130 F. 257 | 6th Cir. | 1904
having stated the case as above, delivered the opinion of the court.
There is no assignment of error in overruling the plea to the jurisdiction or in overruling the demurrer. On the present appeal those matters are not directly before us, and can only be considered to the extent of their bearing on the propriety of the order granting a preliminary injunction, except, of course, that we might, if the circumstances required it, direct the cause to be dismissed for the reason that the citizenship of the complainant in Indiana is not bona fide. We conclude, however, to dispose of the appeal on its merits. In doing this we shall pass by the grave question whether in the Circuit Courts of the United States, in equity, a bill can be maintained for the purpose of compelling one person to perform a duty owed to another, in such circumstances as these.
We think the court below erred in holding that the appellant owed to the appellee the duty of which the latter demands performance. Passing by another question, namely, whether the appellee has such an interest in the sprinkling of the streets in Louisville as would entitle him to maintain a legal action of any sort, we are of opinion that the appellant, owing, as it did under its charter^ a duty to the city, and perhaps to its inhabitants, of supplying water to be used in sprinkling the streets, had the power, nevertheless, to make reasonable regulations in regard to the agency by which its duty should be discharged. It could not lawfully so exercise its authority in that regard as to unnecessarily embarrass or impair its service to the public; and, if it did, it would expose itself to a liability to any person injured thereby for which there would be some legal remedy. But, subject to this condition, it might make such regulations as its own convenience and the proper conduct of its business might require. The granting of a license to any person to take water from its hydrants would seem to involve the right on the part of the company to have a voice in determining the person by whom it should be done. Certainly it cannot be said that there would be any propriety in granting licenses to any and all comers who should demand it to do the same thing. In this particular service it is obvious that this would lead to chaos, would embarrass the service to the public, and would be inconvenient and prejudicial to the company. We see nothing, therefore, that-could be injurious to any lawful right of others in
Similar, if not the same, questions were involved in the case of Fuhring against the Louisville Water Co. (a case decided by the Court of Appeals of Kentucky in 18T9, but not reported). That was the case of a petition for a mandamus to compel this same company to furnish water to the petitioner wherewith to sprinkle the streets of Louisville. The Court of Appeals, waiving all question of the propriety of the remedy sought, and assuming that the company was bound to furnish an adequate supply of water for sprinkling the streets of the city, held that the plaintiff, it not appearing that she resided or did.business or owned property on any of the streets which she proposed to sprinkle, had no such special interest as would entitle her to the relief sought; and, further, that, because of the confusion and waste that would otherwise ensue, the company might lawfully restrict its choice to one person, and that such choice was left to the company, no tribunal being expressly appointed for that purpose. In that case it does not appear that another had been already licensed, and the case goes upon the broad grounds that a person having no special interest by reason of residence or ownership had no right to coerce the choice of the company by compelling the selection of himself. The case goes further than the present, for here the company gave the plaintiff a chance to qualify himself of which he would not avail himself. The court below thought itself not bound by the decision referred to for the reason that the case might have been decided upon the fitness of the remedy. But as we think it sound in respect to the questions involved, we accept it as confirmatory of our own views, without deciding whether we should be bound by it or not.
The order appealed from must be reversed, with costs.
