WATER COMPANY. A municipality has no implied power, from the mere fact of its creation, to engage in the business of supply ing its citizens water for pay. It cannot do so except by virtue of express legislative au thority. A municipality having such legisla tive authority, which has entered into a con tract with an existing water company to sup ply the citizehs with water, has thereby ex hausted its power and cannot subsequently erect its own water works for the same pur pose; White v. Meadville, 177 Pa. 643, .25 Atl. 695, 34 L. R. A. 567. But it was held that, although a contract between a water company and a city provided that no con tract or privilege would be granted to any other person or corporation to furnish water, the city was not precluded from building its own system ; Knoxville WY Co. v. Knoxville, 200 U. S. 23, 26 Sup. Ct. 224, 50 L. Ed. 353 ; following Helena W. W. Co. v. Helena, 195 U. S. 383, 25 Sup. Ct. 40, 49 L. Ed. 245; see Walla Walla v. Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341; Vicksburg v. Wla terworks Co., 202 U. S. 458, 26 Sup. Ct. 660, 50 L. Ed. 1102, 6 Ann. Cas. 253.
A municipal corporation furnishing water to its inhabitants acts in a private capacity; its relation is one of contract. Water rates are not taxes•; they are the price paid for a commodity ; Jolly v. Monaca Borough, 216 Pa. 345, 65 AU. 809 ; but their collection has been considered not a source of private prof it, but a mode of taxation ; Springfield F. & M. Ins. ,Co. v. Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667. Their regulation is a governmental power ; Owensboro v. Waterworks Co., 191 U. S. 358, 24 Sup. Ct. 82, 48 L. Ed. 217.
A water company under a statute which provides that water companies shall furnish pure water, will be enjoined from collecting water rents when it has supplied water ut terly unfit for domestic use or for steam purposes. The courts cannot decree that the company must obtain a supply of pure water. They can only enjoin it from col lecting water rents for impure water ; Brym er v. Water Co., 172 Pa. 489, 33 Atl. 707.
A water company which has a contract with a city to furnish water to extinguish fires is not liable to the owners of private property destroyed by fire through its failure to furnish water according to the contract; House v. Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532 ; there is no privity of contract between the parties to the action ; Nickerson v. Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Fitch v. Water Co., 139 Ind. 214, 37 N. E. 982, 47 Am. St.• Rep. 258; Wainwright v. Water Co., 78 Hun (N.
Y.) 146, 28 N. Y. Supp. 987 ; Beck v. Water Co., 11 Atl. 300 ; Foster v. Water Co., 8 Lea (Tenn.) 42; nor does the fact that the or dinance granting the franchise requires the company to supply the city and its inhabi tants with sufficient water to put out fires, or to maintain the water at a certain pres sure, create the necessary privity of con tract; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313 ; Eaton v. Waterworks Co., 37 Neb. 546, 56 N. W. 201, 21 L. R. A. 653, 40 Am. St. Rep. 510 ; Britton v. Water Works Co., 81 Wis. 48, 51 N. W. 84, 29 Am. St. Rep. 856; not even a statute, requiring the pipes to be kept charged at a certain pressure, will give the right of action ; 2 Exch. Div. 441, reversing 6 L. R. Exch. 404. Such owner cannot main tain an action, even though the city has raised by taxation a special fund, to which the plaintiff contributed, to pay for a suffi cient supply of water for use in case of fire ; Becker v. Keokuk Waterworks, 79 Ia. 419, 44 N. W. 694, 18 Am. St. Rep. 377 ; or though the citizens pay a special tax to the company, under its contract with the city; Howsmon v. Water Co., 119 Mo. 304, 24 S. W. 784, 23 L.' R. A. 146, 41 Am. St. Rep. 654. Nor has a municipality such an interest in the property destroyed as to give it a right of action, and the owner of the prop erty destroyed cannot maintain an action as assignee of the right of action of the munic ipality ; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 485. An action of tort will not lie ; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313. But it has been held that when the contract of a water company with the city declares that 'it is made, inter Win, for the protection of private property against fire, the owner of property which is taxed for water rent, and is de stroyed by fire through the failure of the company to supply a sufficient quantity of water, may, in his own name, sue the com pany on its contract with the city; Paducah Lumber Co. v. Water Supply Co., 89 Ky. 340, 12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536; in such case the company is liable; Mugge v. Waterworks Co., 52 Fla. 371, 42 South. 81, 6 L. R. A. (N. S.) 1171, 120 Am. St. Rep. 207 ; see 13 Harv. L. Rev. 226. That a taxpayer has no right of action against a water-supply company for failure to perform its contract with the municipality, see German Alliance Ins. Co. v. Water Supply Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000, where it is said a majority of the cases so hold.