtedness and thus place intolerable burdens on the tax payers; and its reasoning but adopts the ingenious but obviously untenable arguments by which such attempts have ever been supported." 1181 In some instances it is provided by law 1181 City of Ottumwa v. City Water Supply Co. (C. C. A.) 119 Fed. 315, 59 L. R. A. 604. See, also, the opinion of the Circuit Court on granting the first preliminary injunction given in full, 119 Fed. 325 et seq. "The evil that existed, and which evil was corrected by the adoption of the constitutional provision, is known by all. If not so known, one has but to read the debates of the convention of 1857. He will find that many cities and counties in Eastern Iowa-the only part inhabited to a great extent were in debt hopelessly. In some of those cities and counties the tax payers are still struggling to pay for improvements, some of which were never constructed. But all such improvements were loudly contended for by the people, as they are at the present day. And the evil was successfully checked, if the courts will but stand by the constitution. But in the case at bar the argument seems to be that the city can go in debt more than the 5 per-centum by calling it by some other name than 'debt.' It is said that the ordinance provides, and the bonds will so recite, that the money will all be obtained by a "special assessment on all the taxpayers,' and that only at the rate of two mills per year; and that, with the surplus of the five mill levy, and the profits of private consumers, make the burden not a debt, but a 'special assessment.' Ordinarily, 'special assessments' mean the taxation of abutting property, such as is done for sidewalks, paving, etc. But a special levy of two mills on the dollar on all the property within the city, some of which may be one or more miles from a water main or hydrant, is not a 'special assessment,' and calling it such does not make it so. The constitution says, 'No municipal corporation shall be allowed to become indebted in any manner, or for any purpose, more than five per centum on the last assessment,' etc. The words 'for any purpose,' seems to me to cover a system of water works, and the words 'any manner' are broad enough to cover 'a twomill levy.' If those words do not so mean, then, as I believe, they are utterly without meaning or force. If the provisions can be ridden down by a two-mill levy, then a ten or twenty mill levy per year can be authorized each year for the erection of waterworks, and a like sum for an electric plant, and then for a city hall, and then for parks, and public bath houses, and libraries, and so on, until, under the pretense urged in this case, absolute that the profits from the operation of the plant shall be applied on the original cost of the construction; such an expenditure is then not within a constitutional provision relative to the incurring of indebtedness.1182 If its cost is paid by the incurring of indebtedness, namely, the issue of bonds, these are considered as general corporate obligations. In some cases municipalities have attempted to construct waterworks through the issue of bonds and by making them a special charge upon the improvement constructed and its revenues attempted to defeat provisions of the law limiting the incurring of indebtedness.1183 The weight of authority is, however, to the effect that such obligations are to be considered as general corporate indebtedness and cannot be excluded in a determination of the amount which a public corporation may constitutionally incur. 1184 § 468. Water rentals and regulations. A municipality possessing the power to construct a water plant of its own, to supply both its wants and those of the community, unquestionably has the right to charge, usually on the basis of water used," 1185 such rentals as may be necessary to pay the cost confiscation can be authorized by tue legislature, under the guise of taxation, in one year." But see Wilson v. Trustees of Sanitary Dist. of Chicago, 133 Ill. 443, where the organization of the people residing within a municipality under another corporation or taxing district for the purpose of carrying on desired local improvements was sustained. But as said by a late author (Farnham, Waters, p. 739), "It is difficult to find language strong enough to use in condemnation of such devices; when considering them there is no wonder that justice is considered not only as blind but that it is sometimes thought to have abdicated its seat and that to obtain it people must take the matter into their own hands." See, also, Kennebec Water Dist. v. City of Waterville, 96 Me. 234. 