
    City of Gadsden et al. v. Mitchell. et al.
    
    
      ■Bill for Mandatory Injunction.
    
    (Decided April 10, 1906,
    40 So. Rep. 557.)
    1. Municipal Corporations; Waterworks Franchise; Contract. — The granting of a franchise by the city to construct and operate a water' works system, and the making of a contract by the city with such water works, to furnish water for public and private use within the city, are within the incidental powers of the charter, and an exercise of its business or proprietory powers, and not a delegation of its governmental functions.
    2 Waters; Water Companies; Municipal Franchise and, Contract; Time Limit. — In the absence of a time limit fixed by statute or the constitution, the court cannot say, as a matter of law, tl»at thirty years is an unreasonable length of time for which to grant a water works franchise, and to make a contract for furnishing of water for public and private use.
    3. Municipal* Corporation; Charter and Incidental Powers; Water; Discretion. — Within the charter or incidental powers of a municipal corporation, it is in the discretion of the corporate authorities to determine how best to provide a method of obtaining for the corporation and its inhabitants, pure and wholesome water, and they may, by carefully guarded contracts, do so.
    4. Waters; Water Companies; Designation of Streets Toy City; Mandatory Injunction; Condition Precedent. — The contract not prescribing the order in which the work of constructing the water plant shall be begun, it is not a condition precedent to maintaining a bill for mandatory injunction to require, the city to designate the streets in which pipes shall be laid and hydrants located, that complainants shall have purchased machinery, located- water towers and pumping station, etc., or otherwise begun to perform their part of the contract.
    5 Same. — Under the contract in this case complainants had the right to require the city authorities to designate the streets ' upon which pipes were to be laid and hydrants located, and upon failure, on demand, of the corporate authorities to do so, mandatory injunction will lie to compel action.
    6. Same; Municipal Contract; Enforcement; Invalidity of Part.— The contract being valid in part and invalid in part, the valid conditions may he enforced, while the invalid- cannot.
    
      7. Contracts♦; Enforcement; Parties.- — Under a contract made with “M and associates,” upon allegation that another is the only associate of M., such another is a proper party complainant to a sijit tp enforce the contract. ..
    Appeal, front Etowah 'Chancery Court. ■. ,■
    Heard before Hon! W. W. Whtteside.
    R. A. Mitchell and associafes filed-their hill-for mandatory injunction to require the proper authorities of the city of Gqdsden t.o point o,at and .designate such streets in the said city of Gadsden as it was. desired that water mains and hydrants be laid in. . The bill sets up the contract which is fully set out in.a former report of this case (Weller v. Gity of Gadsden, et cd., 141 Ala. 642) and reference is here1 made to the facts and opinion in that case for the proper understanding of'the opinion in this case. The hill also alleges that subsequent to the making of the contract, and after the opinion in tire case, above referred to was rendered, an ordinance was passed by the hoard of mayor and aldermen of the city of Gadsden re-ratifying and re-affirming the contract. That it is also alleged that the complainants are ready to carry out and perform their paid of said contract, and to that end have requested the proper authorities of the city of Gadsden, in writing and otherwise to- point out and designate *the streets' in the city of Gadsden, where it is desired that complainants begin laying their water mains, erecting hydrants, and, doing other necessary things to a proper carrying out of their part of the contract, and that the city authorities.have declined and refused to designate said street, and to permit complainants to comply with said contract, and it is prayed that the authorities he required to designate said streets and to permit complainant to proceed with the yvork necessary to a compliance with their part of the contract. The city demurred to the bill and by its demurrers presented for consideration the right of the city to enter into the contrlact; that it was a, delegation of the governmental functions of the city to others than the duly qualified officers of the city; that the contract was unreasonable; that it was void; and that the city liad the right to annul the franchise and revoke the contract and that the hill showed that the complainants were not in position to demand of the city anything as complainants had not done or performed anything looking to the carrying out on- their part of the. said contract. Motion urns also made to dismiss for want of equity, the chancellor overruled the demurrers and denied .the motion to dismiss for want of equity, and from this decree, the city prosecutes this appeal. ■ . , • .. ■ '.
    H; T. Davis and Hierro. .Inzer & Stephens, for appellant. —
    The case here is that of a contract between individuals and a(subordinate branch of the government acting under delegated governmental power to conserve the interest and promote the welfare of the people who are the wards- of the government. The powers granted to the city of Gadsden a.s to the, matters in the foregoing bill are found in Sec. 22 8ubd. 10 .and*26 of the charter of said town (Acts 1882-3.)
    These powers-are continuous. They inhere in the municipality, to be- exercised at all times according to the wisdom of municipal government for the benefit of the people. They are not exhausted by being once exercised: As, for instance, power given to a city to fix water rates is not exhausted when rates are fixed. — City of Knoxville v. .Knoxville Waterivorks Vo., 64 8. .W. llep) 1875.-
    The very fact of the continuity of these powers shows that they impose important governmental functions. They are of the police powers of the municipality, and this means a power .to be exercised by the municipality for the health, comfort, peace and repose of the people. Waterworks are for tin? promotion of the public health, for the prevention of disease and spread of same, and for the comfort and convenience1 of all the inhabitants alike, and in which all alike are interested. — City of Motile v. Bicnnvxlle Watcncorhs Vo., 130 Ala. 385; A. & E. Enc. Law, Yol. 30 pages 403 and 416; iV. 7. Health Department i\ Trinity Vhurch, 145 N. Y. 32.
    Preservation of the. public health is one of the duties of government, and devolves upon the state as a sovereign power, and all steps or measures taken by municipal corporations to that end are in the exercise of purely 
      governmental functions. — Love v. Atlanta, 51 Am. State at bottom of page ■ 66 Springfield Fire '& Marine ' Ins. Go. v. Keesville, 51 Am. St. 667.
    Such action by a municipality is not the exercise of a •proprietary or business power. — 1st. Dillon Sec. 66.
    So in the case of \the City of ■Greenville v. Greenville Waterworks Company125 Ala. 6,25, Justice Sharpe refers to* the act of providing the city with water as being the exercise of a business power. The act of doing so* is one thing, hut the regulations, rules, conditions and powers' to he exercised in its performance are quite a different thing. Aside from this, the Greenville waterworks case was to make the city pay for water it had used. That case did not involve a discussion of the question whether or hot the contract, aside from paving for the water the city had used, delegated or surrendered any of its governmental duties in respect of supplying the city with water.
    The power conferred upon the city as to furnishing the city and inhabitants pure water, being the creation of a governmental duty, cannot he delegated. — 1st Dillon, Secs. .96 and 97.
    If the effect of any of the provisions of the ordinance constituting the contract in this case he the surrender, abrogation or abeyance of the governmental powers and duties of the city, such provisions are against, public policy and void. — City Council of Montgomery v. Cap. City Watenoorks, 92 Ala,, p. 361, 376, 366.
    The power given to the city to make all needful provisions to supply the city with water, and to exercise the power of eminent domain to supply it with pure water, plainly imposed two* great governmental duties: 1. To ■furnish a sufficient, quantity of -water. 2. To furnish a pure quality of water.
    The legislature said to the city, “You do this — you must determine the quantity and quality — you are the trustees of the government to that end.”
    The contract is ultra vires the city of Gadsden in that: (a) Tt leaves it to complainant to select the kind of water to he furnished the city and its inhabitants. (1>) It leaves it to the complainants to determine the kind of conduits, through which water shall flour into the homes of the people for drinking, for cooking- and other domestic uses, (c) It leaATs it to complainants to determine AA'hen the streets of the city shall be opened to lay pipes and mains.
    We íespeetfully submit that more important governmental duties do not rest upon respondents than are involved in above sections, a, b, and c, and yet these duties have been turned OA'er to complainants to be exercised bv them in their discretion.
    It cannot be questioned that the duty of the-city in respect of the quality of the Avater to be furnished its inhabitants is governmental. To obtain pure Avater the legislature granted the city the power of eminent domain, yet the city has turned over tO' complainants the right, to take Avater for the inhabitants of the city from wliatever source the complainants may desire.
    A surrender or abeyance of such, powers by a municipality is against public policy and void. — Authorities supra.
    
