{dissenting). I cannot agree with the majority of the court upon the decision of this cause. I am of the opinion that the restraining order, in some respects, is absolutely useless; in others, that it is upon the face of the facts stated in the motion papers, premature; and that, therefore, it should have been vacated. In that view of the case, I feel that it is ill advised to consider whether or not the ordinance, in any of its sections, is void. The decision of a court that an ordinance or a law is void is one upon a grave and important subject. It should not be rendered when not necessary; when made, it should be final. It should be well considered.
The ordinance which, by the majority of the court, upon a preliminary matter, is declared to be null and void, at least in part, was passed by the legal authorities, for the purpose of providing sufficient water for the health and *554safety of the inhabitants of the first city of the territory. There is no question —■ no doubt — of the benefits to be derived by the inhabitants of Helena from, the provisions of that ordinance. There is no question of fraud. There is the one question, “ Had the city officials the power to grant this great benefit to the inhabitants of Helena?”' For all that we know, there may be no water furnished at present to that city, either for houshold purposes or for protection against fire; or the present supply, if we must know there is one, may be inadequate. At any rate there can be no presumptions against the defendants. The presumptions are that the defendants were acting in the discharge of their duties. Hntil this case can be finally heard and determined, the people of Helena will be deprived of this great blessing; the prosecution of a great project will be hindered and delayed, perhaps, .only in the end to find that the delay was improperly enforced; all of which is done — First, because it -is claimed that a monopoly is given to the defendant "Woolston, although, as far as appears, neither the plaintiffs nor any one else wish to sell water to the city; second, because warrants may be issued at some future time, which warrants, plaintiffs claim, and the majority of the court hold, are void; and consequently, from such claim of the plaintiffs and decision of the court, they are warrants which cannot be paid to the injury of the plaintiffs or any one else.
I repeat that I shall not pass upon the validity of any or all of the sections of the ordinance, except in so far as they are necessarily involved in the position which I assume, that the order of injunction was premature. I am not to he considered as agreeing with or dissenting from the majority of the court upon any proposition not thus directly involved. I have no doubt that the plaintiffs had the right to commence this action. They are tax payers, and, in so far as the contract portions of the ordinance are concerned, the plaintiffs are directly and personally interested; but, in so far as the license part of the ordinance' is concerned,— *555the naked license of laying pipes,— I think the plaintiffs are not proper parties, there being no charge of fraud, or that the city council is disposing of a franchise in a manner illegal, except as to the contract part. All the cases which I can find hold that distinction. Crampton v. Zabriskie, 101 U. S. 601, 609, is authority upon the first proposition. Upon the second proposition, it is enough to cite the general principle that an injunction will not be issued to restrain a fancied injury. There must be some act definite and impending, threatening to inflict some irremediable wrong upon the plaintiffs, or the plaintiffs must show an injury to them, special, and not an injury general in its nature, before a court of equity will interfere. If Woolston, by laying his pipes, injures the plaintiffs, they must show some special injury to themselves, or they must sue in their own behalf, and in behalf of the people of Helena.
In considering the subject, we may divide the persons enjoined into three classes: (1) The defendant Woolston; (2) The city council, composed of the mayor and the defendants who are aldermen; and (3) the mayor and the clerk of the city of Helena.
1. Woolston is not a party to the appeal. He need not be considered; and any right that he may have could not be noticed except in so far as those rights are involved in the terms of the order restraining the other parties defendant.
