(After Stating the Facts.) — The date given as the time when this corporation was organized and commenced business was at a time when the statute (Idaho Rev. Stats., secs. 2710-2712) was in force, and therefore the said corporation is subject to the provisions thereof. Section 2712 provides that any corporation created under the provisions of that title, for the purposes named, subject to the reasonable direction of the city or town authorities as to the mode and manner of using such right of way, may use so much of the streets, ways and alleys, in any town or any city as may be necessary for laying pipes for conducting water into such town or city, or through or into, any part thereof. Section 2711 provides that all corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof for family use, so long as the supply permits, at reasonable rates, and without distine*355tion of persons, upon proper demand therefor, and must furnish water to the extent of their means, in case of fire or other great necessity, free of charge. This section also provides a means of fixing the rates to be charged by the corporation for water furnished the inhabitants, which is that the city shall appoint two commissioners, two to be selected by the water company, and, in case the four cannot agree, a fifth shall be selected by these four, or in case of disagreement the probate judge shall appoint a fifth. With these provisions in view, and with the facts as above alleged, which by the demurrer are admitted to be true, this court is asked to compel said water company to furnish water to said city for fire purposes and other great necessities free of charge. But section 2710 states “no corporation formed to supply any city or town with water must do so unless previously authorized by an ordinance of the authorities thereof or unless it is done in conformity with a contract entered into between the city or town and the corporation,” and states, further, that contracts so made are valid and binding in law, etc. In the face of this statute, the court is asked, in effect, to enter up a decree directing and requiring said water company to furnish the city water for fire purposes free of charge, with this statute (section 2710) standing at the head of the chapter which absolutely forbids this corporation or any corporation to furnish any water to the city, either free or for a compensation unless said corporation is previously authorized to do so by ordinance or by contract entered into between the corporation and the city. In order to illustrate the position the court would be in, let us suppose this court should reverse the decision of the court below, and direct the district court to enter up a decree in compliance with the prayer of the complaint, in case the defendant should decline to answer. The district court would, in effect, be required to adjudge and decree that the defendant should furnish the city water for fire purposes and other great necessities free of charge, in the face of section 2710, which says it shall not furnish water for any purpose, either free or for compensation, unless previously authorized by ordinance or contract so to do. The complaint must state everything necessary to enable the court to enter up the, judgment prayed for if the defendant does not answer, but this *356the court cannot do in this ease, because the plaintiff has not alleged that said company is authorized to furnish water at all, «either by ordinance or contract. While we think the city could enter into no contract which could nullify the provision of the statute which requires said company to furnish water free for fire purposes to the extent of its means, still we think the court should know the exact condition of things between the city and water company, as there may be a contract or ordinance which -would affect the character of the decree the court would be authorized to render.
.¿Respondent contends, also, that the portion of section 2711 which requires the water company accepting the privileges granted by the statute to furnish any city so occupied water ■for fee purposes free is unconstitutional, as repugnant to section 2, -article 15 of the constitution. This section simply announces a general principle, and the first clause amount's only to a definition; that is, that the right to collect rates, etc., for water supplied to any county, city or town, or the inhabitants thereof, is a franchise, and cannot be exercised except in the manner prescribed by law. This section does not amend sections 2710, 2711, or 2712 of the statute, but would authorize the .enactment of just such a statute, unless it interferes with the right of the legislature to say that a corporation so formed ■sVial] furnish water for fire purposes free. In our view of it, this section is not prohibitory at all. It is, as said above, simply a definition. It does not say the legislature shall not pass ¡a law compelling a water company, in consideration of the acceptance of certain privileges and rights, or in consideration of ámy privileges or rights, to furnish a city or town water for fire ¡purposes free. Neither is this law repugnant to the provisions «of section 6, article 15 of the constitution, which says: “The legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.” That is, the legislature shall provide by law the manner in which reasonable maximum rates may be fixed for ¡the use of water furnished for which the corporation is authorized to charge anything, and does not prevent the legislature ■from granting certain privileges, in consideration' of the ac*357ceptance of which the corporation shall furnish water for fir© purposes free, as above stated. As at present advised, we se© no reason for declaring this portion of section 2711 to be unconstitutional. There seems to be really but little reason, in th© view we take of this cause, for touching upon the question of the constitutionality of this provision of the law; but counsel seemed to make it one of the issues to be determined, and therefore we have said the judgment of the court below is affirmed,, with costs to respondent, but the district court is directed to sec aside the judgment of dismissal, allow plaintiff to amend the complaint, and issue a restraining order restraining the defendant from cutting off or interfering in any way or manner with the water supply furnished by defendant to plaintiff for fire purposes and other great necessities until the rights of the parties can be finally determined.
Huston, J., concurs.