Exchange & Building Co. v. Roanoke Gas & Water Co.

90 Va. 83 | Va. | 1893

Laoy, J.,

(after stating the case) delivered the opinion of the court.

There is but one question disputed in this cause, the sole question at issue being whether the Roanoke Gas and Water Company, under and by virtue of its charter, is authorized to charge some of the consumers of water, or water takers in the city of Roanoke, by the gallon, and at the same time to charge others by the-hydrant. Or whether charging some of the said waters by the hydrant, it may, under its charter, nevertheless charge still others by the gallon, all other questions being conceded in the argument here by the appellee.

The charter does provide that “ all water rates established shall be uniform throughout the town for the same class of ser-viceAnd the charter does provide, as is also relied on by the plaintiff, the appellant here, that “the charge for tire hydrants shall be $25, and for storehouses using'only one hydrant, $9.” But the charter also provides, as is urged by the appellee, “that the charge made for water shall not exceed five cents per hundred gallons for the amount supplied, nor fifty dollars per aimum for each hydrant for town use.”

These provisions are parts of the same instrument, and, if not inconsistent, should bo construed together. And while it is clear that the water company cannot lawfully discriminate between water takers of the same class so as to make their water rates otherwise than uuiform, yet by its charter the water company is authorized to use either the hydrant as a measure of charge, or use any reliable instrument which will measure the gallons used, and so enable it to charge by the gallon. The water rates must be uniform throughout the town for the same class of service, and the water company cannot charge on water more than another in the same class of service.

But the complaint in this case is that the water company is about to measure the water used by the plaintiff company. This the charter impliedly authorizes when it allows d charge by the gallon. And the further complaint is that this charge is twenty-five cents per thousand gallons, or two and a half cents per hundred gallons. This is expressly authorized by the charter, and it does not appear that this charge, which is only one-half of the charge allowed by the charter, will be greater than is charged by the hydrant at $9, and while the appellant has two stores, it has also a bank and a hotel among its buildings, and it could not claim that it is only one storehouse using one hydrant. But its water pipe supplies all of these; which are not of the class known as storehouses.

While a water company may be enjoined for exceeding its charter powers, there is no ground in this case to enjoin the appellee company from putting metres in its service pipes, such being plainly within the terms of its charter.

There was, therefore, no error in the action of the circuit court in overruling the demurrer of the defendant to the bills of the plaintiff and dissolving the injunction, aud the said decree is therefore affirmed.

Hinton, J., dissented.

DECREE AEFIRMED.