    The contract- is further ultra vires the city in that: (d) It leaves it to the complainant and the city engineer to determine the size of the mains, (e) It. provides that the city of Gadsden and its inhabitants may be left. Avithout a, supply of AVater for any continuous period of three months during the life of the contract, (f) It requires the city of Gadsden to accept absolutely complainant’s Avater works (if ever constructed) simply on showing a head of Avater 200 feet through a hose of a certain size, (g) It provides terms for the purchase of the Avatenvorks after 20 years which virtually makes the' contract á perpetuity — for no such terms could ever be complied Avith: (h) ' The contract alloAvs complainants at their pleasure to use the highways of the city for the purpose of furnishing- Avater to any tOAvn or city, and it provides that the city shall make no objection. This places it beyond the poAver of the city to this extent to control the use of its higliAvays. The poAver given the city is to provide Avater for the "city, not other cities, (i) It is a contract for thirty years, fixing rates for that time to be paid by the city, maximum rates for the inhabitants, compelling the city to take not less tli¿11110 hydrants' for every mile of extension whether needed or hot, compelling the city for all that time to take not'"less than' 60: hydrants when nbw methods and new systems ’arising -írom intelligent' research may disclose they are unnecessary. The better and le-sé expensive Ways Coming into Use-cannot1 be restored to-for thirty years,-because the city is tied for‘thirty years by its "contract. 1 ■ •- ■" ■ ‘
    Such a contract a;s to -such important matters is void as against public policy. It is inimical to the duty of holding the reins of government so as to Administer its powers at ail times for the" benefit of the- people. This is one of'-the reserved'rights''of'the people set-forth in the bill’of rights, which no provision" in the constitution find no act of the legislature can impair, abridge or destroy.
    Power" given" to a" city to erect and maintain sewers renders void "an Ordinance authorizing certain other personé to receive bids and to fix"shell limitations'as they may impose for the erection 'and maintenance of the sewers, not being required to report to the council. — Lowry v. City' of LivingstoH;'25 Kv." Law. Rep. 392 ;'75 Southwestern" "202. '
    A-city "council-having -authority to construct- sewers cannot delegate-its authority vesting discretionary power in'-a committee, "and 'chief "engi-iieer, as'to- such construction. — Pchplo v: McWathy], 177 111,- 334.-' ' -r-
    Power given tbe city" of-Néw York to "construct piers on "land "and Under water is'legislative which the 'City cannot abrogate or' restrict — Whitney ■ v. City'of We'ir. York, "6 Abh.1329, n&tb cas'es. • - "
    ■■ The contract is- Vo-id Us-to-time kncl. prices.The city ' under constitutional "provisions1 inaydgranib-a franchise fo'r: thirty-years;’ but1 it- is not given fhepower to make a‘contract, as to the "terms' and conditions under-Which said'franchise-is" to he;used for .thirty year’s.- It is beyond the power of man" to--know Whether -the, térras ’fixed today upon 'Which the people 'may’ be supplied' with- wáter j; will be -reasonáb] é" one,- -two- or" ■ three" years hence.1"1 !The phwer must" be left open-and Unfettered'to-be eXereisdd by tlie city for "the good'of 'the'p'eople;’a-nd lienee" for the-go'od’ of government". -Municipal Corporations may Uotentér" ihtó a contract which by'reason, of duration through a long period of time, or -of the nature of the subject matter, tends to restrict the municipal authority in'the full exercise of its judgment and discretion, in performing public governmental duties. — A. & E. Enc. Law, Vol.' 20, page 1146 (h) ; A. & E. Enc. Law, Vol. 30, page 416; Ball v. Cedar -Rapids, (Iowa) 88 Nw. Rep. 448; 'Flinn v. Little Falls lee Co., 77 NW. Rep; 38; Reaffirmed 78 NW. 106; 2nd Dillon, third Ed. Secs. 692-3-4-5-7 and 716; Sagina-a? (las Co. v. Saginaw. 28'Fed. Rep. 529; Long r. Diilnth, 32 Am. St. 547 (49 Minn. 2801; Richmond Gas Co. v. Middleton, 59 N. Y. 228; First Beach on Municipal Corporations, Sees; 619-20:22 and notes; Gale v. Kala-ivarjoo, 9 Am. Rep. SO;' Danville v. Waterworks, 178 111. 299' (69 Am. St. 304), 180 TT. S. 619; Free-port Waterworks v. Freeport, 189 TT. S. 588; Rogers Water Co-, v. Ferguson, 180 IT. S. 624.
    The above and other authorities reiterate time and again the familiar principle that a municipal'corporation can exercise no power save that which is expressly conferred or necessarily implied, -and that doubts as’ to whether a given-act is ¡authorized aro resolved in' faVor of the government and against the proposed act. - Tt is essential to the preservation (if the municipal' government for the people‘“that its wings he kept clipped.”
    But if it appears that the provisions ih the contract' do not show a delegation of any governmental'power, o-r a restraint upon the city in performing any of’it’s‘duties to the public in respect of giving pure water, of otherwise, nevertheless it’remains that 'the contract'is clearly fmréasonablé and'unjust in most, if not all, the particulars (specified as vltrti- vires provisions. " Being' linjust, ■ inequitable, mandatory injunctions will riot be granted.-— 4th Mayfield 840 Bee. 61.-and authorities' cited; 3rd May-field 202 Sec. 51.1 and authorities cited; 3rd Mayfield 2Ó6 Sec.' 582 and authorities cited;'lst Brieke'll page 692 See. 760; 2nd Stofv Eq. Jurp. Sec. 760'; Ffv'on Spec. Per. Sec. 317. " i "
    ' Complainants’ claim'to injunctive 'relief being'based on Contract they must slipw that they have p'drfornied as far as they could their part of tlie contract and that they ¡a,re in a position to ask equitable relief. — 2 High on Injunction, Sec. 1119; A. & E. Ene. P. & P. Vol. 10 p. 932 note; A. & E. Ene. P. & P. Vol. 20 p. 452.
    Complainants do not show that they have done anything under their alleged contract towards performing what they agree to^ do. They have not selected a location for their works — have not bought their engines, nor machinery, nor appliances for their plant — have not spent, a cent under said contract and have not made any arrangements whatever for the1 work to be done. All this they could have done, and should, have done, before the hill was filed. No interference is shown.
    Complainants as to relief by mandatory injunction have a clear, specific and complete remedy at law — a remedy to enforce (if they have the right) exactly what they ask by their bill.
    When a street commissioner refuses to issue a permit for the construction of street railroads, mandamus to to compel him to issue is the proper mode to raise the question as to whether his refusal Avas right or wrong and injunction Avill not lie. — Nassau Electric liy. Go. v. White, (Breeldyn) 12 Mis. Rep. 631; 34 N. Y. Supp-960; Topeka v. Topeka. Water Go., 58 Kan. 349.
    The plain object of this bill is to secure an exclusive enjoyment of an alleged waterworks franchise — a monopoly as to one of‘the necessaries of life — this cannot he done. — -Tuse,alosa Tee Go. Case, 127 Ala. 323.
    Exclusive grants are contrary to the Avhole theory of our government and the bill of rights Avhich declares that no man or set of men are entitled to exclusive public emoluments or prVileges from the community. — 2nd. Dillon Munic. Corporations 3rd Ed. Sec. 694.
    Mandatory injunction Avill not issue ’if the right is doubtful, and laches appear. — A. & E. Ene. LaAV Vol. 16 page 357.
    Nor aaúII it he granted unless extreme and serious damages will ensue from withholding it. — A. & E. Ene. La.AV Vol. 16 p. 342.
    Nor Avill it be granted if on balancing the conveniences between the parties it appears reasonably more harm will come to the public than Avill be suffered by complainants. This rule is especially applicable where the party applying for it has been guilty of laches. — A. & E. Enc. Law"Vol. 16 p. 363-4.
    A close reading of the bill will disclose glaring laches. There is a studied effort in the bill to avoid this implication, bnt the fact is seen that the complainants have been too long silent in ashing for the streets to be designated for the pipes. They have never said anything about having the streets graded. — 16 Cyc. 152 & 162; 16 A. & E. Enc. Law p. 336-7 and 8.
    As to laches: The contract was made on the 11th day of November, 1902, and work to begin on or before Jan. 1st, 1905.
    During this time they did nothing. Four days before their time was out they requested a designation of streets for mains and asked for further time in which to begin work. The council extended their time 30 days from January 1st, 1905. A committee of the council appointed to designate streets for mains reported and asked for further time. That committee never took action. On 1st Tuesday in March, 1905, (Charter City of Gadsden) a neAV council Avas elected and not until June 5th, 1905, was there again a, request for streets to be designated. This long delay is inexcusable in the presence of the urgent necessity for a proper Avatmvorfcs system as declared in the first sentences of the ordinance contract, and in presence of the fact that complainants have ever hi en ready, willing and able to comply AY'it'b their part of the contract as they solemnly aver in the bill.
    The bill is speculative — a mere fishing venture — fishing to get something out of a matter the laAv condemns. Its suggestions are to the underlying motives of respondents are wild. Besides respondent’s acts in trying to get means to build a waterworks plant are lawful and such acts can never be the basis of complaint. The bill is a. covert attempt to so hedge complainants alleged contract as to make it monopolistic, or to Avring from respondents a consideration to cancel it. As to this it is significant that complainants Avritten request of June 5th, 1905, was made just as the city Avas beginning its second effort to provide Avater for its inhabitants.
    