2. The city council, which, by the terms of the charter, is composed of the mayor and the aldermen. They have passed the bill; no restraining order can affect the passage of the bill. Now, under this ordinance, what are the duties of the council ? and, in discharging those duties, how does the council threaten some definite, certain, irremediable wrong to the plaintiffs, which entitles the plaintiffs to an order restraining the council from discharging those duties? Let us briefly consider the terms of the ordinance, so far as they concern the council. Section 18 provides: “The right is hereby reserved to the city to govern, by ordinances to *556be enacted from time to time, the general use of the said city hydrants, and the control and care thereof, for the purposes in this ordinance mentioned.” There does not seem to be any great wrong threatened to the plaintiffs in that section, — any definite, irremediable wrong. Section 19 provides, as far as the city council is concerned, that “it shall at all times have, and they hereby reserve the right, in case said "VVoolston, or his successors or assigns, fail to keep said hydrants in good repair, to repair the same, and deduct the cost thereof out of the first warrants to be issued to him or them after such repairs have been made.” The bill provides that the mayor and city clerk shall issue any warrants due thereunder, the aldermen having nothing to do with that. The section just read provides — First, that in certain cases the council may repair the hydrants. Certainly the plaintiffs cannot suffer any great irremediable wrong there. Second. In case of such repair, the aldermen are authorized to deduct the cost thereof; that is, to pay out less money. I cannot see any great wrong to the plaintiffs in the act of deducting an amount of money from a warrant over which the aldermen have no other power; the act would seem to protect the plaintiffs pro tanto. Section 21 provides: “The mayor and committee of the city council of said city, and any officer or other person authorized by said council, shall at all times have free access to the entire works and system contemplated by this ordinance, for the purpose of inspecting, examining or testing the same, or any part or portion thereof.” There is no evident wrong to the plaintiffs in any future act under that section. Section 23 provides that, if Woolston fails to comply with the terms of the bill, the city may repeal, modify or amend the ordinance in certain respects. There is no injury to the plaintiffs in that. Section 24 provides for an examination by the city council of the system and works; for the acceptance by the council, if the work is approved; and for the tests wdfich shall be applied. It is certainly the interest of the plaintiffs to have good works, *557if any. The mere examination, approval and acceptance cannot, per se, injure the plaintiffs, provided the acceptance does not bind the city to the injury of the plaintiffs. It is a proper provision to see that the franchise is not given in vain. Sections 3, 6, 7, 20, contain provisions of a like nature. There is one more — one other provision — relating to the levy of an annual tax. It is contained in section 25, and will be considered hereafter in connection with, the powers of the mayor. These are all the powers given to the council by this ordinance. Section 25 is the only one which can affect the rights of plaintiffs adversely, and will be considered by itself in connection with the mayor. This brings up for consideration an important question,— one that is involved in the terms of the restraining order, in so far as that order applies to the council, acting under any and all of the sections before referred to, excepting section 25.
It will be observed, upon a careful examination of the ordinance, that section 1 grants the defendant "Woolston the right to lay water-pipes, for the purpose of furnishing water “ to all persons, bodies or corporations within the city desiring to purchase the same;” and the section provides that he shall not have the exclusive right so to do. The council certainly has right and power — nay, it is the duty of that body — to provide the people of the city of Helena with water. See the charter of the city of Helena. Section 1, then, gives that license. Section 2 is supplementary to section 1, giving power to dig the ditches necessary, and providing that the streets shall be restored to their former condition. Section 3 provides for the amount and quality of the water. Section 4 provides for the amount of pressure in the pipes. Section 5 provides the number of miles of mains which must be located, and the diameter of the pipes in the various quarters. Section 6 provides the number of hydrants, and nature thereof. Section 7 provides for the laying of pipes in the future, when 'Woolston shall be directed so to do. Section 8 pro*558vides that the pipes shall be laid at a certain depth, and that they shall be laid under the supervision of the street commissioner. Section 9 provides that the pipes so laid shall not interfere with other mains or pipes, and that water-pipes shall be separated by at least six inches of dirt from all gas-pipes. Section 10 provides that no water shall be conveyed through wooden conduits or open ditches; that the mains and pipes shall be first class, and shall stand a certain pressure. Section 11 provides that Woolston and