The words "city and "village" as used in Chapter 17,118 are obviously used in a generic sense, referring to all the largest — as well as the smallest — municipalities.
I concur in most of what is said in the foregoing opinion, but I seriously doubt the power of the Legislature to authorize a municipality to mortgage a sewerage system in the ordinary sense of the word "mortgage"; that is, in the sense that the holders of the bonds or revenue certificates, so secured, could foreclose on and take possession of the sewer system, and stop the use of it, thus endangering the public health. Ordinarily, a municipality cannot contract away its governmental or police powers, such at least as those which are essential to the preservation of the public *Page 274
health, and the peace and order of the community, and I seriously doubt the power of the Legislature to authorize a municipality so to do. See 44 C.J. 73. But there are cases which hold that cities may make contracts which suspend the exercise of such powers for a limited time as a part of the consideration for the purchase of a public utility which it is authorized to buy, or to secure for the City and its inhabitants the establishment by others of a public utility service not presently enjoyed, 44 C.J. 74. But a sewerage system, at least in large and thickly populated towns and cities, is so essential to the public health, and the continuation of its operation may be such an imperative governmental duty as to override any contract which would frustrate the very purpose for which it was constructed. This might also become true of a water system. All contracts are made subject to the necessary and proper exercise of the police power. In this connection see State, ex rel. Ellis, v. A.C.L. Ry. Co.,
ELLIS, P.J., concurs.
