CONCURRING- OPINION.
WOODSON, J.This is an original proceeding instituted in this court, by the 'relator against the respondents, asking for a writ of mandamus, to compel them, as the board of managers of State Hospital Number 2, to order a requisition drawn upon the State Auditor, for the payment to said institution, out of the fund appropriated by the General Assembly, for the support and maintenance of said institution for the years 1911 and 1912, for the sum of $2186.33 alleged to be due the relator for water furnished to the institution from January 1, 1911, to February 1, 1912, under a certain contract to be presently stated; and to allow said account and to order a warrant drawn on the treasurer of said institution for s'aid amount.
An alternative writ was issued as prayed, and in pursuance to its commands, the respondents in due time made return thereto. The facts stated in the return and admitted to be true, are as follows:
*88“On November 1, 1905, tbe then board of managers of the hospital entered into a written contract with the water company by which it was agreed that, ‘for and in consideration of the payments and covenants hereinafter agreed npon, ’ the water company agreed to lay and maintain from its main at Twenty-eighth and Brady streets to the hospital, a water main to connect with a six-inch main on the hospital grounds, the water company to furnish all the labor and materials, and the board of managers to do all necessary excavating and refilling of trenches; the main to be completed by May 1, 1906. There was already a six-inch main laid to supply the institution with water; and it was agreed that this main and the one contracted to be laid should be provided with water meters, and by-passes and gate valves, the by-pass valves to be closed and sealed and to be opened only ‘ in case of fire at the institution. ’
‘ ‘ The water company further agreed to extend its mains for not more than 3000 feet in the asylum grounds and to erect thereon fire hydrants, not more than ten in number, as the necessities of the institution required. In consideration thereof it was further provided that the board of managers ‘hereby agrees to take its entire water supply from the St. Joseph Water Company. . . . for said Hospital Number 2 for a period of ten years from December 31, 1906', said water to be supplied by meter measurements, and at the rate of ten cents per 1000 gallons •. . . payments for all water used to be made monthly.’. And, lastly, it was stipulated that the water company should ‘not be held responsible for any loss or damage occasioned or caused by fire, water, failure to supply water or pressure, or any other cause whatever.’
“Neither at the time said contract was entered into nor at any time prior or subsequent thereto did the G-eneral Assembly make any appropriation for the payment of the water to be furnished and used, or for the payment of the improvement provided for in the *89contract. Prior to the date on which this contract was made the water company had accepted a franchise from the city of St. Joseph, by the terms of which the water company, among other things, agreed to furnish a water supply for the city and the inhabitants thereof during a period of twenty years from December 10, 1899, the water to ‘be furnished to all private consumers at the same rates,’ the rate for all those consuming 1,000,000 gallons or more per month being six cents per 1000 gallons. It is admitted that the hospital has always consumed in excess of 1,000,000 gallons per month. The contract with the city contained this provision:
“ ‘Section 3. Said water company shall extend its mains and pipe lines within the limits of said city along and over its streets, highways and public lands, as the city may from time to time by ordinance direct, and shall for each 500 feet of said extension or fraction thereof erect and maintain a fire hydrant at such points as may be directed by ordinance, or by the city engineer, and of the kind and character prescribed by ordinance; said city hereby agrees to and does rent from said company all hydrants so erected and maintained, and agrees to pay for each hydrant so erected and maintained the sum of forty dollars per an-num. . . .’
“At the time the contract was made with the city the hospital was about one mile east of the city limits; but in July, 1910, they were extended, and thereafter the asylum grounds were wholly within the city limits.
“The water main laid pursuant to the contract between the water company and the board of managers cost $12,000, and was laid partly on public and partly on private grounds. The water is supplied to the institution through this main and the six-inch main laid prior to the time the contract in question was executed, this main being in a public street. It has fire hydrants *90attached, and furnishes connections for other private consumers.
