I dissent from the order denying a rehearing and from the conclusion of the department upon the point decided. The defendant did contract, and upon a valuable *Page 316 consideration, to waive his statutory right to receive water upon payment or tender of the established rate. He agreed that if the defendant would furnish him with water in 1894, without payment in advance, he would make payment before demanding water in 1895. The defendant furnished the water in 1894 without the payment in advance, which it had the right to demand. The credit given was a good and valuable consideration for the plaintiff's agreement to waive his statutory or constitutional right, and the only question — so far as this part of the case is concerned — is whether it is competent for a party to agree in advance to waive a statutory right. In my opinion, the right in question here is one which may be waived by contract, and I think it bad policy to deny to parties in the situation of this plaintiff and defendant the right to make a contract which in many cases would be greatly to their mutual advantage, and as to the propriety and expediency of which they are the best, and ought to be the sole, judges.
McFarland, J., also dissented.