173 Mo. App. 590 | Mo. Ct. App. | 1913
—This is an appeal from a judgment of the circuit court of Jasper county, Missouri, acquitting and discharging the defendant under a prosecution by the city of Joplin for a violation of an ordinance of that city entitled, “An ordinance requiring all corporations holding franchises in the city of Joplin, for the distribution of gas and water, to bear the expense of installing and keeping in repair service pipes from the mains of such companies to property line. ” The case was submitted to the trial court on an agreed, statement of facts substantially as follows: That the defendant was at all times mentioned in the information filed in this cause, superintendent of the Joplin Waterworks Company; that the Joplin Waterworks Company
The ordinances referred to are in evidence and show that in 1880 the city of Joplin granted to one Paul B. Perkins, his associates and assigns, a franchise to construct and operate a waterworks system to supply the city and its inhabitants with water at a schedule of rates therein prescribed. This franchise was for twenty years. The Joplin Waterworks Company succeeded to his rights under this ordinance and, in 1904, the city, by a second or supplementary ordinance, extended this franchise to that company for another period of twenty years with a new and somewhat lower schedule of water rates. Treating these ordinances as one and as constituting defendant’s franchise contract, we find that the city contracted with said company for supplying with water the streets, alleys and public places of the city and its inhabitants. The water company is authorized to construct and operate a system of water
The ordinance of the city for a violation of which the defendant is being prosecuted was enacted in March, 1910, and provides the following: “All corporations now holding or which may hereafter hold franchises in the city of Joplin, Missouri, giving authority to such company to distribute gas and water throughout such city, be and are hereby required to install and keep in repair at their own expense all service pipes for the conveyance of gas and water from the mains of such company to the property line, of all consumers desiring to connect with the mains of said company. [Sec. 2.] Any person being the president, vice-president, secretary, director or agent, for any such corporation, being the owner and holder of any such franchise, who shall neglect, refuse and fail to comply with the provisions of this ordinance, shall be deemed guilty of misdemeanor, and on conviction thereof, shall be punished by a fine of not less than $10 and not more than $100 for each offense.”
That the State has the general power to regulate rates to be charged by public service corporations like this one, operating under a franchise granted either by the State or a municipal corporation, cannot be ques-. tioned. [City of St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. 197; State ex rel. v. Telephone Co., 189 Mo. 83, 99, 88 S. W. 41.] These authorities also hold that such power may be delegated by the State, in part at least, to municipal corporations to be exercised over public service corporations chartered by and operating within their limits. This seems to- have been accomplished by the legislative Act of 1907, p. 119, now section 9568, et seq., Revised Statutes 1909. It may be seriously questioned whether this act was intended to and does apply to rates fixed by an ordinance which is a contract between the city and water company as well as a franchise to such company to use its streets for a quasi public purpose and, if it does so apply, whether it would not be void under the constitutional inhibition as impairing the obligations of such contract. This court will not attempt to discuss or settle that question. It is not necessary to do so, as it seems plain that the ordinance in question merely requiring the water company to install and keep in repair at its own expense all service pipes for conveying water from the mains to the property line is not an' ordinance regulating water rates. It is'only indirectly and in the remotest degree that this ordinance can be said to affect rates. The appellant’s reasoning is that
In Ex parte Goodrich, 160 Cal. 410, 117 Pac. 451, 25 Am. & Eng. Ann. Cas., 56, the city of Los Angeles had exercised its-power to fix rates to be charged by the electric light company, by fixing a schedule of rates to be charged by such companies at a time when it was the custom of all companies to furnish lamps free of charge. After the schedule of rates had been fixed, the company, represented by the relator, Goodrich, adopted a rule by which it charged for the lamps. The city met this with a new ordinance by which it sought to compel the electric light company to furnish lamps free of charge. Goodrich was arrested for violation of the last named ordinance and he invoked the writ of habeas corpus. The city sought to sustain its ordinance upon the theory that it was a rate-fixing ordinance supplementary to the prior rate-fixing ordinance,
This method of fixing rates, if such is the intent of the ordinance, is certainly very unfair and unequal, both to the water consumer and the company. [Prindiville v. Jackson, 79 Ill. 337.] The recognized fair basis on which to fix water rates is, so far as practical, to charge for the amount of water used. Neither the number of .pipes, the length thereof, nor the expense of installation and repairing bears any relation whatever to the quantity of water consumed. A customer who has a large hotel of many rooms uses but one service pipe and it costs him no more to install and maintain that service pipe in the street than it-costs the owner of a small one-story building. It costs no more to run a service pipe from the street main to a building in which there is a laundry or public bathhouse, or some other business in which a large quantity of water is used,' than it does to install and maintain a service pipe from
The appellant to support its contention that this ordinance is valid under the power of the city to regulate rates cites a line of cases where the company construed the franchise ordinance,'lunder which the company is operating, as imposing on the company the •obligation to install and maintain service pipes from the water mains to the property line, and holding that the company can not in such cases evade the ordinance rate by shifting this burden on the consumer. [Pine Bluff Corporation v. Toney, 131 S. W. (Ark.) 680; International Water Co. v. City of El Paso, 112 S. W. (Texas) 816; Cleveland v. Waterworks Co., 125 Pac. (Wash.) 769.] Whether this obligation rests under the ordinance in question as interpreted under the laws of this State on the water company or the consumer is the very question now at issue, and, if it be found that such obligation rests on the consumer, then these eases are certainly no authority for holding that the city under the guise of regulating rates can shift the same to the water company. If it be found that the obligation already rests on the company under its franchise ordinance, then, as held in the Pine Bluff case, supra, an ordinance such as this one might be used to enforce that obligation, but it cannot be used both to create and to enforce such obligation. This point must therefore be ruled against appellant.