“The hospital buildings are four stories high, and it is admitted that relator did not at any time furnish the hospital with all the water necessary for the use and support of the institution, in this, that it failed to furnish water sufficient to flush the numerous toilets on the. top floors of the buildings necessarily used by the employees and inmates; and failed to furnish- water in sufficient volume to afford any protection against fire, the water furnished not being sufficient ‘to be thrown through the ordinary fire hose and nozzle above the first floor of said buildings. ’
“Because of that fact, and because they claimed that the former board of managers had no power to make the contract, and that the water company was compelled to furnish it with water after the city limits were extended, at the same rate at which it was obligated to furnish water to other inhabitants of the city, to-wit, six cents per 1000 gallons, the present board of managers after July, 1910, ‘refused to recognize said contract, or to receive the water used by said institution, pursuant to the terms thereof, or to pay the price mentioned therein, but at all times claimed to receive the water used by said institution from the relator, pursuant to the rights and obligations created by said franchise,’ and paid to relator six cents per 1000 gallons for all water consumed, as provided by the terms of the franchise; which sum, however, the relator ‘received for credit only and declined to receive the same in full payment. ’ It is admitted that if the relator is entitled to collect ten cents per 1000 gallons the sum claimed in the petition is the correct amount for the water used during the entire time stated in the writ.”
(Note — -Counsel for respondents state that, “The return does not state that the -hospital was located about one mile east of the city before its limits were extended, nor that the main first laid was in a public *91street and had attached to it fire hydrants and furnished connections for other private consumers; hut, .at relator 's request, we assume the first statement to be true. The second statement was admitted by relator’s counsel to be true on oral argument.”
I. Many questions, such as the sources of the revenues provided for the support and maintenance of this class of institutions, the means by which they are collected, preserved and disbursed, have been quite elaborately stated and discussed by counsel for the relator, but in our opinion, they are immaterial to any real controversy presented by this record, and for that reason they will be put aside without further comment.
"We start out in this case, as in all others, with the presumption that a contract, fair upon its face, is valid and binding upon the parties thereto until the party assailing its validity charges and proves its invalidity.
The subject-matter of this contract, namely, the supply of water, involved in this case, is clearly embraced within the purview and authority of the board of managers of this institution, as expressed in the laws of the State governing such institutions.
The principal question presented for determination, is not that the board of managers are without authority to make a legal and binding contract with the relator, to furnish water for this institution and its" officers and inmates, but the contention is, that the particular contract mentioned in this case is null and void for the reason claimed, that certain provisions thereof violate certain provisions of the Constitution, to be presently noted.
Counsel for respondents first assail the validity of said contract in the following language:
“The contract was made November 1, 1905, and provided that in consideration of the water company furnishing the labor and material necessary to lay the *92water main (which amounted to $12,000) the hospital should take its entire supply of water from the company for a period of ten years thereafter at ten cents; per thousand gallons. The main was completed May 1,. 1906. Neither at nor before the time the contract was entered into, or the main laid, was there any .appropriation made by the General Assembly to pay for the water to be used, or for the main to be laid under the contract. The board of managers, therefore, had no power to contract any such debt or liability as was created by this contract.”
They cite in support thereof Secs. 43 and 44, Art. 4, and Sec. 19, Art. 10 of the Constitution of 1875.
In so far as it is material to this case, said section 43 reads as follows:
“All revenue collected and moneys received by the State from any source whatsoever shall go into the Treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn- from the Treasury, except in pursuance of regular appropriations made by law. All appropriations of money by the successive General Assemblies shall be made in the following order: . . .
“Sixth, For the support of the eleemosynary institutions of the State.”
Said section 44, so far as applicable, reads: 1 ‘ The General Assembly shall have no power to contract or to authorize the contracting of any debt or liability on behalf of the State, or to issue bonds or other evidences of indebtedness thereof, except in the following cases.” It is conceded that none of the exceptions provided for in this section have any application to the facts of this case.
