52 Mo. App. 312 | Mo. Ct. App. | 1893
The defendant water company, at the beginning of this suit, owned and operated a system of water works in the city of Joplin, wherein it had an exclusive right under and by virtue of an ordinance of said city. Section 14 of this ordinance attempts, as far as may be, to prescribe the rates or charges for consumers. It reads as follows: “Sec. 14. The water rates to consumers shall not exceed twenty-five cents per one thousand gallons, or one cent per barrel, approximated for the several purposes, as follows.” Then appears a schedule of prices per annum for dwellings (so much per room), hotels, offices, stores, bakeries, saloons, butcher shops, soda fountains, water closets, etc., concluding with this clause: “Bents for all purposes not hereinbefore enumerated will be
Plaintiff Lanyon erected at Joplin a family residence, and provided the same with the’necessary pipes, etc., to supply it with water from the defendant’s mains. Ho also put in at his own expense a meter of the most approved design. Lanyon then applied to the water company to turn in the water through his meter and into his dwelling, accompanying his application with a tender of the necessary prepayment of charges. The water company declined to supply water to be measured and paid for according to the meter, but did offer to let in water if plaintiff would pay according to the schedule of approximated prices. Thereupon Lanyon brought this action in mandamus to compel the company to turn on the water and supply his premises according to the meter rates. At the final hearing the circuit court awarded a peremptory writ as prayed by plaintiff, and defendant appealed.
This case must turn on the proper construction of section 14 (above quoted from) of the ordinance which grants the defendant its exclusive franchise to operate water works in Joplin. The defendant takes the position that it is obliged under the terms of that section to supply water to residences, and all other subjects specifically named, when and only when, the consumer shall pay, or offer to pay, the price affixed to each item, and that the company is not bound to supply water for any residence, or other subject so specifically mentioned, on charges to be paid as per meter measurement at twenty-five cents per thousand gallons; while the plaintiff asserts the right to an option of taking water at the fixed rate named in the
In our opinion the plaintiff’s position is the correct one. The manifest intention of the ordinance, it seems to us, was to fix the maximum charge for water at twenty-five cents per thousand gallons. If the consumer thinks, proper he may decline to go to the expense of a meter, and accept the water to be furnished at the “approximated” or estimated schedule price. If, however, the water company’s patron deems it best, or to his interest, he is left the choice of placing' a meter at his own expense, and then the charge against him is no longer a mere guess or estimate, but he will pay for the water actually used — no more, no less.
The relator Lanyon saw proper to adopt the latter course, and to have the water consumed on his premises measured. He consulted with the officers of the defendant company as to the best character of meter, and placed it properly to receive the water that might be used. He was then, on payment or tender of the necessary charges, clearly entitled as a citizen of Joplin to have the water turned into his residence.
We hold too — against the contention of defendant — mandamus to be the proper remedy in a case like this. The water company in the enjoyment of its franchise to lay pipes in the streets of Joplin has a monopoly to supply water for the inhabitants. It is there, to a certain extent, exercising the right of eminent domain. Its duties are of a public nature. It is bound by the terms of its grant to supply water from its mains to all citizens who may put themselves in a condition to demand and receive it. Should it fail or refuse to do so without just cause, then mandamus will lie to compel performance of this duty. 2 Beach on Private Corporations, secs. 834-6; 2Morawetz on Private
We observe the point made by defendant’s counsel that the peremptory writ does not follow and conform to the alternative writ of mandamus. The learned counsel contends for the correct doctrine in the abstract, as announced in this state (State ex rel. Millett v. Field, 37 Mo. App. 83-100); and that is, that the peremptory writ can go no further nor vary in any substantial particular from the commands of the alternative writ. But we fail to discover here any material departure. The relator had become entitled, by reason of his providing a meter and the prepayment or tender of the necessary charges, to have the water turned into his premises. The alternative and peremptory writ substantially commanded this and nothing more.
The judgment is for the right party, and will be affirmed.
