swer, on or before October 24, 1897, that portion of the second amended complaint which applies to the schedule of water rates, with leave to plead as it shall be advised within 10 days from date as to the other parts of the second amended complaint. From the date of this order the trial proceeded upon the theory that there were three causes of action stated in the complaint, involving, respectively, the causes of action above set forth, to wit, price, purity, and pressure.

The defendant filed its answer October 23, 1897, to the second amended complaint relating to water rates, by which answer the material allegations of the second amended complaint as to water rates were put in issue, except such allegations as might be denominated formal. In passing, it might be well to state that the allegations of the second amended complaint relating to the failure of defendant to comply with the requirements of section 5 of the ordinance were to the effect that the defendant had wantonly failed to fix a schedule or rates for private consumers equivalent to the average rate prevailing in the cities of Chicago, St. Louis, and Cincinnati, as required by the terms of section 5 of the ordinance and the action of the city council of the city of Denver, and that the defendant had broken its obligations, duties, and promises assumed by it under said section of the ordinance. In response to the allegations of the second amended complaint that the defendant had failed and refused to comply with the requirements of section 5, while the answer denied that it had failed or refused to comply with the requirements of said section, nowhere does it affirmatively appear in the answer by any allegation that it had complied with the requirements of said section. On the contrary, it affirmatively appears from the answer that the defendant had not complied with such requirements, as a careful reading of the answer will disclose, and as is shown by the last paragraph of defendant's answer, which is as follows: "Defendant alleges, upon information and belief, that it is now collecting and receiving less, and that the schedule of November 1, 1895, fixes and provides for lower rates and charges than the said defendant is entitled to fix and collect under the terms and provisions of section 5 of the contract of April 10, 1890, and that it will be found, upon an inspection of the schedule of rates alleged by the plaintiff to prevail in the said cities of Chicago, Cincinnati, and St. Louis, that an exact average of item by item therein contained, or of the items contained in Schedule A, attached to the contract of April 10, 1890, or of the rates contained in the semiannual schedule of rates of November 1, 1895, cannot be determined or ascertained, but that the said defendant is charging and collecting, and in its said November 1st schedule of rates provided for the collection of, rates less than the equivalent of the average of the rates prevailing in said three cities for the same service, and

that it has been moved and induced to make such rates, reduced far below that which it could be required to make or charge. because it has desired to escape criticism and attack of a public and political nature, and that it might be left to conduct its business, to the end of discharging all its obligations to the public and its consumers, without being embarrassed and harassed by false and unjust costs, charges, and denunciations, and that it believes and alleges that this honorable court will ascertain and determine that it has done more in the way of reducing rates for private consumers in the city of Denver than it can or should be required to do, in view of the character and nature of the service rendered by it to said private consumers, and the nature and character of the service rendered in each of the said cities of Chicago, Cincinnati, and St. Louis to the private consumers therein. And defendant further alleges that the rates charged and demanded by it are reasonable rates to be charged and demanded for the services rendered by it in supplying water to private consumers."

October 27, 1897, plaintiff filed its replication to the answer of defendant, which was a general denial of the new matter contained in the answer. In the foregoing statement no attempt has been made to embody in this opinion anything more than the briefest possible statement of the issue presented by the pleadings upon the alleged failure of defendant to comply with the requirements of section 5 of the ordinance. Up to this point the pleadings, motions, demurrers, etc., with the court's ruling thereon, occupy 179 pages of the printed abstract. If the issue presented by the pleadings has been clearly stated, no necessity exists for embodying an abstract of the pleadings herein, and no beneficial result would be gained.

As to the errors assigned by plaintiff upon the rulings of the court upon the motions of defendant to make more specific, definite, and certain the allegations of the amended complaint, and the motion to strike therefrom certain portions thereof for the reason that they were immaterial and irrelevant, it is sufficient to say that, under the well-settled rule of this jurisdiction, rulings of the court upon such motions are very largely within the judicial discretion of the trial court, and that, unless it clearly appears from the record that the court below abused such judicial discretion, this court will not interfere with the same. From a careful consideration of the record in this case, this court is unable to say that there was any such abuse by the court below of the judicial discretion vested in it in its rulings upon these various motions as resulted in prejudicial error to the plaintiff. In this connection it might be well to state that it has been a laborious task to connect the motions as they appear in the printed abstract of the record with the pleadings to which such motions are addressed, for the reason that the motions as they ap

pear in the record are in the usual form of such motions, referring to the pleadings by page and line as they were filed in the court below, whereas, in the printed abstract furnished this court, the paging is entirely different. We would suggest that, where counsel seriously rely upon the errors alleged to have been committed by the court in such rulings, they call the attention of this court to the precise language to which the motions are addressed, by quoting the same in their briefs, thereby relieving the court of much unnecessary labor. These remarks are especially pertinent to the record proper in this case, which occupies 228 pages of the printed abstract.