And said section 19 reads: “No moneys shall ever be paid out of the Treasury of this State, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment *93be made, or a warrant stall have issued therefor, within two years after the passage of snch appropriation act; and every snch law, making a new appropriation, or continning or reviving an appropriation, shall distinctly specify the snm appropriated, and the object to which it is to be applied; and it shall not be sufficient to refer to any other law to fix snch snm or object. A regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”
The position of counsel for respondents is, that the contract made and entered into, on November 1, 1905, by and between the hospital and the water' company, whereby the latter agreed to construct the water main, mentioned therein, at a cost of $12,000, and to supply the former with all the water it should use for a period of ten years, from the date of its completion, which was May 1, 1906, for a consideration that the former should pay to the latter ten cents a thousand gallons for each and every thousand gallons used by it each and every month during said ten years, was absolutely null and void, for the reason that the General Assembly had not on either of the dates stated, made an appropriation for either of the purposes mentioned, as required by said constitutional provisions.
Counsel for the relator concedes, as contended by counsel for respondents, that the board of managers had no authority under the Constitution to create any debt before the money necessary to pay it had been appropriated by the Legislature; but he seeks to escape the contention of respondents, by insisting that the mere making of the contract mentioned did not create a debt, for the reason stated by him in the language of this court, in the case of Water & Light Co. v. City of Lamar, 140 Mo. 145, l. c. 156, where it is said the contract is analogous to contracts for the public supply of water by municipalities in which it is held “that .no indebtedness of the city (within the meaning of sec*94tion 12 of the tenth article of the Constitution) accrues under the contract until the supply of water has been furnished, as agreed, year by year. Hence we hold that the sum total of the payments that may possibly become due (if the contract be performed by the contractor during its entire term) is not to be taken as the amount of the indebtedness incurred by the making of the contract at the outset. We are aware that there is conflict of judicial and other opinion on this point (43 Cent. L. Jour. 381). But the matter was plainly and clearly presented to the court in Banc, and was positively decided as above indicated, in the Neosho case. That ruling was followed in the former judgment in the Lamar case (128 Mo. 188) and more recently in the second appeal in the Neosho case (136 Mo. 498). We are content to abide by those decisions without reopening the merits of the discussion which they should be taken as closing.”
He also cites Saleno v. City of Neosho, 127 Mo. 627, and Trask v. Livingston County, 210 Mo. 582.
The case last cited reiterates the approval of this court of the language of Judge Dillok in his excellent work on Municipal Corporations, expressed in this language :
“ ‘Under the constitutional provisions in Iowa, Illinois, Indiana and Pennsylvania, referred to, it is held that a corporation may make a contract (at least for necessaries) covering a series of years, upon which an obligation to pay may arise from year to year as the thing contracted for is furnished, and in such case, the whole amount which may ultimately become due does not constitute a debt within the constitutional prohibition. But in order to ascertain whether the corporation by such contract is transgressing the limit, regard is had only to the amount which may fall due within a certain year or other period; and if the revenues for that year or other period are sufficient, over and above the payment of other expenses, to pay *95slid amount, there is no debt incurred within the constitutional prohibition.’ [Dillon on Mun. Corp. (4 Ed.), Sec. 136a.]”
Continuing, the opinion says: “ ‘The term “indebtedness” is a wide one, and must b.e construed in every case in accord with its context. It has been very recently considered, in its application to the subject in hand, by the court in Banc, and the conclusion was announced that such an obligation to pay an agreed sum, year by year, for the furnishing of certain necessary supplies during a term of twenty years, was not an immediate indebtedness for the entire amount that might ultimately become due by installments during that term.’ ”
But in passing, in order to show the deep desire of the people of the State to observe and live up to those constitutional prohibitions against the State or any of its political subdivisions going in debt, except as therein provided, the Legislature duly enacted Sec. 1378, R. S. 1909, which under severe pains and penalties, stated therein, also prohibits the board of managers, and all other officers and agents of such institutions, from contracting any debt in the name of any such institution for the payment of which there had not previously been made an adequate appropriation.
