222 F. 789 | 8th Cir. | 1915
(after stating the facts as above). The material allegations of the bill are that in September, 1882, the plaintiff, a city of the first class in the state of Kansas, by its Ordinance No. 266 duly passed, granted to one J. A. Jones, his associates and assigns, for the term of 40 years, the right to construct, maintain, and operate a system of waterworks within the corporate limits of said city for the purpose of supplying to the city and its inhabitants “water for domestic and sanitary purposes and for the better protection of the city against disaster from fire,” and to charge and receive therefor compensation within the limit of maximum rates fixed by said ordinance; that Jones and his -associates in interest accepted said ordinance in writing, and pursuant to its terms constructed a system of waterworks in the city, which is now owned and operated by the defendant water company; that by said ordinance-Jones, for himself and his assigns, agreed to furnish water for the city
As a further cause of action it is alleged, that notwithstanding the foregoing agreement, the defendant water company has failed and refused to furnish water to water consumers unless they shall submit to an “illegal and extortionate charge of $2.50” as a condition precedent to the connection of service pipes with the water mains, and still refuses to make such connection for parties desiring water without the payment of such charge as a condition precedent to making such connections and the piping of water from the mains to the property line of the property abutting on the streets on which water is desired; that the charge of $2.50, or any sum, is illegal and unwarranted by the terms of said ordinance. The prayer is that defendant be enjoined from collecting from the churches of the city for water for running motors, and from charging $2.50, or any other sum, to consumers of water for connecting service pipes with its mains, and from shutting off the water to the churches or consumers, unless such payments are made, and that it be required upon proper application to install proper connections free of charge, between its mains and the service pipes of property owners in the city desiring water, and for other relief.
The defendant water company for its answer admits the passage by the city of Ordinance No. 266 granting to Jones and his assigns the use of its streets for the purpose of constructing, maintaining, and operating in said city a system of waterworks, its acceptance by Tones and the construction by him of such a system, and that defendant now owns and operates the same, that it and its predecessors have always charged the churches of the city a monthly rental at reasonable meter rates for water to run their motors, that they have always required the consumers of water to pay for tapping the mains, connecting the service pipes therewith, and extending them to the property line of the streets in which the mains are laid, and alleges that it is not required by the ordinance to do so free of charge, and denies the authority of the city to require it to furnish water to the churches free.
So far as material, Ordinance No. 266 provides that, in consideration of benefits that will accrue to the city of Wichita by the construction of a system of waterworks, the city agrees to rent, and does rent, from the said J. A. Jones and assigns certain hydrants, describing them, at an annual rental of $4,000, to be paid quarterly, with the right to rent additional hydrants at the rate of $50 each'per annum.
Section 13:
“That the following maximum rates shall be annual, and become a part of this franchise:
“Brewery, special;
“Churches, free;
“Candle factory, special;
“City offices, free;
“Distilleries, special;
“Fire protection, special to individuals;
“Hotels, special;
“Packing house, special;
“Printing office, special;
“Schools, free;
“Schools, fire protection, special;
“Sprinkling private garden, special, no license to exceed $20;
“Sprinkling public gardens, special;
*793 “Sprinkling carts, special;
“Public drinking and watering fountains, to bo erected by the city, free;
"Meter rates, 10,000 gallons and over per day, per 100 gallons, Sp0.02;
“Others, special;
“Motor's, special;
“Factories not enumerated, special.”
For other uses of water flat rates are fixed to be paid therefor by the consumer.
hi argument the defendant challenges the right of the city to maintain the suit in behalf of the churches or private consumers for its alleged overcharges for the use of water and the alleged illegal charges for the connection of service pipes with the mains, and insists that the injured consumer alone can rightly maintain the suit for such matters The trial court sustained this contention and dismissed the bill upon this ground, citing Dailey v. City of New Haven, 60 Conn. 319, 22 Atl. 945, 14 L. R. A. 69, and other cases, and declined to follow Muncie Gas Co. v. City of Muncie, 160 Ind. 97, 66 N. E. 436, 60 L. R. A. 822. Whether or not the plaintiff city may maintain the suit for the benefit of private consumers may be a debatable question, which we deem, it unnecessary to determine in this case, for, admitting, without deciding, that it may do so, it can only maintain the suit to the same extent and upon the same ground that the individual consumer, in whose behalf it is brought, could maintain the same. Its position in such case would be analogous to that of a state or the government when they respectively sue, or permit suits to be brought in «their names, for some reason. in behalf of private individuals. Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822; United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121. In the last-named case the Supreme Court at page 346 of 127 U. S., at page 1088 of 8 Sup. Ct. (32 L. Ed. 121), after referring to several cases said;
“Applying these principles to this case, an inspection of the record shows that the government, though in name the complainant, is not the real contestant party to the title or property 111 the land in controversy. It has no Interest in the suit, and has nothing to gain from the relief prayed for, and*794 nothing to lose if the relief is denied. The bill itself was filed in the name of the United States, arid signed by the Attorney General on the petition of private individuals, and the right asserted is a private right, which might have been asserted without the intervention of the United States at all.”
See, also, United States v. Winona & St. P. R. Co., 67 Fed. 969, 972, 15 C. C. A. 117.
“The said, grantee [the water company] shall furnish free of charge, all the water needed for use in the churches, free public schools, and other village buildings belonging to the village.”
This is quite different from the ordinance in question, which provides that the rates for water for “motors” shall be a special rate, or subject to the agreement of the parties.
The city cites and relies upon Hatch v. Consumers’ Co., 17 Idaho, 204, 104 Pac. 670, 40 L. R. A. (N. S.) 263, and cases there cited, as sustaining its contention that the obligation rests upon the water company to make the connections at its own expense. The case apparently so holds, but upon the ground, as we read the opinion, that in its prior decisions the court held that the statutes of Idaho, under which the city granted the franchise to the water company, either expressly or by necessary implication imposed upon the water company the duty of making such connections at its own expense. This being true, the acceptance by the water company of its charier would obligate it to make the connections free of charge. The case went to the Supreme Court of the United States upon the alleged ground that by the decision the water company had been denied some right guaranteed to it by the federal Constitution. The Supreme Court held that the charter of the company, as construed by the highest court of the state in connection with the statutes of the state in force at the time it was granted, imposed upon the water company the duty of making such connections at its own expense, and that the water company, having accepted the charter as so construed, was not therefore denied by the state any right guaranteed to it by the federal Constitution. The ordinance before us. does not so require, nor is there any statute of Kansas or decision of its courts to which our attention has been called that so requires. In the Hatch Case the Supreme Court of Idaho recognizes that the consumer may be required by ordinance to pay the expenses of service connections when the statute so authorizes, and cites a number of cases so holding.
We are of opinion that the churches in the city of Wichita are not entitled to the freé use of water from the defendant water company for running water motors, and that the consumers of water in the city are not entitled to have their service pipes connected with the water mains and extended to the curb or property line of the streets in which the mains are laid, at the expense of the water company. The bill was therefore rightly dismissed; but it should have been upon the merits, and for the want of equity.
The decree of the district court will be modified accordingly, and, as so modified, it is affirmed.