We have examined the argument of counsel for plaintiff with a great deal of care, and are of the opinion that he has failed to call the court's attention to any ruling made by the court below which in any wise appears to us to be an unwarranted exercise of the court's authority in matters of this nature. On the contrary, we believe tha the orders of the court were warranted, and tended to simplify the issues, expedite the trial, and did not deprive the plaintiff of any of its rights. After the issues had been framed as hereinbefore stated, the hearing of testimony proceeded before the court without a jury through several months, and on the 9th day of February, 1898, the court rendered its opinion and made its findings upon what we shall designate the first cause of action. The opinion and findings of the court occupy 44 pages of the printed supplemental abstract of defendant. It will be unnecessary to set forth the opinion of the court in this opinion. Such portions, however, as serve to indicate the process of reasoning, based upon the evidence in the case. adopted by the court below in arriving at its conclusions, will be from time to time quoted herein as this opinion proceeds.

The court in its opinion promulgated a schedule of rates to be adopted by the defendant for water furnished by it to the private consumers of the city of Denver. This schedule, so far as the items therein are concerned, was based upon "Schedule A." which was a part of the ordinance of 1890. We find from the record that the items of service included within "Schedule A," exclusive of irrigation rates and meter rates, were 107, that the leaflet schedule of rates contained 142 items, and that the schedule of rates promulgated by the court contained 135 items. This increase of items in the court schedule over the items contained in "Schedule A❞ seems to have been warranted in the opinion of the court by the fact, which appeared in evidence, that other and different uses of water in the city of Denver had grown up since the adoption of the ordinance of 1890. The above statement is made for the purpose of showing the number of items of service concerning which testimony was introduced at the trial, and upon which.,

under the issues framed, the court was re quired to fix and establish a schedule of rates. It also indicates to some extent the voluminous character of the evidence introduced at the trial.

The findings of the court were as follows: "(1) That the schedule of annual water rates established this 9th day of February, A. D. 1898, shall be payable semiannually in advance on the 1st day of May and November, respectively, A. D. 1898, and on the same days of each year thereafter. (2) That this schedule of rates for private consumers of water in Denver has been obtained by adding together the prevailing minimum rates in Chicago, St. Louis, and Cincinnati, and dividing the sum thus obtained by three, the number of cities contributing; but whenever either of the said three cities have no prevailing rates, and thereby fail to contribute a price or rate, then we have allowed as the rate to be hereafter charged whatever the rate was for such service in Denver on the 1st day of November, A. D. 1895. (3) That the prevailing rates referred to in Ordinance No. 44 of the Series of 1890, in section 5, and which have been taken in determining the rate to be charged in Denver, mean and are held to be the present existing minimum rates charged in Chicago, St. Louis, and Cincinnati for any specific service. (4) Minimum rate means the lowest price given or calculated in each of the three cities for a specified thing, being, in Chicago, a frontage of 12 feet; in St. Louis, the least desirable location for any kind of business; and, in Cincinnati, the lowest charge for area space, 500 square feet or less, accompanied by the minimum use of water. (5) That the question of discount is a matter of private regulation, a rule of the water departments in Chicago and Cincinnati, and is not found in St. Louis. Nowhere is a discount a part of the price, as appears from and is set forth in the water rates of either of these cities. (6) That the rules and regulations of the defendant company, of which complaint has been entered, are not harsh, oppressive, nor unreasonable to that degree or extent as would warrant a court in entering an order decreeing that such rules and regulations be changed, modified, or annulled. We find the same rules, of like severity, in each of the three cities, and abundant legal authorities in different states upholding their enforcement. (7) That the prevailing rates at this date in Chicago, St. Louis, and Cincinnati are not the rates which prevailed in these cities in October, 1895, when a demand was made by the city council, nor on November 1, 1895, when the defendant company fixed its schedule of rates as set forth in its leaflet. (8) That the evidence fails to show that the defendant wholly, or at all, wantonly or otherwise, failed, in October. A. D. 1895, to make a schedule of rates which was not the equivalent of the average prevailing rate then in force in the three cities. (9)