      We insist the contract is void for the reasons above expressed and for the reason that. Weller, then a party known to complainant, Mitchell, was not made known to respondent. — Marshall v. Whitecreek, 47 Tenn. 252, (7 Caldwell) ; 11 Century Digest Column 25 Sec. 12.
    The contract is wanting in mutuality; the minds of Weller and the city of Gadsden have not met in assent to and concurrence in its terms.
    The act of the city council in repealing the ordinance contract of complainants was expressly authorized by section 22 of the declaration of rights of the constitution of 1901, which is as follows:
    “That no ex post facto law nor any law impaling the obligation of contracts, or making any irrevocable or exclusive grant of special privileges or immunities shall be passed'by the legislature; and every grant of a franchise, privilege or immunity shall forever remain subject to revocation, alteration or amendment. The question now is in whom vests the power of revocation, alteration or amendment.
    The constitution of 1875, article 1, section 23 reads as follows:
    “Section 23. That no ex post facto law or law imparing the obligation of contracts, or making an irrevocable grant of special privileges or immunities shall be passed by the general assembly.”
    It thus appears that section 22, article 1 of the constitution of 1901 enlarges .section 23, article 1 of the constitution of 1875 in two important particular’s: 1. Tt prohibits the legislature from making an exclusive grant of special privileges. 2. It makes “every grant of a franchise, privilege or immunity forever subject to revocation alteration or amendment.”
    It will be seen that every grant of franchise is thus made .subject to revocation. This means that no grant of a franchise can be made which may not be revoked..
    “All franchises, privileges and immunities shall be subject to revocation, alteration or amendment.” — Journal Constitutional Convention 1901 page 381.
    Unquestionably the plain object of this provision is to keep franchises, privileges and immunities- granted bv the government, within the graph of the government. Why this necessity?
    Tiie declaration of rights answers: “That the great and general essential principles of liberty and free government may be recognized and, established.” — Declaration of rights Constitution 1901, Article 1.
    This power of revocation, alteration or amendment is set forth as an essential principle of liberty and free government, and that such is its character is plainly manifest in' many instances where granted franchises, privileges or immunities have proven dangerous to the integrity of our government. They lead to oppression and abuse, and against these conditions ’tig the common impulse of man to rebel the world over. So that this right of revocation is absolute, unqualified and inviolate.
    In construing a. constitutional provision, especially a provision of the declaration of rights, it is not so much the form and manner of expression that are to be considered, as the nature and object of the provision, and the end to be accomplished. It is to .be construed so as to effectuate its principles, and general terms used to express a purpose include everything to give' reasonable effect, intelligently and fairly to the object in view. —Carrot v. State, 58 Ala. 396; Ex parte Gajle, 108 Ala. 574; I tal entine v. Wicker sham, 75 Ala. 533; Hand v. State, 7 Tex. App. 212; People r. Packer, 50 N. Y. 283; Donaran v. State, 34 Ala. 216.
    Burnett, Hood & Murdiiree, and Doioti, Martin ¿i Allen, for appellee. —
    Contracts of municipal corporations are construed and controlled by the same rules of law and constitutional limitations as contracts between natural persons or'private corporations.
    “A city acting under special as well as general authority in granting a permit to a private person to construct vaults, under its streets or alleys, and requiring compensation therefor acts in its private corporate capacity, as distinguished from its public and political or governmental capacity, and the rules applicable to the exercise of its public political powers do not apply.” — Gregsten r. City of Chicago, 36 Am. St. Rpp. 496.
    