389; Attorney General v. City of Salem, 103 Mass. 138; Alter v. City of Cincinnati, 56 Ohio St. 47, 35 L. R. A. 737; Citizens' Bank v. City of Terrell, 78 Tex. 450. Where the revenues of such a plant are subject to appropriation by a city council for other purposes, they cannot be made the basis of a debt. Allen v. Drew, 44 Vt. 174; Winston v. City of Spokane, 12 Wash. 524; Faulkner v. City of Seattle, 19 Wash. 320. But see City of Joliet v. Alexander, 194 Ill. 457. 1183 Comstock v. City of Syracuse, 5 N. Y. Supp. 874. See, also, cases cited in preceding note and under § 463, supra. 1184 Smith v. Inhabitants of Dedham, 144 Mass. 177. See authorities cited in preceding notes. 1185 Vreeland v. Jersey City, 43 N. J. Law, 135, affirmed in 43 N. J. 1182 Donahue v. Morgan, 24 Colo. Law, 638. A water tax arbitrarily of operating,118 expensive and extravagant though it may be, to meet fixed charges and to protect itself against loss through the yearly depreciation of the property,1187 to provide a fund for the imposed upon property fronting on water mains or pipes is void as against unoccupied or vacant property. See, also, as holding water rentals assessed against vacant lots invalid, In re Union College, 129 N. Y. 308; Remsen v. Wheeler, 105 N. Y. 573, and In re Flower, 55 Hun, 158, 7 N. Y. Supp. 866. 1186 Higgins v. City of San Diego, 131 Cal. 294; Park County Com'rs v. Locke, 2 Colo. App. 508, 31 Pac. 351. Such operating expenses include the wages of water commissioners. City of Detroit v. Water Com'rs of Detroit, 108 Mich. 494, 66 N. W. 377, 31 L. R. A. 463. The Detroit house of correction is not a public institution of the city of Detroit and therefore entitled to be supplied with water free of charge by the board of water commission ers. Albert v. Davis, 49 Neb. 579. Under the authority to prescribe water rents, a municipality cannot require a private consumer to purchase a water meter as a condition precedent to the use of water. Red Star Line S. S. Co. v. Jersey City, 45 N. J. Law, 246. Water rents must be, it is here held, uniform and according to the benefits received. People v. Willis, 32 App. Div. 626, 53 N. Y. Supp. 1111. The Young Mens' Christian Association is not exempt from payment of water rentals, it not coming within that provision of the charter of the city of Brooklyn which releases "the several hospitals, orphan asylums and all other charitable and beneficent corporations" from the payment of water taxes. Skaneateles WaterAbb. Corp. Vol. II — 15. works Co. v. Village of Skaneateles, 161 N. Y. 154, 46 L. R. A. 687. When the water receipts are insufficient to pay such charges and the cost of operating, property may be taxed to meet the deficiency. 1187 Jones v. Detroit Water Com'rs, 34 Mich. 273; City of Detroit v. Detroit Water Com'rs, 108 Mich. 494, 31 L. R. A. 463; Preston v. Detroit Water Com'rs, 117 Mich. 589. "The board is very properly given wide discretion in the management of the water plant. There is nothing in the record to show it has abused this discretion in fixing the rates. We think it is not accurate to speak of these water rates as taxes. All property except that which is exempt by law is subject to the payment of taxes, but the use of water is not compulsory. If the owner of property prefer to dig a well and construct a cistern instead of connecting with the system of waterworks, he, in most instances at least, would be at liberty to do so. It is true, if he is in the water district, he is entitled to the use of the water by complying with the regulations of the water board. It is also true these regulations must be reasonable; but it is not true they must be uniform, or that they must be based upon the value of the property where the water is used. "The water rates paid by consumers are in no sense taxes but are nothing more than the price paid for water as a commodity just as similar rates are payable to gas companies.' It would be manifestly inequitable to require valuable premises, where making of necessary repairs, 1188 and in addition to derive a profit from the business or aid in the construction of the works.1189 It unquestionably has the power, if the right be conceded in the first instance, to construct the water plant and supply this commodity to charge such sum as it may determine upon, reasonable or unreasonable though it may be, and without any reference to the various items named in the preceding essentials.1190 This fol from their character no water was used, to be charged with a water tax based upon values, while an adjoining piece of little value might, because of the character of its occupancy, use large quantities of water. When property has paid its proportion of the taxes growing out of fire protection and other uses in which property and the public in general have an interest, it has discharged its share of the burden." People v. Common Council of Long Island City, 76 N. Y. 20. doubtful." City Council of Charleston v. Werner, 46 S. C. 323; Stephens v. City of Spokane, 14 Wash. 298. 