On the proposition that the ordinance is a valid exercise of the police power of the city to regulate and protect the use of its streets, it will be noted that the ordinance in question does not disclose on its face any such purpose. That the city has ample power in this
Certainly the city cannot compel anyone to use its streets for any special purpose when such person is not seeking the privilege or under obligation to do so. An ordinance requiring a designated person to use the streets in a certain manner or’for a certain purpose in order to be valid must be based on the fact that such person is then seeking some special privilege in using the street, or has already taken on himself the obligation to do so, and the.requirements imposed are necessarily or reasonably connected with or grown out of such granted use. The power of the city is to regulate the use of its streets and not to compel such use. The ordinance in question seeks to compel the water company,' against its will, to use its streets for the purpose of constructing and maintaining lateral service pipes
In this connection we will also consider the second phase of the police power—the right of the city to enforce reasonable ordinances regulating the performance by the water company of its duty to the city and its inhabitants under its franchise, and the proper and safe use of its streets in so doing. That the city has such right is unquestionable, (State ex rel. v. St. Louis, 145 Mo. 551, 576, 46 S. W. 981; Belcher Sugar Refining Co. v. Elevator Co., 101 Mo. 192, 206, 13 S. W. 822; 30 Ency. of Law, [2 Ed.] 415), and if the ordinance can be upheld at all it must be on this theory. The very statement of the proposition, however, suggests and implies that an ordinance to be valid for this purpose must be one to regulate or supervise the manner and means or to enforce the performance by public service corporations of its duties and obligations to the city and its inhabitants, and which duties and obligations are those already imposed by and growing out of its franchise contract. Such ordinances cannot create and impose new duties or powers but are dependent for their validity on the fact that such duties and powers already exist and are imp c sed by the franchise contract and only need to be regulated or enforced. This doctrine was well considered and the law declared in Ex parte Goodrich, 160 Cal. 410, 117 Pac. 451, 26 Am. & Eng. Ann. Cas. 56, where the court said: “Over these matters of safety and convenience the city council had the unquestioned power to pass regulatory ordinances. . . . The primary question is not at all one of .reasonableness, but one of legislative power. Only after the 'existence of ■the power is shown does the
It has been repeatedly ruled in this State that a city has no power by municipal ordinance to create a civil liability from one citizen to another, nor to relieve one citizen from that liability by imposing it on another. [Norton v. City of St. Louis, 97 Mo. 537, 542, 11 S. W. 242; Sanders v. Railroad, 147 Mo. 411, 426, 49 S. W. 855; Becker v. Schutte, 85 Mo. App. 57, 62; City of St. Louis v. Conn. Ins. Co., 107 Mo. 92, 96, 17 S. W. 637.] The application of this doctrine to cases based on negligence has led to differences of opinions and conflicting decisions (Sluder v. Transit Co., 189 Mo. 107, 135, 88 S. W. 648), and the dissenting opinion of Judge Marshall in that case, but as applied to contractual and similar obligations and liabilities it has never been
The validity of this ordinance must therefore be solved by a determination of whether the franchise ordinance imposes upon the water company or the consumer the obligation to install and maintain the service pipes connecting the water mains to the property line. The water company contends that it has discharged its whole duty under the ordinance in furnishing water in its mains and that the obligation rests on the consumer to install and maintain service pipes from the water mains to the place where the water is drawn off. The city argues that the franchise of the company is coextensive with the entire street and the company’s obligation is to deliver "water at the property line.
