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Opinion of the Court.

There is a distinction between a debt and a contract for a future indebtedness to be incurred, provided the contracting party perform the agreement out of which the debt may arise. There is also a distinction between the latter case and one where an absolute debt is created at once, as by the issue of railway bonds, or for the erection of a public improvement, though such debt be payable in the future by instalments. In the one case the indebtedness is not created until the consideration has been furnished; in the other the debt is created at once, the time of payment being only postponed.

In the case under consideration the annual rental did not become an indebtedness within the meaning of the charter until the water appropriate to that year had been furnished. If the company had failed to furnish it, the rental would not have been payable at all, and while the original contract provided for the creation of an indebtedness, it was only upon condition that the company performed its own obligation. Wood v. Partridge, 11 Mass. 488, 493. A different construction might be disastrous to the interests of the city, since it is obviously debarred from purchasing or establishing a plant of its own, exceeding in value the limited amount, and is forced to contract with some company which is willing to incur the large expense necessary in erecting water works upon the faith of the city paying its annual rentals. Smith v. Dedham, 144 Mass. 177; Crowder v. Sullivan, 128 Indiana, 486; Saleno v. Neosho, 127 Missouri, 627; Valparaiso v. Gardner, 97 Indiana, 1; New Orleans Gas Light Co. v. New Orleans, 42 La. Ann. 188; Merrill Railway & Lighting Co. v. Merrill, 80 Wisconsin, 358; Weston v. Syracuse, 17 N. Y. 110; East St. Louis v. East St. Louis Lighting Co., 98 Illinois, 415; Grant v. Davenport, 36 Iowa, 396; Lott v. Waycross, 84 Georgia, 681; Burlington Water Co. v. Woodward, 49 Iowa, 58.

The obvious purpose of limitations of this kind in municipal charters is to prevent the improvident contracting of debts for other than the ordinary current expenses of the municipality. It certainly has no reference to debts incurred for the salaries of municipal officers, members of the fire and police departments, school teachers or other salaried employés to whom

Opinion of the Court.

the city necessarily becomes indebted in the ordinary conduct of municipal affairs, and for the discharge of which money is annually raised by taxation. For all purposes necessary to the exercise of their corporate powers they are at liberty to make contracts regardless of the statutory limitation, provided, at least, that the amount to be raised each year does not exceed the indebtedness allowed by the charter. Among these purposes is the prevention of fires, the purchase of fire engines, the pay of firemen and the supply of water by the payment of annual rentals therefor.

It is true that in the case of Lake County v. Rollins, 130 U. S. 662, it was held by this court that a similar provision in the constitution of Colorado was an absolute limitation upon the power to contract any and all indebtedness, including warrants used for county expenses such as for witness and jurors' fees, election costs, charges for board of prisoners, county treasurers' commissions, etc.; but the case is readily distinguishable from the one under consideration. That was a suit against a county upon a large number of warrants for current expenses, the defence being a want of authority on the part of the county commissioners to issue warrants which had been put forth after the limit of indebtedness had been reached and even exceeded. They were held to be void. The case is authority for the proposition that if the annual rentals, payable in this case, with the other expenses, exceeded the limit of indebtedness, the transaction would be void; but, as it appears that the limit of indebtedness was $50,000 and the amount of the city debt but $16,000, it is clear that the payment of an annual rental of but $1500 would be unobjectionable upon this ground. If such annual rentals exceeded the limit of indebtedness a different question would be presented.

8. Further objection is made to this contract upon the ground that it is violative of a general statute of the Territory of Washington, enacted December 1, 1881, authorizing cities, etc., to provide for a supply of water. By the first section of this act all cities are authorized to contract for a term not exceeding twenty-five years with corporations for a supply of water, but section 2 states that before any such contract

Opinion of the Court.

shall be entered into, the terms of the proposed contract shall be submitted to a vote of the taxpayers at a special election to be called by the council after a notice of three weeks. no such election was held to ratify the contract in this case, it is insisted that the city council was never authorized to enter into it.