      “A city lias two classes of powers — the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other proprietary quasi private, conferred upon if, not for the-purpose of governing its people, but for the j)rivate advantage of the inhabitants of the city and o.f the city itself as a legal personality. In the exercise of the powers of the former class it is governed by those rules governing a public functionary, or agency of the -state. In their exercise it is ruling its people and is bound to transmit its powers of government to its successive sets of officers unimpaired. But in the exercise of the powers of the latter class, it is controlled by no such rule, because it is acting and contracting for the private benefit of itself and its inhabitants, and it may,exercise the business powers conferred upon it in the same way, and in their exercise it is to be governed by the same rules that govern a private individual or corporation.- — Trust tG Savings Bank v. The City of Arkansas Oily, 76 Fed. Rep. 282; Dillon’s Municipal Oorp-. (3rd Ed.) Sec. 66 and cases cited in the note.
    “In contracting for water -works to- supply itself or its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or propri etary powers. The purpose of such a contract is not to gover nits inhabitants, but to obtain a private benefit for the city itself and its denizens.” — 1 Dillon Mun. Corp. Section 27.
    “A city in contracting with an individual for the supply of gas to its inhabitants is bound by its contract, the same as an individual and can do nothing to impair their obligations.” — Western Sav. Funds Society v. The City of Philadelphia-, 31 Penn. St. 175; Oity of Indianapolis v. The Indianapolis Gas Light & Coke Go., 66 Indiana, 396; New Orleans Gas Go. v. Louisiana Gas-Go., 116 U. S. 650; Louisville Gas Go-, v. The Citizens Gas Go., 115 U. S. 683; New'Orlcdns Water Works v. Rivers¡, 115 U- S. 674; St. Tammany Water Works v. N. 0. Water Works, 120 U. S. 64. ■ ■
    The supreme court of Alabama, in speaking of the contracts of municipal corporations in this state, makes use of this language: - -
    
