174 Mass. 514 | Mass. | 1899
The only question raised by the demurrer is the constitutionality of the provision of St. 1897, c. 336, § 1, under which the petitioners proceed. This section amends § 23 of the Metropolitan Water Supply Act, St. 1895, c. 488. It embodies a scheme which forbids cities or towns within ten miles of the state house to use water for domestic purposes, from any source not now used by them, except under the statute. This
When we first read this sentence the impression of some of us was that it was an attempt to make out of this court a commission for the taking of one step in fixing a legislative rule of future conduct, irrespective of any present relation between the parties concerned, and that it was no more competent for the Legislature to impose or for us to accept such a duty than if the proposition were to transfer to us the whole law-making power. See Smith v. Strother, 68 Cal. 194. But upon further reflection it seems to a majority of the court that the act can be sustained. If we can do so without perverting the meaning of the act, we are bound to construe it in such a way that it will be consistent with the Constitution, and we think that this can be done without any wresting of the sense, even if we should • doubt, which we do not intimate that we do, whether the Legislature had the limit of its power distinctly in mind.
The statute goes upon the footing that every taker of water from the companies in question has a right to be furnished with water at a reasonable rate. No one questions the power of the Legislature to require these water companies to furnish water to the takers at reasonable rates, (Attorney General v. Old Colony Railroad, 160 Mass. 62, 86, 87 ; Spring Valley Water Works v. Schottler, 110 U. S. 347, 354 ; Budd v. New York, 143 U. S. 517, 537, 549, 552,) and this statute does require the companies to do so, and thereby gives to water takers a correspond
But it has been regarded as competent for a court to pass on the reasonableness of a rate even when established by the Legislature, to the extent of declaring it unreasonably low. Chicago, Milwaukee, & St. Paul Railway v. Minnesota, 134 U. S. 418. Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339, 344. Reagan v. Farmers’ Loan Trust Co. 154 U. S. 362. Smyth v. Ames, 169 U. S. 466. A fortiori, when the rate is established by the company and it has undertaken to charge the plaintiff a sum which he alleges to be unreasonable, and the Legislature in terms has referred him to this court, this court has “ jurisdiction to inquire into that matter and to award to the [plaintiff] any amount exacted from him in excess of a reasonable rate.” Reagan v. Farmers’ Loan & Trust Co. 154 U. S. 362, 397.
It is true that in Reagan v. Farmers’ Loan & Trust Co. it was said, also, that “ it is not the function of the courts to establish a schedule of rates,” 154 U. S. 400 ; and to that proposition we fully agree. But it will be observed that the proposition is laid down in connection with the statement that “ the challenge in this case is of the tariff as a whole, and not of any particular rate upon any single class of goods.” Probably to prepare a new schedule, or to rearrange the old one, would have gone beyond the scope of the rights immediately affected or threatened in the case before the court, into the realm of abstract law making- for the future, and so beyond the power of the court; and,if it had not been beyond the court’s power, still
It is true that the phrase “ shall establish such maximum rates as said court shall deem proper,” and the following provision that such “maximum rates shall be binding upon said water company until the same shall be revised or altered by said court,” etc.; suggest that the Legislature had in mind the establishment of a rate to be charged to all parties for the use of water for domestic purposes, and not merely a rate to be charged the petitioner. It may be that the former was the main object which the Legislature had in mind. But although we cannot doubt that the meaning of the words last quoted is that the rate shall be binding as a general rate, even that is not said distinctly, and we feel bound to assume in support of the act that the Legislature is dealing primarily with the rights of the party aggrieved before the court, and only secondarily adopts in advance the rate thus fixed between the parties as a general rate for all. If this is so, the question whether such a legislative consequence can be attached to the decision is not before us. Even if it should fail, the failure would not necessarily affect the constitutionality of sending “ persons deeming themselves aggrieved ” to this court to get their rights settled. But as it is not likely that a rate thus established for a given moment after full investigation would be departed from upon the application of a second person similarly circumstanced, it may be questioned whether there is anything to prevent the Legislature from sanctioning without further hearing a rate which once has been declared judicially to be reasonable. It is to be remarked in this connection that the decisions which we have cited for the proposition that the Legislature may require rates to be reasonable, establish the further proposition that the Legislature may fix what the
It will be understood from the reasoning on which we sustain the act that the court would not regard itself as warranted or called on to undertake the fixing of rates except so far as they concern interests actually and legitimately before the court.
■ The liberty to apply to this court is confined to the year 1898 and every fifth year thereafter, so that seemingly it is contemplated that the rate when fixed will remain unchanged for five years. This is another indication that the Legislature had its attention directed to the establishment of a general rate. But supposing a party aggrieved should obtain an injunction, obviously the decree would be drawn so as to bind the defendant for a reasonable time, or, if it were drawn in the common form, subject to review on a change of circumstances, the court would not be likely to grant leave to file a bill of review until a reasonable time had elapsed, and if the Legislature should say that in these cases five years was a reasonable time, we could not say that it was wrong. It is true that the party aggrieved is not given an injunction in terms by the act, and this is another peculiarity in the procedure, looking as it does to a decree affecting the future. ■Of course it is assumed, and no doubt rightly, that a company would not venture to disregard the decree. But if a company should prove recalcitrant, in case such disregard should not be construed as ipso facto a contempt, undoubtedly the decree could be enforced by injunction.
There is still one more peculiarity in the statutory proceedings which adds a little to the difficulty of the question before us. We have construed the statute to deal primarily with existing rights and grievances. But the proceedings are given to “the selectmen of a town, or any persons deeming themselves aggrieved.” So far as the alternative mention of the selectmen should be used as an argument that the primary purport of the act was not to deal with present rights, we should answer that it does not appear that the towns within the ten mile radius do •not all of them take water in their corporate capacity, and if it was assumed by the Legislature that they did, as they probably do, the argument would lose its force.. It may be that the Legis
One question remains. The fixing of a reasonable rate is not left at large to the court. The rate is to be “a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within said metropolitan district.” Of course it is argued that this is an.attempt to let one company fix a price for another. To a certain extent the standard runs in a circle, since the price charged by water companies in the other towns within ten miles of Boston also may come before this court for revision. But leaving that consideration on one side, it is evident that the Legislature regarded the cities and towns referred to as constituting a class; and while a mere accumulation of instances is not evidence of what is reasonable, the general practice in the class to which a case belongs stands on a different footing, and if the circumstances are sufficiently similar may be instructive. See McMahon v. McHale, ante, 320; Veginan v. Morse, 160 Mass. 143, 148.
As has been said, the cases establish the power of the Legislature to fix rates, subject to the qualification that they shall not be unreasonably low. It cannot be assumed on demurrer, as against the implied opinion of the Legislature, that the circumstances are not similar, or that all the prices in the ten mile circuit will be unreasonable. If in the opinion of the court at any time they should be so, no doubt in that event it would be bound to disregard the standard of comparison set for it by the act. The governing requirement is that the price should be reasonable. But, especially in view of the fact that companies furnishing the standard have before them the possibility of a petition like the present, such a possibility is not to be feared.
Demurrer overruled.