1190 Parsons v. District of Columbia, 170 U. S. 45; Lanning v. Osborne, 76 Fed. 319. If rates are unreasonable, it is held here that a person aggrieved may have them annulled by the court and the question again submitted to the county board of supervisors. San Diego Flume Co. v. Souther (C. C. A.) 104 Fed. 1188 Stamford Water Co. v. Stan- 706, affirming 90 Fed. 164; Fitch v. ley, 39 Hun (N. Y.) 424. 1189 Cook County v. City of Chicago, 103 Ill. 646; Wagner v. City of Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519; State v. City of Neodesha, 3 Kan. App. 319; Alter v. City of Cincinnati, 56 Ohio St. 47, 46 N. E. 69, 35 L. R. A. 737. "As to the water rent act, it is sufficient to say that the general assembly has full power to legislate upon the subject, and provide the purpose to which the water rent shall be applied; and there is no injustice in applying the water rent to aid in the construction of the waterworks, and the power to do so is certainly ample. Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the constitution. Whether this statute applies water rents City & County Sup'rs of San Francisco, 122 Cal. 285, 54 Pac. 901; Jacobs v. City & County Sup'rs of San Francisco, 100 Cal. 121; Weldin v. City of Wilmington, 3 Pen. (Del.) 472, 51 Atl. 157. Wagner v. City of Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519. Water rates need not be uniform since they are charges levied under the taxing power. Cook County v. City of Chicago, 103 Ill. 646. A commissioner of public works may be authorized by ordinance to furnish water free to a county building reasonably situ ated within its limits. Jones v. Detroit Water Com'rs, 34 Mich. 273; Preston v. Detroit Water Com'rs, 117 Mich. 589; Vreeland v. Jersey City, 43 N. J. Law, 135, affirmed 43 N. J. Law, 638. A water tax arbitrarily imposed upon prop lows necessarily from the application of the well known principle that a sovereign or any of its subordinate agencies in the exercise of a sovereign power is not answerable to the people in the exercise of that power.1191 These charges are not considered taxes within the meaning of that word as used in various state constitutions or statutes and therefore they need not be levied in such a manner as to comply with provisions for the levying of taxes.1192 Delinquent water rentals can be collected by public erty fronting on water mains or pipes is void as against unoccupied or vacant property. Dasey v. Skinner, 57 Hun, 593, 11 N. Y. Supp. 821; Silkman v. Water Com'rs of Yonkers, 152 N. Y. 327, 37 L. R. A. 827; Remsen v. Wheeler, 105 N. Y. 573; Arnold v. City of Pawtucket, 21 R. I. 15; Smith v. City of Seattle, 25 Wash. 300; City of Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294. But see Batterman v. City of New York, 65 App. Div. 576, 73 N. Y. Supp. 44. lons, whereas the water taker whose factory buildings are located in blocks not adjoining each other shall pay 14 cents for 100 gallons, it creates a discrimination forbidden by law, and is therefore void.' As a basis for this charge of discrimination, plaintiff relies upon section 3, art. 10, of the constitution of the state, and section 12, art. 7, of the charter of defendant. The former declares: "Taxes may be levied and collected for public purposes only. They shall be uniform upon 1191 Linck v. City of Litchfield, 31 the same class of subjects within Ill. App. 118. 1192 Provident Sav. Inst. v. Jersey City, 113 U. S. 512; Attorney General v. City of Toronto, 23 Can. Sup. Ct. 514. But such rates must be uniform. Wagner v. City of Rock Island, 146 Ill. 139, 21 L. R. A. 519; St. Louis Brewing Ass'n v. City of St. Louis (Mo.) 37 S. W. 525. It is here held that water rentals are not "taxes" within the meaning of constitution, art. 10, § 3, providing for uniform taxation. "Plaintiff insists that, 'assuming that the words "manufacturing plant" were intended to be used as the synonym for "factory buildings," and that the amended ordinance is intended to say that any water taker using more than 50,000,000 gallons annually in factory buildings located in one or more adjoining blocks shall be charged one cent per one hundred gal the territorial limits of the authority levying the tax.' The latter provides that no water rate shall be allowed or fixed by any other principle or consideration than that of producing revenue and exceptional discrimination in rates is forbidden. While the ownership of waterworks by the city and its right to distribute water to its inhabitants is for a public purpose, the charge it has the right to impose for the use of water is not derived from the taxing power but is an exaction the city has the right to make as compensation for the use. The obligation of one who uses water to pay for it rests upon contract." Jones v. Detroit Water Com'rs, 34 Mich. 273; Vreeland v. O'Neil, 36 N. J. Eq. (9 Stew.) 399; Silkman V. Water Com'rs of Yonkers, 152 N. Y. 327, 37 L. R. A. 827. |