(dissenting).
I am unable to agree with the majority of the court upon the proposition that if the water company furnished to the city, through the hydrants, a proper supply of water for fire-protection purposes, the fact that the former has failed to furnish to private consumers a quality of water suitable for domestic purposes is no defense to an action brought against the city to recover for hydrant rentals.
It seems to me that the language found in section 6 of the ordinance is plain and unambiguous. If the company shall “suffer a suspension of a supply of good and wholesome water,” it shall not only “forfeit all exclusive franchise,” but “during such failure of supply all water rentals shall be suspended.” The sole purpose of this provision "was to compel the company, which secured an exclusive and valuable franchise, to comply with the conditions of its contract. Quality was of as much consequence as quantity and, upon noncompliance with respect to either quality or quantity, all water rentals were to be suspended. The city was empowered in this summary manner to enforce the contract for pure and wholesome water, as well as for an adequate supply.
I concede that the provision is highly penal in its nature, but it is not as severe as that which provides for a forfeiture of the franchise, and yet the majority are of the opinion that this provision might be enforced under the conditions as to quality and quantity now being considered. It was this particular remedy which was given into the hands of the municipality in case impure *266and unwholesome water was furnished for domestic purposes, and it was expected, in my judgment, that the municipal authorities would be as deeply interested in protecting the inhabitants from disease as they would be in protecting their property from destruction by fire.
It is no justification of the position taken in the main opinion to say that the city, as such, has other remedies. The one plainly agreed upon cannot be wiped out of existence by such fact. And I am opposed to attributing to the council or to the company which secured the franchise a deliberate intent to compel individual customers to enter upon expensive litigation with a corporation in order to obtain full and prompt redress, should the water prove unfit for domestic purposes. Such a remedy would be none at all.
I therefore dissent as to this single question.