      “A corporation is an artificial, person — a. creature of sovereign legislative power. And there is no doubt such body corporate within the compass of its powers, may enter into contracts just as a natural person may malee like contracts.” — City of Selma■ v. Mullen, 46 Ala. 414.
    “The act of providing the city with water for fire purposes pertains to the business powers, and not to the governmental powers, of the city council; and it had authority to bind the city on that account for a reasonable time, if not for the whole period named in the ordinance, and whatever was done in execution of the contract will be referred to that power.” — City of Greenville v. Green-ville Waterworks', 125 Ala. 627.
    Courts will take judicial knowledge of the charter of a city or town'. — Lord v. Mobile, 113 Ala. 360.
    The charter of the city of Gadsden will be found in acts 1882-3, page 281.
    It will he noticed that the city of Gadsden has very large and general powers to make and adopt by-laws and ordinances in whatever manner and on whatever subject for the good government and order of said city as they may think proper.
    The charter powers of the city of Greenville granting authority to provide for a water supply are certainly no broader if as broad, as those contained in Gadsden’s charter. The supreme court of Alabama, held that Green-ville had the power to make a similar contract1 to supply itself and inhabitants with water. — City of Greenville v. Greenville Water Works Co-., 125 Ala. 627.
    Again, independently of the express power to make such a contract, the power to supply itself and its inhabitants with water is one of the incidental powers of a municipal corporation.
    “A city having power to pass ordinances respecting the police of the place and to preserve health is authorized as a'sanitary police-regulation to contract and procure a supply of water by boring an artesian well on the public square or otherwise, and is the judge of the mode best adapted to accomplish the object.” — 1 Dillon on Mun. Cor. (4th 'Ed.) Section 146.
    In TAvingstan v. Patkin, 31 Ala. 542 the power to supply a town with water is stated to be derived from the general powers of a municipal corporation. Again, it is said in tire same opinion that the power to secure a water supply is derived from and is said to he incidental to the general authority of the city to make all contracts necessary for its welfare. — See 1 Dillon Section 443, Foot Note 1.
    It will thus he seen how easy and incidental to the general powers of a municipal corporation is the power to procure a proper wafer supply.
    “Thus in this state it has been held that independently of any statutory authority such corporations possess the inherent power to enact ordinances for the protection of its citizens against fire, and it is further said that this power not only authorized the enactment and enforcement of ordinances establishing fire limits and regulating buildings, but the purchase of apparatus for extinguishing fires and furnishing water.” — Grcmfordsville v. Broclcn, 30 Am. St. Rep. 219.
    In view of the foregoing it seems to us that the power of Gadsden to make the contract in question cannot be doubtful.
    It is further insisted by those representing the city that, conceding the power of the city to make a contract to supply itself and inhabitants with water, the exercise of it for so long a period as thirty years- is unreasonable, and that for that reason the contract is void.
    “The making of contracts for the supply of gas and water is a matter delegated to the governing powers of a municipality, to be exercised according to their own discretion ; and in the absence of fraud, while acting within the authority delegated to them, their action is not subject to review bv the courts:.” — Vincennes v. Gas Go., l(i L. R. A. 489.
    The authority is so far of a discretionary character as to authorize the corporate officers to- determine when the wants of a city demand a supply of water and with this discretion courts do- not interfere.” — Gity of Valparaiso v. Gardner,'49 Am. Rep. 417.
    . “It is well established that the discretion of municipal corporations within the sphere of their powers, is pot subject to judicial control, except in cases where fraud, is shown, or when? the power of discretion is being abused to the oppression of the citizens.” — Gity of Orcmfordsville x'. Brodm, 30 Am. St. Rep. 221.
    “The discretion of municipal corporations Avithin the sphere of their powers is as Avide as that possessed by the government of the state. It is no more competent for the judiciary to interfere with acts of. the one than the other. Where, therefore, corporations or their officers: are acting AAuthin well recognized poAvers or exercising discretionary powers, court sare Avliolly unAvarranted in interferring unless fraud is shown or the power of discretion is being manifestly abused to the oppression of the citizens.” — 16 Am. Eng. Encv. LaAV, (2d Ed.) 1046.
    From the foregoing it Avill be seen that in matters of this kind the discretion of the town council assumes a wide scope and cannot be interfered with or checked by the judiciary except in extreme cases. As such a contract AA’ith a city of 6,000 inhabitants is Avorth more than one AAÚth a smaller city, it goes Avithout saying that if 30 years is a reasonable time in contracts Avith cities of the first class, it- Avould certainly be reasonable in contracts Avith cities of the second class. We do not believe that Justice. Tyson went far enough in the opinion referred to on this subject. We feel confident that the contract is Aralid for the period of thirty years.
    On this subject see the folloAving cases: — Gity <b: Greenville v. Greenville Water Works, supra; Mitchell v. Gity of Gadsden, 37 So. Rep. 682; Oconto Water Supply Go. v. Oconto, 80 N. W. 1113; Hurley Water Go. v. Vaughan , 91 N. IV. 97; ÍÁttle Falls Electric & Water Go. v. JAttic Falls, 102 Fed. Rep. 663; Defiance Water Go. v. Defiance, SO Federal 753; Cunningham v. Gity of Cleveland, 98 Federal 657.
    It Avill be seen from the foregoing authorities that the instrument, in question is a contract, which is protectee! from impairment by both the federal and state constitutions ; that the city had the poAver to make it, and that it Is not void because it has a duration of thirty years.
    Can the city repeal or annul the contract?
    