his successors shall provide to the city of Helena, free from cost, all water which may be required by that city for the use of any and all buildings owned or occupied by said city for municipal purposes, and for sprinkling or irrigating the streets. Section 12 provides that Woolston shall receive no pay from the city, or from any person, body or corporation, for any time during which water is not furnished on account of unavoidable accidents. Section 13 provides that the works shall be constructed and maintained so as to interfere as little as possible with the rights and property of others, and that Woolston shall pay for all damages resulting from erection, etc., of the works. Section 14 specifies the time before which the work shall be commenced, and the time within which it shall be completed. Section .15 provides the charges for water furnished to any person, body or corporation in the city of Helena. Section 16 provides that Woolston shall make no charges for tapping mains for the connection of service pipes therewith; provides for the making of that connection; and also that permits must be had from Woolston, and that service pipes must be at a certain depth. Section 17 provides the.means whereby Woolston may refuse to deliver water, — when water-rates are not paid, after they shall have become due. Section 18 has been referred to. Section 19 provides that the city shall have full power to use any of the hydrants for fire, sewer, and other, purposes, and that the city shall have the right to repair said hydrants. (This part of the section has been mentioned before in this opinion.) Section *55920 refers to the right of the city to grant charters to other persons to distribute water. Thus, again, the monopoly theory is defeated, as far as the license is concerned. In this section occurs the first reference of 'any right in Woolston to furnish the city with water. . In all former sections, where mentioned at all, it is a duty imposed upon Woolston, and a right to demand upon the part of the city. Section 21 has been before mentioned. It gives the city power to examine and test the -works. Section 22 reserves all rights to have service pipes disconnected in case of fire. Section 23 we have considered. It provides for the repeal and modification of the ordinance in case Woolston fails to comply with the terms thereof, providing that this shall not prevent Woolston from keeping the pipes and furnishing water to the inhabitants. Section 21 we have considered. It provides for the acceptance of the works. Section 25 contains a contract between the city and Woolston, and the consideration, the money to be paid, and the means of raising the same. Section 26 provides that no person, unless authorized by Woolston or the city council, shall disturb or interfere with the machinery, etc., or shall pollute the water. Section 27 provides that no one shall attempt to hold possession of a hydrant, or refuse to give up a key to a hydrant in case of fire. Section 28 provides for the fine or imprisonment of any person violating the ordinance. Section 29 provides that the word “streets,” when used in the ordinance, shall be deemed to mean alleys, etc. Section 30 provides that no provision of the ordinance respecting size of mains and pressure shall be construed to release Woolston from furnishing a full supply of water to the city and inhabitants thereof. Section 31 declares the intent of the ordinance to be .to provide the city and inhabitants with water. Section 32 provides that Woolston must accept of the terms of the ordinance, and also provides for a bond to be filed by him. Those sections comprise the ordinance. I believe that the substance of the original sec*560tions is fairly comprised within the above digest or recital thereof.
I have quoted fully, so that the point which T wish to make may be clear: It is apparent from an examination thereof, that these thirty-two sections may and can be divided into four groups. First group: Sections 1 and 2 give a license to Woolston to lay pipes and to furnish water to any one within the city limits. Second group: Sections 3 to 18, both inclusive, section 21, sections 26, 27, 28, 29, and 32, relate exclusively to the mariner of laying the pipes, the pressure, the quality of the water, the bonds to be filed, and the protection of the works when built. Groups 1 and 2 of these sections relate entirely to the license. Third group: This includes all sections not already mentioned, except section 25. This group relates, by mere inference, to the contract, but directly to the same subject as those in the second group. It is composed of sections 19, 20, 22, 23, 24, 30, and 31. By a reference to these sections, or digest thereof hereinbefore set out, it will be seen that those sections neither separately nor collectively could be used to enforce any liability against the city; that all that can be said of those sections, in that respect, is that the city has the right to use the water; and that, if it did so use the water, there would be an implied contract, but not one contained in those sections, that the city would pay a reasonable value for the water so used. Fourth group: This is section 25, which contains all the terms of the contract upon the part of the city, and which alone creates any obligation upon the city to pay any money, or do anything whatever, which could in any way injure the plaintiffs.
