100 Minn. 343 | Minn. | 1907
The petitioner and respondent established in its large building, used for wholesaling merchandise, an automatic sprinkling system, connected at its own expense with the water mains of defendants and appellants, the board of water commissioners of the city of St. Paul. At the top of the building was a tank filled with water, which maintained a pressure through the pipes in the building equal to the pressure in the mains. When the temperature at any place in the building would rise sufficiently to melt the metal coverings over small holes in the pipes of the sprinkling device, water escaped, the pressure in the pipes would be reduced, and water would flow-in from the city mains automatically through a valve. When the apertures of the pipes were closed no city water from the mains was consumed, except incidentally to fill the tank from the general service pipes in the building when they were not otherwise filled as from wells on the premises. The sprinkling connections were not metered, because the usé of meters would deprive the owner 'of the building of great reduction in insurance otherwise obtainable. The amount of water consumed by smaller pipe connections for general purposes having no connection with the sprinkling system was measured by meters.
In all cases where charges for water actually furnished by the board of water commissioners by means of meter rates shall exceed the sum due to the board of water commissioners on account of service furnished for automatic sprinkling systems, hydrants or large services, then the proper officers of the board are authorized to remit, and there shall be remitted, to any such consumer all charges due to said board of water commissioners on account of service furnished for automatic sprinkling • systems, hydrants or large services, and provided, further, that wherever the charge for automatic sprinkling systems, hydrants or large services exceeds the sum due for water furnished under meter rate then any such consumer shall be given credit for all payments under meter rates.
Rule 8 was amended at this time. It prescribed the minimum charges for service pipes one inch or over, exclusive of those supplied dwelling houses, flats, and churches; that is to say, rule 8 as amended applied to general consumption through large connections equipped with meters, and rule 22 to sprinklers having smaller connections equipped with meters. The meter customers would, under the rules, get credit on sprinkling charge for water consumed up to the point of the minimum charge fixed by amended rule 8. The minimum monthly rate fixed for service pipes equipped with meters under the amendment to rule 8 was the same as the minimum rate.for sprinkling connections with like dimensions under rule 22.
The petitioner was charged by the water commissioners for consumption through meter service pipe $4.60, for each of the several months involved. This amount was credited on the sprinkling rates and bills sent for the balance of $20.39 per month. Payment of this amount was refused. The water commissioners notified the petitioner
1. The water board raises a preliminary question. “The respondent before bringing this action did not in any manner seek an adjustment •of rates with the water board, or attempt to arrive at a contract with the board for the service; neither does respondent ask the court to ascertain and determine a reasonable rate and -tender payment of the rate so determined, but, on the contrar}r, it asserts the bold proposition that it is entitled to the service by law, without contract or compensation. If this be true, then the board can be compelled to install new connections for this class of service under like conditions.” It refers in this' connection to Christian & Craft Grocery Co. v. Bienville, 106 Ala. 124, 17 South. 352. It also , contends that there is no inherent right to the use of water conferred upon a citizen simply by the enactment of the law creating the water department, that the latter must be .supplemented by a contract regulating its use, and that the relation of the city to the user of water is that of contract. Powell v. City of Duluth, 91 Minn. 53, 59, 97 N. W. 450.
There can be little controversy, especially as to the latter part of these contentions, as general propositions of law. But in this case, as will subsequently appear, the city had made only unreasonable rates, bad insisted upon the payment of them by the petitioner and proposed to sever connections unless illegal rates were paid. It did not appear that petitioner had failed or refused to pay a proper rate.
In view of the course of trial and of the argument here, however, the merits of the controversy are before the court in accordance with current appellate practice. That practice construes liberally what matters .are presented for adjudication upon review, and inclines to finally determine the merits of a controversy. This is especially true where it is .apparent that no injury will ensue, and that the result of a disposition on technical or formal issues only will be to have the very questions presented brought up on another appeal after the case had been sent
2. The first question on the merits is whether the rules were impartial or discriminatory. The board insists that the only way in which it can place the sprinkler users as nearly as possible upon the same basis as those using meters on large connections was to give them credit for water consumed through their small metered service pipes, which they all have, and this was the reason for the adoption of rule 24. It gives them all the same opportunity and-puts them all on a uniform basis. In point of fact, however, a uniform basis did not result, either in the principle of the rule or in its actual operation. If the post office undertook, to a limited extent, to deduct the postage on one class of matter from the postage on another, or if a railway company allowed to a limited extent a rebate on freight rates to the amount of passenger tickets bought, there would be a similar and certainly illegal discrimination. A more nearly analogous case of equally clear illegality would be the permission, to a limited extent, to deduct from water charges the amount paid for street paving or sewer construction, where the city operated the water system directly. The rules here involved enable persons having a sprinkling assessment and using also meter service to pay the sprinkling charge by the purchase of meter service. There is no more reason why they should be entitled to satisfy this public charge by buying water than by buying anything else. The discrimination resulting in fact is apparent from the difference in charges shown by the record to have been made to individuals of the same class for the identically same service. For example, five owners of pipe connections are all charged for pipe connections described as “2 —4” a monthly rate of $12.49; the amounts deducted for meter service are, respectively, $2, $2.25, $3, $9, and $13. As a result these various owners are required to pay for exactly the same service the balance for sprinkling connections in the following sums, respectively: $10.49, $10.24, $9.49, $3.49, and nothing. It is trifling with figures to deny that this constitutes a demonstration of discrimination.
The effect is plainly more aggravated than merely discrimination between members of the same class. It constitutes discrimination
It is admitted that, if the rule is discriminatory, it is void. It would serve no useful purpose to cite the authorites for so obvious a proposition. Many of them will be found collated in the brief for the petitioner. The most nearly similar cases to which our attention has been called are Warsaw v. Village, 161 N. Y. 176, 55 N. E. 486; City v. Bienville, 130 Ala. 379, 30 South. 445; San Diego L. & T. Co. v. City of National City (C. C.) 74 Fed. 79; Id., 174 U. S. 739, 19 Sup. Ct. 804, 43 E. Ed. 1154. And see Lanning v. Osborne (C. C.) 76 Fed. 319; 6 Current Law 1871.
3. The second question on the merits concerns the right of the city to make any charge whatever for this sprinkling connection.
Among the pertinent considerations pressed upon our attention are the following: The city is put to no expense generally by virtue of the sprinkling connections, or specifically because of any necessity to maintain a given hydrostatic pressure. The mechanical contrivance is such that sufficient water pressure is maintained within the building to resist the pressure in the pipes. Further, while the city has a right to make a charge for water consumed for ordinary purposes, it has no right to charge for water supplied for protection from fire. As a matter of fact no charge is made or could be made for water used by the fire department in extinguishing a fire, although a single individual only would be benefited thereby. Individuals should not be required to pay water rates as a penalty for increasing the sufficiency of the fire department at their own expense by providing extraordinary and sufficient means of extinguishing fires immediately when they start.
Counsel for the board argues soundly that “section 19, c. 9, of the charter, which requires the city to pay the board by general taxation for water furnished for general public fire protection, as well as water used at public fountains and watering places, and by the various departments of the city. If a charge may be made for public fire protection, certainly there should be no question of the right to charge for private use in that regard.” The conclusion is reached that a charge can be made. How great that charge should be in the view here taken, is not before us. On that subject no opinion is expressed.
4. The final question is whether the petitioner was entitled to an injunction. The trial court found that the damage caused by the act of severing the connection between the sprinkling system and the water main would be irreparable. Within the meaning of the term as here
Judgment affirmed.