      “The ordinance under which complainants claim, as we have said, is more than the mere grant of a franchise. It is a contract, and must he treated as such.” — Mitchell v. City of Gadsden, 37 So. Rep. 686; Vincennes v. Light Co.. 16 L. R. A. 485.
    Where the council or the legislature has tendered a franchise in the street and an agreement is made to take the water, if the franchise is accepted and the agreemnt made, either by doing something towards its acceptance, such as building the works, or by accepting in the words of the grant, or by taking* possession of the easement? granted, it becomes a contract, and is protected by the federal and state constitutions. — Walla Walla v. Walla Walla Watenoorks Co., 172 U. S. P; N. 0. Gas Light Go. v. La. Gas Light Go., 115 U. S. 650; N. 0. Watenoorks Go. v. Rivers, 115 U. S. 674; St. Tamma/wy Watenoorks Go-, v. N. 0. Waterworks Go., 120 U. S. 64; Louisville Gas Go. v. Citizens Gas Go., 115 U.-S. 700; City of Vincennes v. Citizens G. L. & C. Go., 16 L. R. A., 488; Indianapolis St. Ry. Go. v. Citizens Street Ry. Co., 127 Ind. 369; City of Newport v. Newport Light Co-., 84 Ky. 174; City of Louisville v. Trill), 84 Ky. 290.
    Another contention made by the city is that the contract as a whole is void because as originally agreed to, it attempted to.grant to Mitchell and associates the exclusive right to build and maintain a water works system in the city of Gadsden. This question is not now, as we view it, involved in the case, as the contract has been modified by eliminating this feature from it. We shall, however, discuss this question to some extent because what we shall have to say in this connection will' equally apply to other portions of the contract which have been criticized by opposing counsel.
    It will be seen that until the invalidity of the grant for its' exclusiveness is challenged by the act of some one, its validity or invalidity is a moot question, and, ought not to receive consideration by any court. — III. Trust & Savings Bank v. Arkansas City, 76 Fed. 281.
    Again the contract is not invalid except in the sense that it is ultra• vires■ as to its exclusive feature, and that feature is easily separable from the other valid parts which confer on complainants all they need to build a system of Avater Avorks in Gadsden. In other words, appellees have rights under the contract Avhich Avill enable them to build Avater Avorks Avithout resort to- the invalid and exclusive feature at all.
    “The test by which to- ascertain whether a contract assailed as illegal is capable of enforcement is Avliether the plaintiff requires the aid of the illegal transaction to support its case. When his rights can be established without the aid of the illegal transaction, it does not effect them.” — 2nd Mayfield’s Digest, Paragraph 613 and authorities cited.
    And this is always the case Avhere the stipulations of the contract are separate and distinct as they are in this-instance. The offensive feature of the contract here is found in the first grant to complainants AAdiich is to give Mitchell and associates the exclusive right to- construct, maintain and operate water works and conductors in the city of Gadsden.
    The second grant or stipulation of the contract is the right to enter upon any and all streets, alleys, lanes, avenues and public grounds in said city. It Avill be seen that the second grant or stipulation 'of the contract gives Mitchell and associates all the poAver necessary to build Avater works in the city of Gadsden and is complete of itself without any aid from the first exclusive: grant. It will be noticed also that it is perfectly valid, containing no exclusive or other objectionable features, and that it is capable of enforcement and performance without, the slightest aid from the first or-exclusive section of the contract. — 76 Fed. Rep. 280; Clarhcsburg Elec. Light Co. v. Clarksburg, 50 L. R. A. 142; 76 Fed. Rep. 380; Í25 Ala. 640.
    Section 22 of the Constitution of Alabama, 1901, does not give the council the right to repeal the franchise and contract. That right is legislative; — Atqhison Ry. Co. v. Pacific Ry. Co., 31 Kan. 666; State v. Mayor of Jersey City 8 Atl. Rep. 123; Citizens Horse Ry. Go. v. Bellville, 47 111. Ap. 388; Mayor v. Houston Ry. Co., 83 Tex. 548; Baltimore T. and C. Go. v. Baltimore, 64 Fed. 153; Ar
      