Whatever name we may choose to apply to these provisions, whether we shall call any or all of them legislative or business functions of the city council, it is nevertheless apparent that the sections creating the license granting the franchise are perfectly independent of all other sections of the ordinance. That being the case, they should not be de*561dared void because other sections creating the contract are invalid. See Packet Co. v. Keokuk, 95 U. S. 80. In that case, the city of Keokuk, by virtue of a law of Iowa in the charter of that city, passed a certain law relative to wharfage. The different sections of the ordinance contained separate and distinct items of wharfage; but one section, No. 3, provided different wharfage charges for steamboats. The plaintiff sought to be relieved from the payment of one of these items imposed upon it by the city. Different extracts from the opinion of the court will show the ruling upon this point. The court say: “ In nothing that we have said do we mean to be understood as affirming that a city can, by ordinance or otherwise, charge or -collect wharfage for merely entering its port or stopping therein, or for the use of that which is not a wharf, but merely the natural and unimproved shore of a navigable river. Such a question does not arise in this case. . . . The city of Keokuk has imposed no charge upon these plaintiffs which it was beyond the power of the city to impose. To the extent to which they are affected, there is no valid objection to it. Statutes that are constitutional in part, only, will be upheld, so far as they are not in conflict with the constitution, provided the allowed and prohibited parts are severable. We think, as severance is possible in this case, it may be conceded the ordinance is too broad, and that some of its provisions are unwarranted. When those questions are attempted to be enforced, a different question may be presented.”
It will be observed that the court was considering a city ordinance; so are we. It will be further observed that the provision which was held valid, and the provisions of which the court say “ it may be conceded . . that some of its provisions are unwarranted,” are in one and the same section. Even so they were held severable. In the ordinance which we are considering, the parts which are objectionable as a contract, and the parts granting the license, are sections separate and apart from each other. The au*562thority is conclusive. See, also, Lane v. Commissioners of Missoula Co. ante, p. 473 (decided at this terra of court, and in which the opinion of the court was written by the learned justice writing the opinion of the majority of the court in this case). Conceding this, — -'admitting that the sections are severable, — we find the city council doing not only what they had the right, but what it was their duty to do. If there was no water furnished to the city, the council should .provide the city with water. If there was water furnished, the granting of a further license was a benefit to the city. It instituted a competition which tends to cheapen water rates. It took from that former company, if there was such a one, the monopoly which that company has had,— a monopoly of which plaintiffs complain so bitterly, as tax payers. As tax payers, the plaintiffs should not complain of a competition between water companies which tends to lessen water rates. As tax payers, the plaintiffs should welcome the destruction of the monopoly held by any former water company, if there was such a one. Upon that question, the former water company is the only one that can have cause to complain; and .that company, if there is such an one, is not a party to this action.
It is clear to me that the order should be modified, at least so far as the license, and all things connected therewith, are concerned. Upon this I differ from the conclusion reached by a majority of the court. They do not deny that, the sections are severable; but they claim that this part of the injunction is not before us. This they claim because, the defendant "Woolston not having been served with summons or order restraining him from using the license, neither he nor those acting only upon the part relating to the license are affected. This is. open to two .objections: Either the order is useless as to the aldermen, or it restrains them from doing something which is a prerequisite to the-rights granted under the license. For it must be remembered that the aldermen have nothing to do with the issuing of the warrants. That is confined by section 25 to the *563mayor and city clerk. All that is left for the aldermen to do is to accept the work. If the order is useless as to them, then it should be modified as to them. What is known as the “ right arm ” of equity should not be called upon to strike a useless blow. If the order attempts to restrain the council as to the passage of the ordinance it is too late; but if the order, as it does, restrains the council, including the mayor, from doing anything which is a prerequisite to the license, then it materially affects those portions of the ordinance which I claim, and which the majority of the court do not deny, are valid; and in that respect, at least, the order should be modified. The order restrains the council and mayor from discharging duties beneficial to the city, in that, Woolston being restrained, he can lay his pipes without any examination by the agents of the city.
Section 8 of the ordinance provides that the work of laying the mains shall be done under the supervision of the street commissioner. He is an agent of the municipal authorities; and the order restrains him from doing that which is part of the terms of the license, and which is no part of the contract. Section 24 provides for the examination and acceptance of the work. This is not a portion of the contract, but is one of the conditions that must be complied with before the inhabitants of the city can have the water. It is a beneficial provision, one to be exercised by the council, and one which the council should not be restrained from complying with, because it relates only to the license portion of the ordinance. Finally, section 32 provides for the filing of a bond, as one of the prerequisites. That bond is to be filed with the city clerk, and is to be approved by the mayor. The order, in so many words, restrains the city clerk from accepting, and the mayor from approving, any such bond. Those acts refer to that which concerns the license only, and the order restraining those acts should be modified, at least in respect to them.
