In Error to the Circuit Court of the United States for the Central Division of the District of Idaho.

Action by Boise City, Idaho, against the Boise Artesian Hot & Cold Water Company, Limited. Judgment for defendant, and plaintiff brings error.

The plaintiff in error was plaintiff in the court below, where it brought the action to recover from the defendant certain license fees imposed by one of its ordinances, enacted in 1906. The facts of the case are undisputed. They show, among other things, that the plaintiff in error is a municipal corporation operating under a special charter granted by the Legislature of the territory of Idaho during the year 1863, and subsequent amendments thereto; that on the 3d day of October, 1889, the city enacted an ordinance entitled “An ordinance granting Eastman, Brothers the right to lay water pipes in Boise Oity,” the only two sections of which ordinance are as follows:

“Section 1. H. B. Eastman and B. M. Eastman, and their successors in interest in their waterworks for the supplying of mountain water to the residents of Boise Oity, are hereby authorized to lay and repair their water pipes in, through, and along and across the streets and alleys of Boise City, under the surface thereof; but they shail at all times restore and leave all streets and alleys in, through, along, and across which they may lay such pipes, in as good condition as they shall find the same, and shall at all times promptly repair all damage done by them or their pipes, or by water escaping therefrom.

“See. 2. This ordinance shall take effect from and after its passage and approval.” Approved October 3, 1889.

The Artesian Water & Land Improvement Company having become organized as a corporation under the laws of the state of Idaho for the purpose of supplying Boise City and its inhabitants with water for public and family use, the city, on the 10th day of July, 1890, enacted an ordinance entitled “An ordinance granting to the Artesian Water & Land Improvement Company the right to lay water pipes in Boise City,” the three sections of which are as follows:

“Section 1. The privilege of laying down and maintaining water pipes in the streets and alleys now laid out or hereafter to be laid out and dedicated in Boise City, Idaho, Is hereby granted to the Artesian Water & Land Improvement Company, its successors or assigns.

“See. 2. All water pipes placed in said streets and alleys shall be laid down in a workmanlike'manner, and all excavations made for pipes shall be properly filled, and with all convenient speed.

“Sec. 3. Tbi« ordinance shall fake effect and be in force,from and after its passage.” Approved duly 10, 1800.

Immediately after the enactment, of the ordinance in their favor, Eastman Bros, proceeded to construct a system of waterworks, consisting of artesian wells and reservoirs, and laid mains and pipes under and along the streecs and alleys of Boise City, and to supply the city and its inhabitants with pure mountain water, in accordance with that ordinance, expending in such construction over $20,000 to the lime they sold their interest therein to an Idaho corporation called the Artesian Hot & Cold Water Company,,Limited, hereinafter mentioned.

Immediately after the enactment of the ordinance in favor of the Artesian Water & Band Improvement Company, it proceeded to sink artesian wells, construct reservoirs, and lay pipes under and along the streets of the city and to supply the city and its inhabitants with pure, fresh water for municipal, domestic, and irrigation purposes, under and pursuant to the aforesaid ordinance in its favor, expending in the construction, extension, and improvement of its waterworks more than 850.000 up to the time of its sale thereof to the aforesaid Artesian Hot & Cold Water Company, Limited, as hereinafter mentioned.

The Artesian Hot & Cold Wafer Company. Limited, was organized under the laws of the state of Idaho, and was authorized by its articles of incorporation to supply the plaintiff in error and its inhabitants with water for municipal and domestic uses, and to purchase and acquire the waterworks, wells, reservoirs, pipe lines, properties, rights, and franchises of both the Eastman Bros., and the Artesian Water & Land Improvement Company, which purchase was effected on the 28th day of March, .1891.

