State ex rel. City Water Co. v. City of Kearney

Norval, J. An opinion was filed in this case October 7, 1896, the same being reported in 49 Neb., 325. On application of relator a rehearing was granted and the cause has been again submitted for adjudication. In 1886 the city of Kearney granted a franchise to the American Water-Works & Guarantee Company for the construction and operation of a system of water-works in [338] said city for a specified period, and at the same time contracted with said company for supplying water to the city during said period at a certain sum each for the use of 45 hydrants. The contract also reserved to the city the right to require an extension of the pipe lines at any time by the company and an increase in the number of hydrants, and fixed the sum to be paid as rental for the same. In pursuance of this provision, 106 additional hydrants were placed in 1888. The law in force governing cities of the class to which Kearney belonged at the time the franchise was granted authorized such city to contract for the furnishing of water to the municipality, but limited the levy of tax which could be imposed for the payment of water furnished the city “to an amount not exceeding five mills on the dollar in any one year,” etc. (Session Laws, 1885, p. 168, ch. 20, sec. 3; Compiled Statutes, 1885, ch. 14.) Subsequently, but before the 106 additional hydrants were put in, the legislature of 1887 so amended the law as to permit the levy of a tax not exceeding seven mills in any one year to pay for water supplied the city under contract. (Session Laws, 1887, p. 291, ch. 12.) A levy of five mills on the dollar on the present assessed valuation of the taxable property of the city of Kearney being insufficient to pay relator the amount due it annually for hydrant rentals, it was insisted on the former hearing that the writ should issue commanding a seven-mill levy, instead of five mills, at least to pay the rental on the 106 hydrants constructed in 1888. This contention was denied in the former decision for the reasons that the legislation of 1887 relating to the levy of taxes for water supply was not applicable, since it did not operate retrospectively, but prospectively merely, and that the amendment of 1887 could not apply to contracts for water rentals made prior thereto, as to do so would impair the obligation of contracts. Those propositions alone and their application to the case at bar we are now asked to consider. It is a well recognized rule in the construction of stat [339] utes that a law will not be given a retrospective operation, unless that intention»has been manifested by the most clear and unequivocal expression. (Smith v. Auditor-General, 20 Mich., 398; City of Oakland v. Whipple, 44 Cal., 305; In re Tuller, 79 Ill., 99; City of Chicago v. Rumsey, 87 Ill., 348; Tenney v. Foote, 95 Ill., 99; People v. Peacock, 98 Ill., 172; Fuller v. City of Grand Rapids, 40 Mich., 395; Borrman v. Schober, 18 Wis., 459.) We do not understand that counsel for relator question the soundness of the foregoing principle, but they deny that it has any application to the case in hand; that the levy of a seven-mill tax can be enforced without giving the amendment of 1887 a retrospective operation. This argument is predicated upon the fact that the system of water-works was extended, and the 106 additional hydrants were furnished, subsequent to the 1887 amendment, which in our view was and is wholly an unimportant feature of the case. The important and controlling consideration is, When was the contract entered into under which the enlargement of the system of water-works was made? The ordinance granting the franchise was passed in 1886, and it, in plain and unequivocal language, provided for the extension of the system and for the construction of additional hydrants whenever the city deemed the same necessary, and it likewise fixed the price that the city should pay for the same. The municipal authorities exercised this privilege reserved to the city, and the additional supply of water was furnished, it is true, after the amendment of 1887; nevertheless all the water was supplied the city, — that before, as well as the quantity after, 1887,— under and in pursuance of a single contract — one entered into before the amendment of 1887 was adopted. There is absolutely no language in said amendment from which any inference can be fairly drawn that it was the design of the legislature that its provisions should have any retroactive effect, or should apply to taxes levied in payment for water furnished under existing contracts. Had the 106 additional hydrants been put in under a new and [340] independent contract entered into after the amendment of 1887, then there might be force to the argument on behalf of the relator that said amendment controls the tax levy. But such was not the case, and hence a levy of five mills is the maximum limit that can be imposed, at least without further legislative authority. The conclusion reached makes it unnecessary to determine whether it is within the power of the legislature to authorize an increased levy of taxes to pay for water supplied under existing contracts. The question does not arise in the case, and the language employed in the former opinion upon that subject is mere obiter, and is accordingly withdrawn. The judgment heretofore entered herein is adhered to. Former judgment sustained.