To put the question briefly: (1) The statute can be divided into two parts; one consisting of those sections which *564grant the license and control its use, the other those sec* tions which create the contract. The two parts are not so commingled that they cannot be readily distinguished. This being the case, and there being no illegality in the license portion, the sections referring to the license should be held valid. Oases already cited. (2) The mayor, individually, the council, composed of the mayor and aldermen, and the city clerk are restrained from doing certain acts which they must perform before the city can have the benefit of this valid license. These acts are.for the benefit of the city, and are in no way connected with the 'contract. Therefore, the injunction should be modified in that respect at least.
As to that section of the ordinance which relates to the contract, I think that the question of monopoly can well wait until the final hearing of this cause. The plaintiffs are not a water company, wishing to furnish water to the city; they come here as tax payers, and as such, I can see no great wrong threatening them as far as the monopoly in that section is concerned.
It remains only to consider that portion of the ordinance relating to the issuance of warrants. This court takes judicial notice of the seasons of the year, of the climate of Helena, and of the terms of the district court. The order was granted on December 4, 1888. The court judicially knows that it will be some months before Woolston can commence to lay mains or pipes. We also know that it takes some time to lay thirteen miles of mains. The ordinance directs that the first warrant issued thereunder shall not be issued until the works shall have been in operation one entire month (see sec. 25), and we judicially know that there will be a term of the district court, at which this question can be determined, within three months. In view of these facts, I think the issuance of the temporary order was useless, and should therefore be vacated, for no injury to the plaintiffs can happen in the meantime, and Woolston can claim no right under that section by proceeding with his *565work; for if that section is void, he is presumed to know the law in that respect. I can see no great, impending, immediate, or irreparable injury to the plaintiffs from this section of the ordinance. The treasurer of the city of Helena pays warrants duly issued; he alone can make payment. If the warrants are void, then the treasurer should not pay them. The warrants cannot be issued until one month after the water-works have 'been in operation. Before that time, as we have seen, this action can be heard upon its merits. At any event, plaintiffs can bring an action to restrain the treasurer from paying those warrants. Before they will have to bring an action against the treasurer, in order to protect themselves, many of the uncertainties which ought to prevent them from maintaining the preliminary injunction in this case will have disappeared. Until "Wbolston has filed his consent and bond; before the work is so completed ; before any warrants are issued,— plaintiffs can suffer no wrong; but after all of these things shall have been done, plaintiffs will still have a month in which to commence an action to restrain the treasurer from paying the warrants. At that time, when all those uncertainties shall have vanished, plaintiffs can come into a court of equity and show that they are threatened with some definite, certain, imminent and impending danger. Until that time comes, the danger is fanciful; it is theoretical, problematical, and dependent upon too many contingencies, and a court of equity, to protect them against such injury as that, cannot and should not exert the great power of injunction intrusted to it. It would be belittling the highest power given to courts to use it in fighting windmills of that description. Upon the general principles above stated, relating to the definiteness and imminency of the danger against which equity will protect those seeking its protection, I cite the following cases: Spring Valley Water-works v. Bartlett, 16 Fed. Rep. 615, and cases cited; Morgan v. City of Binghampton, 102 N. Y. 500; People v. Canal Board, 55 N. Y. 391; Kearney v. Andrews, 10 N. J. Eq. 70-78, and *566many cases m California holding that courts of equity will not grant relief against a judgment void on its face.
The case of Crampton v. Zabriskie, 101 U. S. 601, is much relied upon by respondents. The opinion in that case was written by Mr. J ustice Field, who, as a justice of the supreme court of California, established for that state, and maintained in many authorities, the principle that equity will not restrain a fanciful injury which is based upon a void act. In the United States case the learned justice was dealing with no such fanciful wrong. Crampton had brought action against a city to compel it to pay certain bonds issued by the city. The bonds had been declared invalid before Crampton brought the action referred to. Zabriskie brought an action to restrain the prosecution by Crampton of that action. There was no fanciful wrong there; payment of the bonds was threatened. So, with the case at bar, when the warrants shall have been issued and payment threatened, there will be an injury threatening, against which plaintiffs can be protected in a court of equity.
I am therefore of the opinion that the judgment of the court below, overruling the motion to dissolve the temporary injunction, should be reversed.