We are of opinion, however, that the general act of 1881 was, so far as it applied to the city of Walla Walla, superseded by the charter of November 28, 1883, which provided that the city might enter into contracts for the purpose of supplying its inhabitants with water without any further requirement that an election should be held to ratify such contract. That no such ratification by the electors was intended is also evident from section 11 of the charter, which enacts that no water works shall be erected by the city without a vote of a majority of its freeholders. The fact that such ratification was required where water works were to be erected, and that no mention was made of a vote where the city contracted with a corporation for such purpose, clearly evinces an intent on the part of the legislature to permit the city to make a contract for a limited term without appealing to the people for their assent. While the special act is silent with reference to the ratification of contracts to supply water, we think the maxim expressio unius est exclusio alterius is applicable, and that it was clearly the intention of the legislature to supersede the general law in that particular, leaving the general law to stand where it is proposed that the city shall erect and maintain water works of its own.

9. Finally, it is argued, that upon the facts of this case it clearly appears that the plaintiff company has failed to comply with its contract to furnish an ample supply of good and wholesome water; that the pressure in the mains was not sufficient for fire protection, or for domestic purposes and irrigation of lawns; that the pressure was not a sufficient supply for satisfactory use in the second stories of buildings; that several of the city additions are higher than the reservoir, and cannot be supplied from them, etc.

We are of opinion, however, that these facts cannot be set up

Opinion of the Court.

in defence to this bill. By the express provision of section 7 of the contract ordinance, it was made voidable by the city of Walla Walla so far as it required the payment of money, upon the judgment of a court of competent jurisdiction, whenever there should be a substantial failure of supply, or a failure on the part of the company to keep or perform any agreement on its part specified in the contract, and until "so avoided" the city would not erect water works of its own. Had the city failed to pay its quarterly rentals, we should have no doubt that in an action to recover the same it might set up the failure of the company to perform its contract. Perhaps it might itself institute an action for that purpose, but we do not think it within the power of the city to constitute itself the judge, and to proceed to erect water works of its own upon the theory that the company had failed to carry out its contract, without, in the language of section 7, obtaining the judgment of a court of competent jurisdiction to that effect. As the section provides the manner in which the failure of the company shall be legally established, we think the city was bound to pursue this course before taking steps to erect water works of its own. We have already held that so long as the contract remained in force the city had no right to establish water works, but under section 7 of the ordinance and contract the failure of the company to furnish a sufficient supply did not of itself avoid the contract. It rendered the contract voidable, not void. The city was bound to procure its nullity before the courts before it could treat it as void. Whether if a sudden emergency arose, requiring immediate action on the part of the city to procure a further supply, or to preserve the health of its inhabitants, a preliminary avoidance of the contract would be necessary, is a question not involved in this case, and upon which we express no opinion. There was no pretence that the water was impure, and the evidence was conflicting upon the sufficiency of the supply.

Upon the whole case, we are of opinion that the decree of the Circuit Court must be

Affirmed.

Statement of the Case.

ANDERSEN v. TREAT.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.

No. 415. Argued November 8, 1898. Decided November 14, 1898.

The principle that a writ of habeas corpus cannot be made use of as a writ of error is again announced and affirmed.

Where a petition for a writ of habeas corpus is founded upon judicial proceedings which are claimed to be void, and those proceedings and the records thereof are insufficiently set forth in the petition, the originals may be referred to on the hearing.

It appearing on examination of the original record and proceedings that the contention of the petitioner as to the facts is not supported by them, this case comes within the general rule that the judgment of a court having jurisdiction of the offence charged and of the party charged with its commission is not open to collateral attack; and it is held that the District Court could not have done otherwise than deny the writ, and its order in that respect is affirmed, and the mandate ordered to issue at

once.

JOHN Andersen was indicted in the Circuit Court of the United States for the Eastern District of Virginia at the November term thereof, A.D. 1897, and, December 23, 1897, convicted of the murder, on August 6, 1897, on the high seas, of William Wallace Saunders, mate of the American vessel Olive Pecker, and sentenced to death. The case was brought to this court on error and the judgment was affirmed May 9, 1898. 170 U. S. 481. The mandate having gone down, execution of the sentence was fixed for August 26, 1898. On that day, (II. G. Miller and P. J. Morris assuming to act as his counsel,) Andersen filed a petition in the District Court of the United States for the Eastern District of Virginia, praying for a writ of habeas corpus, on the ground that he was held in custody for execution "in violation of the laws and the Constitution of the United States of America," in that he had been deprived "of the free exercise of his rights to be represented by counsel, in accordance with article 6 of the Amendments of the Constitution of the United States."

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