I concur in the result arrived at by the CHIEF JUSTICE. Unable to agree with the reasoning of either of the other opinions herein, it is necessary that I state my views.
We are asked to restrain the city council from granting a waterworks franchise. The sole claim of right to injunctive relief is that under subsection 68 of section 3564, Code of 1915 (subsection 67, § 14, c. 39, Laws of 1884), such franchise cannot be granted without approval by popular vote.
Among other contentions, counsel for appellees and amici curiae urge that said subsection 68, and particularly the requirement of a popular vote contained therein, has no reference nor application to a proposed grant of a franchise to a public utility corporation, either to erect, or to erect and operate, waterworks; and that said subsection and its restriction apply only in case the city proposes to erect, or authorize the erection of, a plant for its own use and operation. This contention, in my judgment, is based upon correct construction, and should be sustained.
If subsection 68 dealt only with waterworks, I confess that its meaning, when read in connection with other provisions, would be, to say the least, doubtful. *Page 298 The other provisions to which I refer are subsection 69 of the Act of 1884 (subsection 70, Code of 1915) and subsection 71 of the Act of 1884, not compiled in 1915, but appearing as subsection 72 of section 2402 of the Compiled Laws of 1897. The former section assumes the existence of a power in cities to grant franchises to private individuals or incorporated companies to build and operate water and gas works, and to contract with them for a water and gas supply for the public needs of the city. The latter provision assumes the existence of the right to grant franchises to private individuals or incorporated companies to build, maintain and operate such works, and to make such contracts.
Subsection 68 does not, however, deal with waterworks alone. It deals in exactly the same terms with gas works. But subsection seventh-VII of said section 3564, Code of 1915, confers upon the city council and board of trustees in towns power "to regulate the opening therein [streets, alleys, avenues, sidewalks, parks and public grounds] for the laying out of gas or water mains and pipes, and the building and repairing of sewers, tunnels and drains, and erecting gas lights: Provided, however, that any company organized for the purpose of manufacturing illuminating gas to supply cities or towns or the inhabitants thereof with the same, shall have the right by consent of the city council or town trustees, but not without such consent (subject to existing rights), to erect gas factories and lay down pipes in the streets or alleys of any city or town in the state, subject to such regulations as any such city or town may by ordinance impose." This subsection, as well as all other provisions of the original act, must be considered in arriving at the true meaning of subsection 68.
Under subsection seventh-VII the Legislature granted, to any company organized for the purpose, the right to erect gas factories and lay down pipes in the streets and alleys of any city in this state. The only limitation upon that right is that it shall be by, and not without, the consent of the city council, and subject to such *Page 299 regulations as such city may, by ordinance, impose. This, to my mind, constitutes a complete legislative grant of power to the city, acting by ordinance passed by its council, to grant a private franchise for the erection and operation of gas works and the use of the streets and alleys of the city for the purposes thereof.
Subsection 68, by its terms, has nothing to do with the granting of franchises. It grants authority to the city only to erect its own gas or water works, or authorize their erection. It is this power only which is to be exercised on the condition of an approving vote of the electors. Without importing language or intent, nothing more can be made of it.
Speaking only of gas works, we have, then, two independent powers existing in the municipality. Under subsection seventh-VII, it has the power, through its city council, to grant franchises. By subsection 68, it has the power to erect a municipal plant. For the power to grant franchises, it is not necessary to refer to subsection 68 nor to any other provision of the act of 1884. I do not think it is necessary or permissible to import into this express grant of power any restriction found in other sections, unless the express language or plain meaning of those other sections so requires. The two grants are independent. So are the limitations.
As pointed out, subsection 68 deals with waterworks and gas works in exactly the same language. It must have the same interpretation, whether gas works or waterworks are under consideration. If it refers only to municipal ownership and operation as applied to gas works, it means exactly the same as applied to waterworks.
It is immaterial to the decision of this case whether power can be found anywhere in the act of 1884 to grant franchises for waterworks. It may be that subsections 69 and 71 of that act (subsection 70, Code of 1915, and subsection 72, C.L. 1897) are sufficient to constitute such grant. If lacking, through inadvertence *Page 300 or design, that would not justify us in taking liberties with subsection 68. It is less objectionable, in my view, to impute the power to grant such franchises to subsections 69 and 71 than to subsection 68. But if the power is to be found nowhere in the act, it is immaterial. It has since been granted and now exists. Code 1915, §§ 1048 and 3564, subsecs. 90 and 67.