      cata v. A. cC- M. R. R. Co., 28 Pac. 67; Goast Line Ry. Go. v. Savannah, 30 Fed. Rep. 646; Van Hoffman v. Quincy, 4 Wallace 535; People v. O’Brien, 111 N. Y. 1.
    Counsel discuss other features of the contract, but does not cite any authorities.
    The appellees have not been guilty of laches. A careful consideration of the bill and its averments will demonstrate this; the contract provides for the contingency that arose on account of litigation heretofore. — ±Montgomery Light Go. v. LaSjiey, 121 Ala. 132; First National Bank v. Nelson, 106 Ala. 542; Shorter v. Smith,, 56 Ala. 208; Scruggs v. Decatur M. & L. Go., 86 Ala. 173; GalHber v. Gocko'cll, 145 II. S. 368.
    The city provided for the present and future supply of pure and who! esome water to- itself and Inhabitants by th|e contract under consideration and agreed to take water under the contract and cannot now build and operate a plant of its own. — GhnrcJnoard v. Queen, L. R. I. Q. B. 173; Barton v. McLain, 5 Hill 256; Manistee Iron Works Go-, v. Shore's Lumber Go-., 92 Wis. 21 ^Delaware & Hudson Canal Go. v. Penn. Goal Go., 8 Wall 288; Tyrone G. é IF. Go. v. Tyrone, 195 Penn. 566; Walla Walla Water Go. v. Walla Walla, 172 U. S. 1.
    The, purpose of the contract was not to govern the inhabitants of the city, but to obtain a private benefit for both the city and its inhabitants — that is the purpose Avas Avithin the business proprietary powers of the city as distinguished from its governmental and legislative functions. It should, therefore, receive the same construction as though it had been entered into between individuals.-— III. Trust & Savings Bank v. Arkansas City, 76 Fed. Rep. 271; Cunningham v. City of Cleveland, 98 Fed. Rep. 663; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Bailey v. Neto York, 3 Hill (N. Y.T 531; Brumm’s Appeal (Pa. 1886) 12 Atl. Rep. 855.
    “In the construction of all contracts the object is to ascertain and, if possible, effectuate the intention of the parties, so that performance may be enforced according to the sense in AAdiich they mutually under,stood at the time it Avas made; and to ascertain the intention it is necessary not only to examine the instrument itself, but also to consider the situation of the parties, the-subject matter, and the object it is intended to accomplish, and every word-and clause must he taken into- consideration, mid if possible, given some effect.” — Electric JAght Co. v. Elder Jiros., 115 Ala. 148; Mason v. Ala. iron Co., 73 Ala. 270.
    It is a well settled fact that the law implies duties and obligations in a contract other than those which are expressed, and the implied duties and obligations are as much a part of the contrail as those expressed. Or, to express it differently, wha.t is implied in a, statute, pleading or contract, is as much a part of it as what is expressed. — U. 8. v. Babbit, 1 Black, 55; Massachusetts v. Rhode Island, 12 Peters 123; Union Depot Co. v. Chicago Rg. Co., 113 Mo. 213.
    The case of Southu'cst Mo. JAght Go-, v. City of Joplin, 101 Fed. Rep. 23, is somewhat similar to the case in question. In it the proposition Ave are noAv considering is very fully and ably considered. — See also-, White v. City of Madville, 35 Atl. Rep. 694. 177 Pa. St. 643; Hendi'ichs v. Hughes, 117 Ala. 591; McCurry p. Gibson, 108 Ala. 451.
    The hill has equity, and while it is not strictly a bill for the specific performance of a contract, it is in that nature and is mo-re properly speaking a. bill to- prevent the impairment or destruction of contractual obligation. This kind of bill has been a number of times upheld in Alabama. — Mobile p. L. <C- N. R. R. Co., 84 Ala. 123.
    Other cases upholding bills of this character are the folloAAÚng: — 8. £ H. R. R. Co. v. Highland Ave. and Balt R. R. Co:, 98 Ala. 400; Bienville Water Co. v. Mobile, 112 Ala. 260; HemlrkEs.p. Hnfflm. 117 Ala. 591; Walla Walla IF. Co. v. Walla Walla, 172 U. S-. 1; Larvyers Edition. 43, Ml;Vichsbitrg Water Co. v. Vichsburg, 185 IT. S. 65.
    On the question of the validity of the contract and the construction of it Avith reference to- the several features in it criticised by opposing counsel, Ave cite the case of 8ims v. Bracing Co., 132 Ala. 311.
    We desire to cite generally for the information of the court the following cases: — Val Paviso p. Gardner, 49 Am. Reji. 416; Quincy v. Bell, 106 111. 337; Monroe Water Works Co. v. Monroe, 85 N. W. 685, 100 Fed. Rep. 802; Fidelity Trust, & Guaranty Go. v. Fonder W. Co., 133 Fed. 560, 102 Fed. Rep. 663.
    Ou the general subject of the bill and also on the subject of the right to contract with reference to rates we cite the following cases: — City of Cleveland, v. Cleveland C. It. Co., 194 U. S. 517; City of Detroit v. Detroit C. 8. B. Go., 184 U. S. 368. ■
    On the question of the exhaustion by the city of its power to build and own a water works itself, we cite the cases of Walla Walla v. Walla Walla Water Works. 172 IT. S. 1; White v. MeadvilleM L. R. A. 570; Atlantic City Water Works Go. v. Atlantic City, 39 N. -J. Equity 367.
   SIMPSON, J.

This'is an appeal from a decree overriding a motion to dismiss the bill for want of equity and demurrers to the-same. In 1902 the appellant (defendant below), passed the ordinance and entered into the contract shown in the record, whereby certain rights were granted to appellee (complainant) and said complainant undertook and promised to build a system of water works for defendant, with stipulation,? as shown, and agreements on the pai’t of defendant to pay for certain service to he given to the city. On June 1,1903, defendant passed an ordinance by which it undertook to repeal the first ordinance. On December 27, 1904, another ordinance was passed, reciting the fact that Justice Tyson in his opinion' had declared that the contract between complainant and defendant could not he repealed, and, as the mayor and aldermen thought said opinion correct, the parties had agreed on certain modifications, and the original contract was in all -things ratified and confirmed and declared to he in full force. This was accepted in writing by complainant, and has never been repealed. Subsequently complainant demanded of the eitv-authorities that the streets in which the pipes were to be laid he designated-, and the -location for hydrants designated, in accordance with the terms of the contract, and the hoard of mayor and aldermen of said city passed an ordinance appointing a committee of three aldermen to attend to that matter. This committee never performed the duty, and, when complainant renetved the request, a reply was received, which was signed, “Charles P. Smith, Mayor of the City of Gadsden,” saying. “I am instructed to say that the mayor and hoard of aider-men of the city of Gadsden do not understand that they are under any obligation to comply with your request.”