Under this view of the law, counsel for relator, notwithstanding the stringency of its provisions, further insists that since the contract in question expressly stipulates that the hospital agreed to take its entire water supply from the water company for a period of ten years from December 31, 1905, said water to be supplied by meter measurements, at the rate of ten cents per thousand gallons, to be paid for monthly, clearly comes within the rulings of this court as announced in the cases previously cited. In other words, that no debt was incurred on behalf of the hospital, when the contract in controversy was entered *96into, nor nntil the water was furnished by the relator and actually received and used by the former, which under the terms of the contract, was to be paid for monthly, and consequently the indebtedness was incurred monthly, and not from year to year, nor for a period, of ten years.
That being true, as contended, it is further insisted that, as the General Assembly by an Act approved March 24, 1911 (Laws 1911, p. 41, Sec. 16), appropriated for the support and maintenance of said institution for the years 1911 and 1912, the sum of $475,000 (the appropriation having been made prior to the time when said monthly debts were incurred as previously stated) which included those claims for water furnished, together with all other obligations which were necessarily contracted during those years for the support and maintenance thereof, said water debts were not incurred, within the meaning of 'said constitutional and statutory inhibitions, prior to the time the appropriations were made to meet their payment.
In answer to that contention, counsel for respondents insist that said contention of relator is unsound and that the authorities cited have no application to the facts of this case, for the reason stated, that they “involved the validity of a contract made by a city of the fourth class for a supply of water for a term of years.” Each case turned on the proper construction of Sec. 12, Art. 10 of the Constitution. “That section has to do only with the amount of indebtedness which a county, city, town, township, school district or other political corporation or subdivision of the State may incur, and has nothing to do with the power of the General Assembly to contract debts or authorize the contracting of any debt or liability on behalf of the State, which matter is governed by Sec. 44, Art. 4 of the Constitution. ’ ’
*97The various contentions and concessions made by counsel for the respective parties, as previously stated, bring us to the consideration of the first legal proposition presented by this record, for determination, namely: Are the eleemosynary and other charitable institutions of the State political subdivisions thereof within the meaning of See. 12, Art. 10 of the Constitution, or are they simply a part of, or the arm or hand of the State, by which it disperses charity to her poor and unfortunate citizens?
If these worthy institutions are political subdivisions of the State within the meaning of said section 12 of article 10, then clearly the query propounded must be answered in favor of the relator. If, however, upon the other hand, they are not such, but are the arm of the State by which she cares for her unfortunate dependents, then section 44 of article 4 applies, and in'that event, the question must be decided in favor of the respondents.
Counsel for respondents cite no authority for their contention that these eleemosynary institutions of the State are not political subdivisions of the State, within the meaning of Sec. 12, Art. 10 of the Constitution, but content themselves by presenting an ingenuous argument showing that the cases relied upon by counsel for relator have no. application to the facts of this case.
The language of said constitutional provision is: •“No county, city, town, township, school district or other political corporation or subdivision of the State shall be allowed to become indebted,” etc.
Clearly these eleemosynary institutions are not and do not constitute the State itself, and I am unable to discern anything in the language of the constitutional provision just quoted which indicates a design in the minds of the framers of the Constitution to differentiate them from the general classification of *98the institutions mentioned in said section 12. It seems to me that they, in a limited sense at least, possess and perform the same political or governmental powers that are possessed and exercised by counties, cities, towns, townships, school districts and all other political corporations of the State.
While it is true that some of the institutions named possess and exercise private or individual powers, which are separate and independent of all political authority, nevertheless, they are, and are so declared to he, and are designated in said section 12 of the Constitution as, political corporations or subdivisions of the State; and when we view and consider those institutions in their public or political aspect, I am unable to distinguish any difference in the source of and the character of the powers possessed and exercised by them, and the authority possessed and exercised by these eleemosynary institutions. The difference does not consist in character, nor the source from which their respective powers are derived. Both are derived from the sovereign State, and both are public in character, organically the same, but differ in functions only; and especially is this true as to the public school districts of the State, and as to these eleemosynary institutions.