The defendant in error is a corporation organized and existing under the laws of the state of AVest ATrginia, with its principal place of business at Boise City, Ada county. Idaho. Us articles of incorporation authorize it to carry on “a waterworks system, and to sell and rent water to the inhabitants of the said Boise City and to lake, purchase, acquire, hold, operate, and maintain rights and privileges of water companies, associations, or corporations. and to acquire, use. own, and operate all properties, franchises, rights, claims, privileges, and everything belonging to that certain corporation known as the Artesian Hot & Cold AYater Company, Limited, and to be the successor in every respect of said corporation.”

On the 28th day of August, 1901. the defendant, in error acquired by purchase from the Artesian Hot & Cold Water Company, Limited, all of its rights in and to both of the wafer systems mentioned, and all of its said waters, as well as all of the rights and privileges granted by the aforesaid ordinances.

The record further shows: That between the 28th day of March, 1891, and the 28lh day of August, 1.901, the Artesian Hot & Gold Water Company, Limited, supplied the city and its inhabitants with pure, fresh water for municipal, domestic, and other useful purposes, and that during that period the population of the city increased from about 3,000 to about 0,000 people, the area of the city being enlarged by the laying out, arid platting of additions thereto, which wore settled upon and occupied, and during which period the Artesian Hot & Cold AVnter Company, with the city’s knowledge and consent. exvended its pipe linos under the streets and alleys of The city from time to time, and supplied such additions with water to meet the demands upon it, and laid about 15 miles of additional pipe, constructed two wells and one reservoir for cold water, and erected a large steam pumping plant with a capacity of 3,000,000 gallons a day, aggregating in cost more than .$192.000. That at all times since the 28th day of August, 1901, the defendant in error has supplied the city and its inhabitants “by virtue of said ordinance and laws, and with plaintiff’s knowledge, acquiescence, and consent, pure fresh wafer for municipal, domestic, and other useful purposes, in accordance with said ordinances, and in full compliance therewith, and with said laws of Tdaho. That since said last-named date the population of Boise City has increased from about 6,000 to over 25.000 inhabitants, and this defendant, with plaintiff's knowledge, acquiescence, and consent, has extended its cold water system to meet the growth of said city, and has laid over 30 miles of additional mains under tlie streets and alleys of said city, constructed numerous wells and galleries, acquired by condemnation proceedings additional land for the development of an increased water- supply, installed four electric pumps of an aggregate capacity of six and one-half million gallons of water per day, and has expended in the improvement and extension of said cold water system an additional sum of more than $140,000. That the defendant and its predecessors in interest in and to its waterworks system are now and ever since the Sd day of October, 1889, have been using the streets and alleys of said Boise City in the sale and delivery of water to the plaintiff, and residents and inhabitants of Boise City, through the water mains of said waterworks systems, and in the laying and repairing of said water pipes connected with said waterworks systems.”

On the 7th day of June, 1906, the plaintiff in error enacted an ordinance, the first and fourth sections of which are as follows:

“Section 1. That the said Boise Artesian Hot & Gold Water Company, a private corporation organized and existing under and by virtue of the laws of the state of West Virginia, the successors in interest of the said H. B. Eastman and B. M. Eastman in and to said waterworks now being operated under said license granted by said ordinance of October 3d, 1889, in said Boise City, are hereby required to hereafter pay to said Boise City on the first day of each and every month, a monthly license fee of $300.00, for the privilege granted by said ordinance of October 3d. 1889, to lay and repair water pipes in the streets and alleys of said city through which water is being furnished to the inhabitants of said Boise City by said company. * * *

“Sec. 4. That nothing in this ordinance shall be construed or understood as granting any privilege or authority for any other term than that provided for in the aforesaid ordinance of October 3d, 1889.”

The action was brought to recover the aggregate amount of three years’ license fees so imposed, and which the defendant refused to pay after demand made.

The court below held that the ordinance of July 10, 1S90, to the Artesian Water & Band Improvement Company, its successors and assigns, having been accepted and acted upon by the grantee and its successors, created a franchise for 50 years, and that the imposition of the license tax provided for by the ordinance of June 7, 1906, was an impairment of such franchise and therefore void. Judgment followed accordingly, and the city brought this writ of error.