Subsection 68 refers in terms only to "erection." Subsection 69 uses only the synonymous term "construction." It is just as broad as subsection 68, but no broader. Subsection 69, in my opinion, has reference only to a municipally owned waterworks. A private enterprise would need no municipal grant of authority to construct works outside the city, and to conduct water to its limits. On the other hand, the authority for a municipality to construct works, and particularly to exercise jurisdiction beyond its limits, must needs be derived from express grant. The powers of erecting waterworks and of exercising jurisdiction beyond the city limits are not original to the act of 1884. Chapter 1 of 1880 was a comprehensive Municipal Code, by section 35, subsec. 23, of which it was provided:
"To construct and establish works for furnishing the city with wholesome water, and for that purpose may go beyond the city limits and exercise full jurisdiction and all necessary powers therefor."
These powers are merely continued, somewhat amplified, and made to apply to gas works, by subsections 68 and 69.
From this viewpoint, it does not seem difficult to harmonize all of the pertinent provisions of the act of 1884, giving to each its proper place and application. Two methods of supplying a municpiality with gas and water were contemplated. Provisions governing municipal ownership and operation are found in subsections 68, 69, 71, 73, 74, 75, and 76. Provisions relating to private ownership and operation are found as to gas works in subsection seventh-VII, and as to both gas and waterworks in subsection 70. Original subsection *Page 301 71 (subsection 72, C.L. 1897) relates to both forms of ownership and operation.
If the foregoing is sound, it follows that the trial judge did not err in his action upon the pleadings before him, and that there is nothing in the stipulation filed in this court which requires consideration.
Support for my construction of subsection 68 is found in Pikes Peak Power Co. v. City of Colorado Springs, 105 F. 1, 44 C.C.A. 333, where the court, in an opinion by Judge Sanborn, said that similar language in the Colorado statute "applies only to waterworks, gas works, and electric light works purchased or erected by cities, or built for cities, under contracts with them, by other parties." It is suggested that the case was decided on other grounds. I cite it, nevertheless, as the view of that able court as to the meaning of the subsection standing by itself.
It is said that a broader view of subsection 68, or of provisions more or less similar, has been indulged in Raton Waterworks Co. v. Raton, 49 P. 898, 9 N.M. 70; Raton v. Raton Ice Co., 191 P. 516, 26 N.M. 300; Hanson v. Hunter, 48 N.W. 1005, 53 N.W. 84, 86 Iowa, 722; Leadville v. Leadville Sewer Co., 107 P. 803, 47 Colo. 118; and City of Centerville v. Fidelity Trust Guaranty Co., 118 F. 332, 55 C.C.A. 348. In none of these cases was the question directly involved or passed upon, and in none of them does it appear that the contention was made, as here, that the provision had application only to municipal enterprises. In Raton Waterworks Co. v. Raton, the ordinance in question had, in fact, been submitted to vote. In Raton v. Raton Ice Co., it was said that the sections in question "authorize the construction and operation of waterworks, either by the city or by the granting of permission to private individuals or incorporated companies to build and operate such waterworks." However, no one was in that case disputing that proposition, and, in my opinion, it is not necessarily involved in the case at bar. Subsection 68 was not there especially referred to as *Page 302 the source of power to grant franchises, nor was the question of submission to popular vote involved. In Hanson v. Hunter, it was said:
"It is not questioned but that the power of municipal corporations to erect or authorize water or gas works is subject to approval by a majority vote."
In Leadville v. Leadville Sewer Co., the expression relied upon is merely an argumentative observation of one of the seven justices, six separate opinions having been delivered. In City of Centerville v. Fidelity Trust Guaranty Co., a vote of the people had been had; the only question being whether certain changes in the details of the franchise, made by the council after the election, had invalidated it.
If it be a fact, as urged, that city councils have heretofore construed subsection 68 as requiring a referendum of waterworks franchises, it surely is not controlling, and could only be persuasive to resolve a doubt. The same may be said as to the proviso of subsection 68, introduced by amendment in 1909, which is urged as legislative construction. With deference to my associates who reach different conclusions, I am constrained to accept the contention that subsection 68 has no application to the granting of franchises.
Entertaining these views, I concur with the CHIEF JUSTICE in affirming the judgment.