The powers of each are purely public, neither possessing any private or individual rights, such as are enjoyed by cities, towns, etc. Both may sue and be sued in their public capacity, but neither is liable individually for any wrong committed by its officers or agents, nor on contracts, except those made in pursuance to the laws of the State regarding matters within the purview of their public purpose.
Moreover, it is perfectly clear from the language used, that said Sec. 44 of Art. 4 only applies to debts and liabilities, of the State in its sovereign capacity, and it has no reference whatever to the public corporations or other public subdivisions of the State. *99That being unquestionably true, and if it be equally true, as contended for by counsel for respondents, that said eleemosynary institutions are not embraced within the provisions of said Sec. 12 of Art. 10 of the Constitution, then there was no law of the State which then or now prohibits the board of managers of such institutions to incur any debt whatever for the supplying of them with water, either with or without a vote of the people of the State, except as stated in said Sec. 1378, R. S. 1909, for the simple reason stated, that, if section 44 applies to the State’s indebtedness only and section 12 does not embrace these institutions, then there is no law, constitutional or statutory except as stated, to be found in the books which has-any reference to them, and that statute was enacted in 1909. [Laws 1909, p. 572.]
If the contention of counsel for respondents in this particular is correct, then the boards of managers and other properly constituted authorities of all such institutions, were, until the enactment of said section 1378, in the year 1909, absolutely untrammeled and unrestrained in their authority to contract debts on behalf of those institutions, and consequently the board of managers in this case had, on November 1, 1905, full power and authority to make and enter into the contract of that date with the water company to furnish water- to this institution.
That contention proves too much, and if sound, the peremptory writ of mandamus should be issued, if not denied for some other reason.
That contention of counsel, in our opinion, is not only a strained and unwarranted construction of Sec. 44, Art. 4 and Sec. 12, Art. 10 of the Constitution, but it is clearly unsound, when read in the light of the character, nature and necessities of all of the public corporations of the State, and especially the public policy of the State in regard to itself going into debt, or any subdivision thereof.
*100It is just as necessary for these great eleemosynary institutions of the State to have a good and adequate water supply, as it is for the cities, towns and villages, mentioned in said section 12 of article 10 to have it. Many of the former have a larger number of unfortunate inmates than some, of the latter have inhabitants, and the necessities of the unfortunate are always greater than are those of their more fortunate brothers.
If, under the condition of things, as they existed as shown by this record, the officers of this institution had no authority to make a contract for a water supply similar to the one in question, then it would have been almost a physical impossibility fo,r them to have procured water for that great institution, notwithstanding the burning necessities therefor, for the reason it could not have constructed and operated a water plant of its own, and it is not reasonable to suppose that the relator would have constructed the new main for that purpose in the absence of some definite understanding as to what compensation it was to receive in return therefor.
We are, therefore, of the opinion, that the eleemosynary institutions of the State are public corporations and are embraced within the provisions of Sec. 12, Art. 10 of the Constitution, and that the contract made and entered into, by and between the water company and the board of managers of Hospital Number 2 was valid when made, and that the debts incurred thereunder were from month to month, for the water furnished and used from month to month, and not from year to year, nor for a period of ten years, as contended for by counsel for respondents; and since the appropriation approved March 24, 1911, for the support and maintenance of this institution for the years 3911 and 1912, was sufficient for all purposes, and made prior to the time the debts were incurred, *101they are valid, or rather were not prohibited by said section 12 of the Constitution.
