100 Me. 496 | Me. | 1905
Petition for a writ of mandamus to require the defendant company to furnish water to the petitioner at a house owned by him, and occupied by a tenant, in Old Town. The case was heard upon the petition and answer, as upon an alternative writ and return, and at the conclusion of the evidence the case was reported to this court for its “determination as to whether a peremptory writ of mandamus shall issue, or the petition be dismissed.” Some technical questions of procedure and pleading have been argued, but as the case comes up on report, it is unnecessary to consider them. Pillsbury v. Brown, 82 Maine, 450; Elm City Club v. Howes, 92 Maine, 211; Rush v. Buckley, 100 Maine, 322.
The essential facts are these. On October 16, 1889, Laughton and Clergue were promoters of a water company to be incorporated in Old Town. In fact the organization had been partly perfected at that time, but the approval of the certificate of incorporation by the Attorney General was not given until October 24, 1889. October 12, the inhabitants of Old Town in town meeting assembled appointed a committee to make a contract with “Laughton & Clergue, or such
“Said First Party (the promoters) agrees that the rates for water used in dwelling houses shall not exceed the following: — For each dwelling house containing a family of not more than four persons with one faucet for use within the tenement, five dollars per annum. For each additional person in the family fifty cents per annum. For the first wash hand basin set two dollars per annum. For each additional hand basin one dollar per annum. For one bathing tub three dollars per annum. For each additional bathing tub one dollar per annum. For one water closet three dollars per annum. For each additional closet one dollar per annum. For a dwelling house occupied by two or more families, each family to pay three-fourths of the above rate per annum.” Thereupon Laughton & Clergue completed the organization of the corporation known as the Penobscot Water & Power Company, to which they assigned the contract. The corporation accepted the assignment and assumed and agreed to perform “all the duties and obligations by said Laughton & Clergue to be performed according to the terms of said contract.” Among the corporate purposes of the Penobscot Water & Power Co. was “ the construction of water works and laying of pipes in any place or places, and buying, selling or leasing of water.” The corporation built a system of water works in Old Town/ and entered upon the business of supplying water to the town under its contract, and to the inhabitants for power and for domestic purposes. Annual or flat rates were fixed by the corporation payable semi-annually in advance, for
June 1, 1891, the Penobscot Water & Power Co. conveyed all its franchises and other property to the Public Works Company, by which they were conveyed,-, April 7, 1905, to the defendant corporation. The business of supplying water to the town or city of Old Town has been carried on continuously by these corporations in succession to the present time. And the water system referred to lias been the only source of public water supply for the city or its inhabitants during all this time.
About the beginning of the year 1903 the Public Works Company, then owning the plant, revised and changed its schedule of rates, and thereafter charged customers according to the new schedule. For water supplied to dwelling houses containing families the rates were left unchanged, being the same annual amounts provided for in the Laughtpn & Clergue'contract. All other services were metered, and were charged for monthly according to the amount of water supplied. The charge for water used for power was 11 cents for the first 10.000 cubic feet, 8 cents for the second 10,000 feet and 6 cents per 10.000 feet for all water in excess of 20,000 feet in each month. For all other metered service, including hotels and boarding houses, the charge was 25 cents per one hundred feet for the first 2,000 feet, 20 cents per one hundred feet for the second 2,000 feet and 15 cents per one hundred feet for all water in excess of 4,000 feet in each month.
The petitioner, an inhabitant of Old Town, owned a house on Main street, which was piped for water and connected with the water company’s mains. The house was occupied from time to time by tenants, who kept boarders. From the outset down to 1904 this house was classed as a dwelling house, and the company charged and the petitioner paid the annual flat rates for dwelling houses, which were named in the Laughton & Clergue contract. In the later years the tenant’s own family consisted of five persons. The number of boarders varied, but was estimated by the company. The company charged and the petitioner paid for 15 persons,in the family, boarders and all,
Upon these facts, concerning which there is little dispute, the defendant contends that the petitioner is not entitled to mandamus against it, as a matter of law. It says that the petitioner’s rights, if any, rest in contract, — and so far as alleged in the petition, — in the Laughton & Clergue contract, that the contract was made by the town and that the petitioner was not a party to it, or in any privity with the parties, and that mandamus will not lie to enforce contractual duties in any event. Furthermore it is argued that the defendant is not bound by the Laughton & Clergue contract. We will consider the last proposition first.