A considerable portion of the argument is devoted to the question as to whether the mayor and aldermen of said city could repeal the ordinance by which the contract was made, and thus absolve the city from the obligations of the contract. We do not see that this question arises at all, as the original ordinance, with the modifications, was re-enacted and the contract reaffirmed. So that- the only question is whether, Avitli the contract still in force and unrepealed, said city can refuse to carry out its proAÚsions. We hold that the cty had the poAver and authority to enter into- said contract, and adopt what was said by Justice Tyson in the cause of Weller v. City of Gadsclen, 141 Ala. 642, 37 South. 682, in so far as he treats of the validity of the contract and of its several portions. The making of such a contract is not a. delegation of a governmental function, but is an exercise of its business or proprietary powers. — Gregsten v. City of Chicago, (Ill.) 34 N. E. 426, 36 Am. St. Rep. 496 ; 1 Dillon on Muni. Corp. (3d Ed.) §§ 27, 66, and cases cited in note ; Western Sav. Fund Society v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730 ; City of Indianapolis v. Indianapolis Gas Light & Coke Co., 66 Ind. 396 ; N. O. Gas Co. v. La. Gas Co., 116 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516 ; Louisville Gas Co. v. Citizens’ Gas-Light Co., 115 U. S. 683, 6 Sup. Ct. 265. 29 L. Ed. 510 ; N. O. Waterworks v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. Ed. 525 ; St. Tammany Waterworks v. N. O. Waterworks, 120 U. S. 64, 7 Sup. Ct. 405, 30 L. Ed. 563 ; City of Selma v. Mullen, 46 Ala. 414 ; City of Greenville v. Greenville Waterworks, 125 Ala. 627, 27 South. 764. The charter of the city of Gadsden confers ample poAvers to authorize the making of this contract. Acts 1882-83, p. 298, § 22. At any rate this is one of the-incidental poAvers of a municipal corporation.- — 1 Dillon on Muni. Corp. (4th Ed.) §§ 146. 443, note 1 ; Livingston v. Pippin, 31 Ala. 542, 550, 551.

There being no limit by constitution, or statute, as to the length of time for which such contracts may be made, the court cannot say that the time fixed by this contract is unreasonable. On the contrary, it is common knowledge that it requires a considerable outlay of money to construct a.system of waterworks, and a considerable pait of the material is buried under the surface of the ground, so that no arrangement could he made for the construction of such a system, .unless the contract be allowed to run for a number of years, so as to offer the hope of realizing something on the enterprise. While it is true that the providing of pure and wholesome water is an impoitant department of the duties of a municipal corporation, yet the authorities cited and many others are conclusive to the effect that the corporate authorities are intrusted with the discretion to determine how that can he best done, and if they find it to he to the best public interest to enter into contracts carefully guarded for the accomplishment of that end they have the light to do so. Without going into all of the details, the contract makes all necessary provisions to secure the purity and wholesomeness of the water, the strength and quality of the mains, provides for testing to the satisfaction of the mayor and aldermen, and also reserves the power in the mayor and aldermen to revoke the franchise upon failure of appellee To comply with the requirements of the contract.

•As to the objection ha,sed on the principle that one seeking injunctive relief based on a contract must show that he lias performed his part of the contract, it is sufficient to say that the contract in this case does, not prescribe the order-in which"work shall be done, nor make it necessary for complainant to purchase machinery, etc,, before laying the pipes. The contract being still in force, and the complainant having a right to demand that the streets he designated in which pipes are to he laid or conduits built, also to have designated the location of the 60 hvdrants, and it being impossible for complainant- to prosecute its work until those things are done, mandatory injunction is the proper remedy, and'complainant is entitled to the same. — 16 Am. & Eng. Ency. Law (2d. Ed.) 342.

But, as to the other prayer of the bill, that the defendant be enjoined from building a system of waterworks, that part of the original contract which attempted to make the franchise granted exclusive is violative of section 22 of the constitution of Alabama, and therefore incapable of enforcement, and, in addition to that, it has been eliminated from the contract by the amendment agreed to. — Birmingham & Pratt Mines St. Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465, 473-475, 58 Am. Rep. 615. That portion of the contract which is valid may be enforced, while that which is not, cannot be enforced.Ill. Tr. & Sav. Bank v. Arkansas City. 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518, 524 ; Monroe Waterworks Co. v. City of Monroe, (Wis.) 85 N. W. 685 ; City of Quincy v. Bull, 106 Ill. 337, 352 ; Clarksburg Elec. St. Ry. Co. v. Clarksburg, (W. Va.) 35 S. E. 994, 50 L. R. A. 142.

There1 is nothing in'the suggestion that Weller was not a proper party. Although the contract was made with Mitchell “and his associates,” etc., yet the bill alleges that the contract was made with Mitchell & Weller, and that Weller was his only associate.

The decree of the court is affirmed.

Weakley. (1 J., and Tyson and Anderson, JJ., concur.  