were in some capacity connected with the water departments of those cities, who testified in support of the testimony which had been adduced from the plaintiff's accountant, and also as to the manner and method of arriving at the rates charged to private consumers by the water departments of the several cities. At the very outset of the investigation it was developed that there existed in each of the three cities mentioned a system of determining rates charged private consumers, based upon the schedule of rates found in the ordinances, which differed from the system prevailing in the other cities, and also differed from the system prevailing in the city of Denver. To illustrate: The testimony shows that in the city of Chicago the system prevails of charging what is known as a "frontage rate" against every building which fronts upon a street through which, or along which, a water main has been laid. This "frontage rate" is in addition to the charges made for instruments of service which may be used in the building. It is based upon the minimum of 12 feet front of a one-story building, and increases as the frontage increases and the number of stories in the building increases. In St. Louis the rate for water is determined by the location of the water consumers; the least desirable location being charged the lowest rate, and the most desirable location being charged the highest rate. In Cincinnati the charge is regulated by the space occupied by the consumer, upon a basis of 500 square feet for the minimum charge. From the above statement it will be readily seen that owing to the radically different manner in which charges are made under the ordinances and schedules of the three cities, it is absolutely impossible to arrive at an average rate for the three cities, for the reason that it is absolutely impossible to average frontage, locality, and space.

As the taking of testimony progressed, it developed that in one or more of the three cities there was no charge whatever for a large number of items of service included in "Schedule A." The court in finding 2 said: "That this schedule of rates for private consumers of water in Denver has been obtained by adding together the prevailing minimum rates in Chicago, St. Louis, and Cincinnati, and dividing the sum thus obtained by three, the number of cities contributing; but whenever either of the said three cities have no prevailing rates, and thereby fail to contribute a price or rate, then we have allowed as the rate to be hereafter charged whatever the rate was for such service in Denver on the 1st day of November, A. D. 1895." If the court, in arriving at the schedule of rates which it promulgated, had strictly adhered to the rule announced in the above finding, no rate could have been arrived at for more than two-thirds of the items in the schedule adopted by the court, for the reason that in one or more of the schedules of the three cities mentioned no rate was fixed for more than two

thirds of the items of service covered by the schedule promulgated by the court. It is possible that, if the testimony had disclosed that no rate was fixed in one or more of the cities for a few only of the items included within the court's schedule, the rule adopted by the court above stated might have been unobjectionable upon the theory that a substantial compliance with the terms of a contract is all which the law requires. If the court had adhered to the rule announced, it would have resulted in leaving the schedule of rates adopted by the company in 1895 in full force and effect as to more than twothirds of the rates fixed by such schedule, and in our opinion must have resulted in the court arriving at the conclusion that it was absolutely impossible to determine the average rate prevailing in the three cities mentioned for the same service, and therefore impossible to enforce the provisions of the contract existing between the city and the company, in so far as the requirements of section 5 of the ordinance are concerned.

To escape this conclusion, however, over the objection of defendant, testimony was introduced which was an attempt to establish a rate in one or more of the three cities mentioned where no such rate prevailed. In other words, the court allowed testimony to be introduced, over the objection of defendant, for the purpose of establishing rates for items of service in the three cities where no rate prevailed, and therefrom computed an average, which average appears in the schedule promulgated by the court in more than two-thirds of the items therein contained. If, under the testimony, it had been possible to thus supply the missing rates in one or more of the three cities with definiteness and certainty, such method of computation might not have been objectionable; but the witnesses who testified upon this point, from the necessities of the case, were compelled to assume the existence of certain facts in many instances which were not supported by the evidence. When this method of computation was called in question by the defendant, by objections to the testimony and upon cross-examination, the witnesses testified that the above assumptions were made because they were fair, just, and reasonable, thereby introducing into the case questions which were not in any manner presented by the issue. The court was not called upon, by any issue presented by the pleadings, to determine a fair, just, or reasonable rate for the private consumers of the city of Denver. It was its duty, and its duty only, under the issue presented, to determine, if possible. the average rate prevailing for the same service in the three cities mentioned. Anything beyond this was outside of and beyond any issue in the case. The admission of such testimony was without justification upon any principle with which we are familiar. Without such testimony it would have been, and was, absolutely impossible for the court to arrive at a schedule of rates for the

private consumers of the city of Denver required by section 5 of the ordinance.