It is obvious that the purpose for which' the waterworks system is maintained, to-wit, the supplying of the inhabitants of the city with water, can be accomplished by either method. Unless we should say that the supplying of water to the inhabitants necessarily means delivering it to the consumer at the very place of consumption, a position not taken by any court and not contended for here, then the question of who should connect the water mains by service pipes with the private property was properly a matter of contract between the city and water company and should have been embodied in the franchise ordinance.. That the installation and maintenance of such service pipes to the property line is not one of the necessary incidents and obligations growing out of the rights and duties of the water company to supply water to the inhabitants of the city is shown by the fact that this company has
Turning to the ordinance contract in question, we think a reasonable construction of it taken as a whole-only imposes on the water company the duty and obligation to supply water in the water mains and to be laid in the streets, alleys, etc., of the city, and that it plainly implies that the consumer shall construct and maintain the service pipes for the mains to whatever place he desires to draw off the water. In addition to the provisions heretofore noticed, requiring the city to bear the expense of connecting the mains with any additional fire hydrants ordered and with the flush tanks of the sewers, we find that the original ordinance, providing for the- construction of the system, provides that the total distribution of pipes within the city limits shall make a total length of nine miles of pipes and shall include sufficient water service from the southern limits of the city to the northern limits and to certain smelting works on the outskirts thereof; that all of said pipes shall be of sufficient capacity to furnish water for putting out fires and for supplying.water for domestic.and manufacturing purposes; the city is to locate the pipes and fire hydrants thereon; the pipes are to be fitted with valves so as to divide the same into separate sections, each of which can, in case of accident, be shut off from the others. It can hardly be contended but that the pipes above mentioned and wherever mentioned throughout the ordinance unmistakably refer to water mains only.
Section 15 of the ordinance provides that any person or persons engaged in the business of plumbing or fitting premises' with service pipes shall have the right to tap and make proper connections with the water mains upon giving bond to the water company conditioned upon the proper and safe execution of such plumbing and fitting and of the pipes and materials used therein. The ordinance in thus speaking of
The case of International Water Company v. El Paso, 112 S. W. 816, relied on by appellant, concedes that if the franchise ordinance “by fair implication” relieves the water company of this obligation and imposes it on the consumer, the courts will so construe it. The court there said: “We think, in order for respondent to be able to claim immunity for this consequence, there would have to be some provision in the grant or contract which unmistakably, or at least by. fair implication, taking into consideration all the provisions of the contract bearing on the subject, would relieve it.” The ordinance discussed in Crumpler v. City of Vicksburg, 89 Miss. 214, 10 Am. & Eng. Ann. Cas. 1098, plainly refers only to the repair of a water main and such pipes as belong to the water company, and not to service pipes put in and owned by private consumers. Other eases relied on by plaintiff will be found to turn on the construction given by the courts to the particular ordinance then in question as to who is by the ordinance contract obligated to put in and maintain the service pipes connecting with the mains.
If we grant that this matter is a proper subject of contract and that the present ordinance contract is am
Where the ordinance contract is silent on the question of putting in service pipes, there is much conflict as to whether the law imposes on the water company or on the consumer the burden of connecting the water mains with the private property. 1 Wyman on Public Service Corporations, section 824, says: “For example it is not settled whether a water company is obliged to lay and pay for the service pipes from the street mains to the premises of the consumer, or whether the consumer himself must pay for the service pipes,” and cites authorities on both sides of the proposition and concludes that the weight of authority is in favor of the consumer having this burden. The authorities are also collected in the note to Pine Bluff Corporation v. Toney, 23 Am. & Eng. Ann. Cas. (Ark.)
In this condition of the law, we find that the Kansas City Court of Appeals, knowing this diversity of opinion, has followed the cases holding that such duty. is on the consumer. [Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288.] The court there said: “Whether or not the rule which imposed on the consumer the burden of making connection between his premises and the street main was a reasonable regulation is a question we answer in favor of defendant. Though the authorities are not in accord on the proper answer to that question, those cited by defendant (State v. Gosnell, 93 N. W. [Wis.] 542, and Waterworks Co. v. Bingham, L. R. 25, Ch. Dev. 443) advocate the view that the consumer takes his water at the street main and must stand the expense of conducting it to his house and of measuring what he uses. ” The case quotes with .approval from the English ease of Waterworks Co. v.
Nor do we think that it can be said that because the Fisher case grew out of negligence in maintaining the service pipes and that there was no ordinance making it the duty of the water company to repair these pipes,'that that case is different from this one. That is reasoning in a circle, as it requires us to hold the' ordinance in question valid in order to make a difference in the cases and then because of the difference to hold that this ordinance is valid. Besides, it has been held that the law holds him responsible for negligence on whom the primary duty falls to repair or remove the cause of the negligence, in that case the service pipe, and that such liability cannot be shifted to another either by the-act of the party so liable or by city ordinance. [Norton v. City of St. Louis, 97 Mo. 537, 11 S. W. 242.]
Public service corporations are conceded to have-the right to make reasonable rules and regulations governing matters connected with their serving the public not covered by public laws or the franchise ordinance. [State ex rel. v. Gas Light Co., 34 Mo. App.. 501, 506, 30 Ency. of Law (2 Ed.), 418; 1 Wyman on Public Service Corporations, section 417.] Besides, the ordinance contract in question provides for the-water company’s making such reasonable rules and regulations, and sections 15 and 20 thereof, as before-noted, by clear implication give the water company the