dissenting:
I do not concur with the reasoning or conclusion reached in the opinion adopted by the majority of this court. On this record two questions are presented for adjudication in this court: First, is ordinance No. 517 a valid enactment, and if so, was it error to sustain the demurrer to the first and second pleas; and second, did the allegations of the declaration show a valid promise by the city for the payment of the rental for one hundred and fifty-eight hydrants in the manner authorized bylaw.
By section 1 of article 10 of the City and Village act it was provided: “The city council or board of trustees shall have the power to provide'for a supply of water by the boring and sinking of artesian wells, or by the construction and regulation of wells, pumps, cisterns, reservoirs or water-works, and to borrow money therefor, and to authorize any person or private corporation to construct and maintain the same at such rates as may be fixed by ordinance, and for a period not exceeding thirty years; also to prevent the unnecessary waste of water, to prevent the pollution of the water, and injuries to such wells, pumps, cisterns, reservoirs or water-works.” (Hurd’s Stat. 1889, p. 271.)
This section was in force at the time of the adoption of the original ordinance, by which the contract was made for the one hundred hydrants at $75 each and the additional hydrants at a specified rate. The rigdit is granted by the foregoing section to contract for a supply of water for a period of thirty years, and the right to contract for a supply necessarily gives the right to fix the rate at which the supply shall be furnished. By the provision above quoted the State invested the municipality with power to make and contract for a supply of water for a period of thirty years, and it would be difficult to comprehend the meaning of terms authorizing a contract to be made for a supply of water to be furnished without including therein the right to fix the price at which it should be so furnished. This power conferred by the legislature sanctions a particular act and authorizes it to be done. Where a contract is made to accomplish the act thus sanctioned it must be held valid.
The power of the State in regulating, governing and conferring power on municipalities is supreme, but where it confers a power with reference to a contract, and that power is once exercised, it is subject, like other legislative powers, to the authority of the State and Federal constitutions, and when it invests a corporation which derives its power from the State with the power to make a contract, and that power is exercised, the legislature is thereafter concluded from annulling or rendering invalid such contract. Such a contract is only subject to judicial construction, and is sacred from interference by the legislative power. Such a contract made by a municipality under the power conferred by a State legislature cannot be impaired, and has thrown around it the positive restrictions of the Federal and State constitutions. Citizens’ Water Co. v. Bridgeport, etc. Co. 55 Conn. 1; Rockland Water-Works Co. v. Camden, 80 Me. 544; New Orleans Water-Works Co. v. Rivers, 115 U. S. 74; St. Timothy’s Water-Works Co. v. New Orleans Water-Works Co. 120 id. 64.
In a contract running for a period of years for the supply of water a different rule is invoked from that which applies in the case where a contract is made for lighting a city. In the one case the legislature has conferred the power on the municipality to contract for a period of years; in the other it is silent as to such power. The municipality having no power other than that granted by the legislature, is limited to the powers granted and known conditions of most of the cities and villages of the State of Illinois, which necessarily must exercise the power of providing a means of supplying their inhabitants with water, and which could not do so without conferring privileges and entering into contracts in many cases; and the legislature, deeming the power to contract for a period of years necessary to secure such supply of water, by the enactment above quoted exercised a power not restricted by the constitution of the State of Illinois, and conferred upon the municipality a right to so contract for a term of years. The necessary construction of the section heretofore quoted is, that it conferred the power to contract for a supply of water and fix the price thereof for a period of thirty years. Subsequently to that enactment, by an act approved July 1, 1885, entitled “An act to enable cities, incorporated towns and villages to contract for a supply of water for public use, and to levy and collect a tax for the water so supplied,” it was provided: “That in all cities, incorporated towns and villages where water-works have been or may hereafter be constructed by any person or incorporated company, the city, town or village authorities in such cities, incorporated towns and villages may contract with such person or incorporated company for a supply of water for public use for a period not exceeding thirty years.” No reasonable construction can be given the former section, with reference to the period to contract, different from that to be given the latter act. Both authorize the fixing of a price at which the water supplied shall be furnished. It was not error to sustain the demurrer to the first and second pleas.
The contention that the declaration does not set forth a binding promise, because it contains no averment that before or at the time of making the contract a provision for the collection of a tax to meet payments as they might fall due was provided for, or that no appropriation had been made before or at the time of making the contract, cannot be sustained. The constitutional prohibition against going" into debt beyond the amount limited by the constitution does not prevent the making of contracts for supplying an article of daily consumption at a stipulated price, to be paid for at stated intervals after delivery, and which was paid for by annual appropriations levied and collected for that purpose. That does not create an indebtedness within the meaning of the constitution. (City of East St. Louis v. East St. Louis Gas Light and Coke Co. 98 Ill. 415.) The sufficiency of the declaration in stating the cause of action must be held well pleaded when it violates no provision of the ordinances of the city or the constitution and laws of the State of Illinois, and if the city has the power to make a contract for a period of thirty years under the legislation of the State, and that legislation is not unconstitutional, then it must be held that the declaration states a cause of action, and the power having been conferred upon municipalities to enter into contracts for such a length of time for an article of daily consumption, it is not the incurring of an indebtedness which requires an appropriation to be made providing for the whole period of thirty years, as to so hold would place a restriction on the power of municipalities to contract, and would obstruct public wants, retard improvements and not be consonant with the spirit and meaning" of the act. It was not error for the court to refuse to carry the demurrer back to the declaration, in my opinion:
Craig and Cartwright, JJ., also dissenting.