II. The validity of the contract and the indebtedness incurred thereunder, mentioned in this proceeding are also challenged by counsel for respondents for the reason stated, that in consideration of the agreement that the water company should furnish the labor and materials necessary to lay the water main, which was to cost about $12,000, the hospital was to take its entire supply of water from the company for a period of ten years, and in consideration thereof, the ten cents mentioned was to pay for not only the water used, but was also to include and pay for the cost of the labor and materials used in constructing the water main, through which said water was to be furnished. In other words the hospital, when it entered into the contract mentioned to pay for the water used, also agreed to pay the $12,000 which was the cost of the construction of. said water main; that this part of the contract created an indebtedness on the part of the hospital, at the time the contract was made and entered into, namely, November 1, 1905, and that the agreement was to pay it in equal monthly installments during the period of ten years, for which it was to take and use the water, which it is claimed, is clearly in violation of the Constitution, for the reason that there is no pretense that the appropriation of March 24, 1911, for the support and maintenance of the institution for the years of 1911 and 1912, was made for the payment of the cost of constructing said water main.
If the contract in question means what counsel thus insist that it does, then there would be much force in that insistence, but in our opinion the contract is not susceptible of any such construction. Neither the language of the contract nor the intention of the parties thereto, as gleaned from the four corners thereof, indicates that the hospital was to pay the cost of the *102construction of the water main, in monthly installments or in any other mode or manner.
We, therefore, rule this insistence against the respondents.
III. Prior to the date of the contract involved in this controversy, the city of St. Joseph granted to the water company a franchise to furnish water to it and to the inhabitants thereof, for a period of twenty years, from and after December 10, 1899', and authorized it to charge for the water furnished them, certain rates stated therein. In consideration of said grant the water company agreed with the city, and on behalf of the inhabitants thereof, that it would furnish water at those rates, and that all private consumers were to have the same rates and that no inequality or partiality in rates should be permitted.
The rate so agreed upon to persons who used the water in excess of one million gallons per month was six cents per thousand gallons; and it was admitted that the hospital has at all times consumed more than that quantity.
Under the obligations imposed upon the water company by said contract, counsel for respondents insist that it became the legal duty of the company to furnish water to all of the inhabitants within the limits of the city, as they then existed, or as they might thereafter be extended, at the rates fixed by said contract and that so long as said contract remained in force it could not absolve itself from performing that duty to any person notwithstanding, the fact that such person did not reside in the city at the time it was made and entered into, and notwithstanding the further fact that the company made another contract subsequent to the one made with the city, by which it agreed to furnish him water at a higher rate than specified, provided the limits of the city were subsequently ex*103tended so as to include Mm therein. In other words, it is'insisted that under the law, the extension of the city limits so as to include the hospital, relieved it of the contract obligation to pay ten cents per thousand gallons, and imposed upon the relator the corresponding duty to furnish water to it at the same rates it agreed with the city to furnish water to all other consumers, who consumed equal quantities, namely, six cents per thousand gallons to all who used one million gallons or more each and every month.
Counsel for the relator concedes that ordinarily this insistence of respondents is well grounded, hut he endeavors to escape the effects thereof by contending that section 3 of the contract between the city and the water company removes tMs case from the rule of law just stated. Said section reads as follows:
“Sec. 3. Said water company shall extend its mains and pipe lines within the limits of said city -along and over its streets, highways, and public domains, as the city may from time to time by ordinance direct, and shall for each five hundred feet of said extension or fraction thereof, erect and maintain a fire hydrant at such points as may be directed by ordinance ■or by the city engineer, and of the kind and character prescribed by ordinance; said city hereby agrees to and does rent from said company, all hydrants so erected and maintained for the sum of forty dollars per annum.”
The relator’s position in regard to this section of the contract is best stated in the following language cf counsel, viz.:
“The rule of law is undoubtedly correct that in accepting a franchise, a water company acts not as a private but as a quasi-public corporation. It enjoys and must exercise its opportunities for gain subject to its obligation to the public in the absence of a contract fixing the rates that it will supply water without unjust discrimination and at uniform rates to all those *104along the lines of its mains who apply and tender a reasonable compensation.