This sort of testimony pervades the record, and, as above stated, more than twothirds of the rates established by the court in the schedule promulgated by it are based upon such testimony, and such testimony only. The cross-examination of plaintiff's witnesses by defendant's counsel emphasized in a marked degree the incompetency of the evidence upon which the decree of the court was largely based. That this method of computation and calculation was adopted by the court is manifest from finding 4: "Minimum rate means the lowest price given or calculated in each of the three cities for specified things," etc. In the schedule of rates promulgated by the court the minimum and the maximum rate is established for 36 items. In every instance the maximum rate thus established is identically the same as that set forth in the schedule adopted by the company in October, 1895, and known as the "leaflet schedule." The testimony in the case has been examined with the utmost care, and we fail to find any testimony whatever in support of any maximum rate promulgated by the court in its schedule. That the court adopted the maximum rate of the leaflet schedule, without any evidence to justify such action, is conclusively shown by the following extract from the court's opinion: "The following table will therefore be held to be the schedule of minimum and maximum rates fixed for private consumers of water in the city of Denver, which rates we find to be equivalent to the average minimum rate prevailing in the cities of Chicago, St. Louis, and Cincinnati for the same service. The maximum rate, where a maximum is given, is based upon that found in Schedule A, with the reduction therefor found in the leaflet." In our view, the maximum rate which the water company may charge is of more importance to the consumer than the minimum rate, for the reason that under the findings of the court (paragraph 4) the minimum rate established "means the lowest price given or calculated in each of the three cities for a specified thing, being, in Chicago, a frontage of 12 feet; in St. Louis, the least desirable location for any kind of business; and, in Cincinnati, the lowest charge for area space, 500 square feet or less, accompanied by the minimum use of water." the opinion of the court it is said: "There can be no fixed rule in determining a maximum or intermediate charge. Much must depend on the integrity of the party applicant as to the uses for which he says he desires the water; and likewise much must depend on the fairness of the company supplying the water as to its charges." If, as the court found in paragraph 4 above quoted, the minimum rate is based upon the frontage, locality, and space, accompanied by the minimum use, all or either of those elements may be applied by the company in determin

ing when the service rendered should be paid for at the minimum rate, and the maximum or intermediary rate is left entirely to the discretion and fairness of the company. In other words, the company may not go below the minimum rate established by the court's schedule; but, in fixing a maximum rate for any service to a private consumer, it may go to the limit allowed by the court, thus consigning the private consumers to the mercy and fairness of the company.

We do not wish to be understood as intimating that the company would abuse the privilege granted it by the court, but simply announce the belief that, if the testimony warranted the above findings of the court, then the testimony was insufficient to enable the court to establish a schedule of rates, both minimum and maximum, which would be a compliance with the requirements of section 5 of the ordinance. The brief of counsel for defendant is replete with statements to the effect that plaintiff failed to prove its case. To quote: "It cannot be claimed that any evidence has been offered, or that any allegation has been made, to fix a schedule of rates. All that, as we were frequently admonished, which was attempted to be done, was to fix a minimum rate for certain items, leaving the remainder of the schedule untouched in every particular whatever. Was that making a case? Was that following the allegations of the complaint? Was that showing a right to equitable relief, or to any kind of relief? And yet the court was legally compelled to broadly state: "These are the matters which were necessary to have been fully established by evidence, and these are the matters concerning which there has been an utter and absolute failure by the plaintiff.'" Many other quotations from defendant's brief of like import might be made. In fact, the whole burden of defendant's brief and argument is to the effect that the company, having adopted a schedule of rates which was less than the contract called for, had kept, not only the letter, but the spirit, of the contract. We believe that this contention of defendant is amply sustained by the evidence in this case, as a comparison of the two schedules shows that the rates established by the court for nearly one-half of the items in its schedule are higher than the rates established by the company; but under the issue presented by the pleadings such contention cannot avail, for the reason that there was no question of the justice or fairness or reasonableness of the schedule of rates adopted by the company in 1895 presented to the court below. sole question was a determination of a schedule of rates which should be equivalent to the average rate prevailing in the three cities mentioned for the same service. The theory upon which defendant tried the case seems to have been that, unless it could be shown that the schedule adopted by it in 1895 was wrong, such schedule should stand.

The