1 Mo. App. 495 | Mo. Ct. App. | 1876
delivered the opinion of the court.
This was an application for a mandamus. Defendant was-assessor of water rates of the city of St. Louis.
The relator of plaintiff alleges, in his petition, that he is a resident of the city of St. Louis ; that the water supply of' said city, and the control of its water-works, are, by law, intrusted to a board of water commissioners; that, under the regulations of said board, all persons introducing water from said water-works must first procure a permit from the assessor of water rates ; that it is also essential that the-water consumer provide himself with a hydrant on his-premises, through which the water is supplied; that such hydrants are the private property of the consumer; that-
An alternative writ was issued, to which respondent made return, settingup, as his ground for refusing to allow plaintiff’s relator to make an attachment of the main pipe to his “ Valve ” hydrant, a resolution of the board of water commissioners, to the effect that the assessor of water rates be instructed to notify all bonded plumbers that, after June 1, 1873, all hydrants connected with the city water-pipe shall be of the patent purchased by the city, of Joseph Gallagher, the right to use which is guaranteed by the board. This resolution was, he says, adopted by the board to prevent a waste of the city water, which he alleges to have been universal, and'excessive, and ruinous. He further says that all other hydrants used in St. Louis prior to April 17, 1873, allowed a continuous flow of water when once set going, unless this was stopped by turning the cock ; whilst the “ Gallagher ” hydrant is self-acting, stopping the water when the hand is removed, causing a great saving of water, whilst the other hydrants caused great waste ; consequently, the city purchased the right for all bonded plumbers of the
Relator then moved for a peremptory mandamus on this ■return, first, because the return set up no good reason for the refusal; and, second, because the .resolution of the board set forth in it is void.
This motion was overruled, and relator then filed a ■traverse to the return, in which, by a negative pregnant, he admits the resolution of the board set out in the return, and also the purchase by the board of the right to use the ■“ Gallagher ” hydrant for all the bonded plumbers, and says that, if there was. any waste of water from the reservoir .and mains, as claimed, by respondent, ample remedies .existed at the time to prevent it; and cites an ordinance of the city imposing a fine on any person permitting a waste of the water, and also giving the board of water commissioners power to ascertain, by meters, the quantity of water in any case. The traverse further alleges that, these ample remedies being provided, the .use of the “ Gallagher” hydrant
To the traverse, no reply was filed. When the case was called for trial, the relator moved for judgment by default against respondeiit, for want of reply. This motion was overruled. Eelator then demanded a jury to try the issues, which was overruled.
The relator then presented a statement of the issues to be tried in this case, in the form of questions to be answered by a jury, as follows :
1. “Was there any material waste of the water ot St. .Louis, by consumers thereof, by reason of the defective character of the hydrant in use at and before April 17, 1873?”
2. “Were the ordinances of the city of St. Louis, set out ■in the denial of the returns made herein, sufficient, if enforced, to prevent any material waste of the water of the city at and before April 17, 1873? ”
3. “Is any material saving of the water of the city effected by the use of the “ Gallagher” hydrant, as compared with the ■use of any other hydrant heretofore manufactured or for sale in the city of St. Louis ? ”
Which statement was rejected by the court, and an exception saved.
The trial then proceeded before the court, without the intervention of a jury, and the respondent introducéd evi-dence tending to show that at and prior to April 17, 1873, a material waste of the water of the city existed ; that, owing to this fact, an investigation of the various hydrants in use was made by the board of water commissioners ; that thereupon the resolution of April 17, 1873, was adopted, with a 'view to.correct such waste of water; that the “ Gallagher ” hydrant was less liable to get out of repair, and less liable to waste water than the “ Valve,” or any other hydrant in use.
The relator introduced evidence tending to show that the
At the conclusion of the testimony, the court entered judgment overruling the motion for a peremptory mandamus* and dismissing plaintiff’s bill.
Within due time the relator filed a motion for a new trial* on the following grounds :
1. Because the court erred in refusing a jury trial.
2. Because the judgment was against the law and the evidence.
3. Because the court refused to enter judgment by default against the respondent, for failure to reply.
4. Because,.upon the pleading, the relator was entitled to' a peremptory writ of mandamus.
5. Because he was entitled to such writ under the evidence in the case.
6. Because the court erred in the statement of the issues to be tried in the case.
7. Because the court refused to try the issues in the case.
This motion was overruled. All exceptions were duly. saved, and, on appeal to general term, the judgment having been affirmed, the cause is brought before us by writ of error.
The question presented by the record is the validity of the resolution of the water board, requiring all persons desiring to avail themselves of the use of the water collected and distributed by the city to form a connection between their premises and the main water-pipe by means of the “ Gallagher ” hydrant alone.
The grant of power to the board of water commissioners is derived from an act of the Legislature creating the board, approved March 13, 1867, and entitled “ An act to enable the city of St. Louis to procure a supply of wholesome water.” By this act, a board of water com-, missioners is created, with general powers to convey the water of the Mississippi through the city of St. Louis, and
It will hardly be pretended- that, under and by virtue of these poAvers, the board of water commissioners has no right whatever to regulate the supply of water. On the ■contrary, it clearly appears that it is its most imperative -duty to attend to this, to prevent unnecessary waste of this water collected and distributed at a vast expense, and to control its distribution in such a way that each license issued may, as far as that can be conveniently done, grant :a use of water proportioned in some measure to the amount 23aid therefor. The board — which cannot, without a criminal neglect of duties imposed by this act, 2>ermit each citizen, .at will, to bore a hole into its distributing pipes and attach thereto a tube conducting a perpetually flowing stream into his private premises — has certainly a right to direct that .something in the nature of a hydrantr — that is, of an instrument by which the Aoav of water may be checked and regulated at will — shall be placed at the end of the connection between the main 2>ipe and the tube conducting the water into the tenement of the consumer. But, if it had a right fo compel the use of a hydrant, it is difficult to see Avhy it may not select, amongst many varieties of hydrants, that one which to the board may seem the best fitted to promote the ■end of convenience of supply with the least possible unnecessary waste, and, having selected such a hydrant, to insist upon its use by all 23ersons seeking to connect a private
The court properly rejected the statement of issues presented to be tried; they were wholly immaterial, for the-reasons already stated.
There was no error in refusing a jury trial, because there:
The court committed no error in overruling relator’s motion for judgment for want of a reply. No reply was needed; the facts admitted for want of reply, if true, would not entitle plaintiff to the relief he asks.
■ There is nothing whatever in the allegation that the purchase of the right to use the “Gallagher” hydrant is a monopoly, or m restraint of trade. • These points are not insisted upon in argument, and demand no notice at our hands. The board cannot be compelled to sanction the use of an inferior hydrant, or of a variety of hydrants, for the purpose merely of enlivening the local trade amongst plumbers.
We see no error committed by the court below, and the judgment of the Circuit Court is affirmed.