“30 Am. & Eng. Ency. Law, 426, and cases cited.
“The mains above referred to are public, not private.
“These rates, however, are under the public contract with the city based upon an additional compensation of a hydrant rental for each five hundred feét of mains laid pursuant to the order of the city and other conditions. •
“The pipe line in question was not laid pursuant to the city contract and could not he for the reason that at that time the State Hospital was at least a mile beyond the city limits and it is only by reason of the fact that since the limits of the city have been extended so as to take in the hospital that the defendants claim the benefit of the public rate granted to those inhabitants who are located on one of the public lines described and provided for in the contract with the city. Under Sec. 3 of the contract with the city, the city has the' right to order a public line extended to the hospital under the terms and conditions therein expressed. When that is done the hospital will be entitled to the six-cent rate, and until that is done there is no such privity of contract, between the water company and the defendants under the city contract, that would give the defendants any right to enforce the rates therein provided for. The city could not under its contract with the relator require the water company to furnish water to the defendants until it had ordered an extension of a public line to their institution and provided for the rental of the requisite number of hydrants as the contract provides — and if the" city cannot- do so neither can the defendants — to hold otherwise would be to permit the city through the defendants to violate the obligation of its contract with the water company and force it to maintain a private line over private property for public use, at public *105rates, "without paying the hydrant rental provided for in its contract. This is only one of many conditions contained in the contract between the city of St. Joseph and the water company and the rates prescribed • by this contract can only be taken advantage of by those inhabitants of the 'city who are located npon a public main laid and provided for under the terms and conditions of that contract.”
In our opinion that position is untenable for the reason that it is admitted that there are two water mains which supply water to the hospital. The first was constructed by the company, at the cost of the hospital, in the year 1885, and was laid partially in what was then a public street of the city, and partially in what, was a public highway of Buchanan county, but since the extension of the city limits it is now wholly within the public streets of the city of St. Joseph, and ■there are attached to it five fire hydrants, and it furnishes water for other private consumers. The other main is the one constructed by the company in pursuance to the contract here involved, and is laid partially on public property and partially on private. Neither of these mains was ordered to be constructed by an ordinance of the city of St. Joseph.
Upon that state of facts, counsel for relator, as previously stated, contends that because the city did not, by ordinance, direct the construction of either of *those mains the company is under no legal obligation to furnish water through either of them to any private consumer, the hospital included, at the rates specified in the contract between the city and the water company.
If the conclusion thus drawn from those facts by •counsel is sound, then in all cases where the company has voluntarily laid its mains in the public streets of the city, or across private property (which in all probability exceed in length those mains directed to be laid by ordinance), it conld lawfully refuse to supply the *106inhabitants of the city with water through them at the rates stipulated for in the contract between the city and company, then the latter could to that extent evade the schedule of prices so agreed to, and compel all such inhabitants individually to pay such prices for the water furnished through those mains, as they and the company might from time to time agree upon, and thereby practically nullify the contract between it and the city, as to the prices to be paid by them for the water used.
And as suggested by counsel fo.r respondents, “the pbligation of the water company under the contract to furnish all the inhabitants within the city limits with water at the rate specified in its franchise is absolute. It is not made contingent upon whether the water main is laid voluntarily or pursuant to an ordinance directing it to be laid. It may be that if the water company voluntarily lays mains, the city would be under no obligation to rent the hydrants erected by the company upon such mains, but further than that, the provision (said section 3) quoted from the contract between the city and the water company has no application to this case. ’ ’
"We, therefore, rule this question against relator.
IY. There are two or three other minor questions presented and discussed by counsel in their briefs; since, however, they can in no manner change the con-* elusions before reached, we deem it unnecessary to pass, upon them.
I am, therefore, of the opinion that the peremptory writ of mandamus should be denied, and that the alternative writ heretofore issued should be quashed and for naught held.