It is not necessary to inquire when and how far and in what manner a corporation is bound by the engagements entered into by its promoters. It is at least settled that if the corporation adopts such a contract expressly or impliedly, and obtains its benefits, it must take it with its obligations and burdens, cum onere. It must do what the promoters agreed to do. 23 Am. & Eng. Ency. 241; 10 Cyc. 262; note to Pittsburg Mining Co. v. Spooner, 17 Am. St. Rep. 161, In this case the Penobscot Water & Power Company
It is true that mandamus is not the proper remedy for the enforcement of mere contractual duties. It does not lie to enforce rights of a private or personal character, or qbligations resting entirely upon contract, and not involving any question of trust or official duty, or growing out of public relations. 2 Spelling on Extraordinary Belief, sect. 1379. But that is not the situation in this ease. The defendant is a public service corporation. By undertaking a public service, namely that of furnishing a supply of water for the public, it comes under obligations to the public, not only to the public as a whole, but to the public as individuals, and that independent of its contract duties. It must serve impartially, or on equal terms and at reasonable rates, all who apply for service. Indeed, from the existence of such a public duty, the law will imply a contract, if necessary, with each of the inhabitants served. McEntee v. Kingston Water Co., 165 N. Y. 27. It is the duty of the defendant as a public service corporation to supply water to this petitioner at reasonable, rates, fairly and without discrimination. Kennebec Water District v. Waterville, 97 Maine, 185. The duty is a public one which does not depend on the Laughton & Clergue contract, although that limits the maximum rate in some instances, but it arises from the character of the service it undertakes to perform. Because a duty of this kind is public each owner of a building which may be served is entitled
It is not questioned but that a public service corporation, like a water company, may adopt reasonable rules and' regulations for the conduct of its business, to which the individual water takers must conform, that it may require payment for a reasonable time in advance, or that it may cut off water from a customer who refuses or neglects to pay reasonable rates. Wood v. Auburn, 87 Maine, 287. And we think there can be no question of the right of such a corporation to revise and change its schedule of rates, if no contract prevents, provided that the new rates are reasonable and do not discriminate. Within these limitations it may change from an annual or flat rate to a meter rate. In fact a reasonable meter rate seems the more equitable and just. We have recently discussed what are reasonable rates in Kennebec Water District v. Waterville, 97 Maine, 185 and Brunswick & Topsham Water District v. Maine Water Co., 99 Maine, 371, and this case calls for no further discussion.. Nor do we think there can be any doubt that in case of unnecessary waste the company may apply a meter, and charge reasonable meter rates. Again while it may be lawful to classify water takers, not arbitrarily, but upon reasonable grounds, as for instance as between boarding houses and private dwelling houses, and while it rqay be true in instances that a charge to small customers is not necessarily unreasonable because in excess of what a large customer would have to pay, for the same amount of water, still as bearing upon the question of discrimination it must be true that the quantity of water used and the cost of the individual
An application of -these principles will eliminate from further consideration all essential questions except two, and these are questions of fact. The petitioner bases his claim upon the dwelling house clause in the Laughton & Clergue contract. He says that his house was a “dwelling house containing a family” within the meaning of that contract and therefore, that the maximum charge for a family of fifteen exclusive of the water closet was $10 a year, and further that the family in the house did not exceed fifteen in number. All his tenders and his offer in the petition to pay are limited upon that ^theory. And if it were otherwise, the record does not disclose sufficient data to enable the court to pass upon the reasonableness of the meter rates themselves. The defendant on the other hand claims that the building is not a dwelling house within the meaning of the contract, but is a boarding house, and further that its predecessor was justified in putting in a meter, by reason-of the unreasonable Waste of water.
The decisive question, and the only one we need to consider, is whether the petitioner’s building was a “dwelling house containing a family” as specified in the original contract, or was a boarding house. It is urged in the first place that the company itself has so classified it for quite a long period of years, and that in consequence its status is now fixed beyond the power of the company to change. The construction which the parties by their acts place upon a contract frequently is, in cases of doubt, of great value in determining what the contract meant. And when by long continued usage they have given a practical construction to it, it may be beyond the power of one party to change it. West Hartford v. Water Commissioners of
The building itself seems to have been built originally for family use. But it had been used by tenants for keeping boarders and was being so used when the meter was put on. The tenant, his wife and three sons lived there. The number of boarders was as low as three at times, and at others as high as ten, and perhaps more. The boarders were not transients. They stayed more or less permanently. The word “dwelling-house” does not always have the same sense in all cases. It may mean one thing under an indictment for burglary or'arson, and another under a homestead law, and another under a pauper law, and another under a contract or devise. A boarding house certainly is a dwelling house. So is a hotel. Or a jail. People v. Van Balrcum, 2 Johns. 105. Or a single room. People v. Horrigan, 68 Mich. 491.
But the Laughton & Clergue contract limited the meaning which might be given to the word dwelling house. The phrase there is “dwelling house containing a family.” The word family is also of flexible meaning. The meaning varies as the question arises under homestead laws, or exemption laws, or pauper laws, or under insurance policies or wills, or other conditions. Its primary meaning is a collection of persons who live in one house and under one head or management. Dodge v. Boston & Prov. R. R., 154 Mass. 299. In that sense it has frequently been defined as synonymous with household. Webster gives the primary meaning as “persons collectively
If the foregoing definitions gathered from the cases give a correct / view of the various phrases of a family relationship as applicable to this case, from the judicial point of view, as we think they do, it is
Applying this test to the evidence in this case, we are satisfied that the petitioner’s house should be classed as a boarding house, and that it is not within the limitation for dwelling houses in the Laughton & Clergue contract. The tenant used the house for carrying on the business of keeping boarders, and his living there was incidental to that business. That was his business, and his only business of any consequence, as he testified.
Accordingly the petitioner’s claim is not sustained, and his petition must be dismissed. But we'decide nothing' more. The petition is not framed to raise the question whether the rates charged to the petitioner for the house as a boarding house are excessive or not. Neither as we have already said is there sufficient evidence upon which to answer such a question. Nor ’do we say that the rates which the defendant demands are or are not unjust by reason of unlawful discrimination in the classification made by it, and in the
Petition dismissed.
