Vicksburg Waterworks Co. v. Yazoo & Mississippi Valley Railroad

51 So. 915 | Miss. | 1910

Mates, J.,

delivered the opinion of the court.

The controversy in this case presents an entirely distinct question from any that was involved in the cases of Vicksburg v. Waterworks Company, 202 U. S. 453, 26 Sup. Ct. 660, 50 L. Ed. 1102, and City of Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 496, 27 Sup. Ct. 762, 51 L. Ed. 1155.

The first contention is that the railroad company has entered into a five-year contract with the waterworks com-pany, dating from the 15th day of February, 1909. The contention does not grow out of any affirmative action on the part of the railroad company; but it is contended that the contract is completed by the failure of the railroad company to reject the proposition made to it by the manager of the waterworks company on the 10th day of February, 1909. This contention, if sound, must rest on the following facts, viz.: On the 10th day of February, 1909, and before the expiration of the first five-year contract, M. O. Grumpier, the manager of the Vicksburg Waterworks C'ompany, wrote to B. F. Galvani, superintendent of the railroad company, stating that he could no longer furnish water at the former rate, that is to say, at six cents per thousand gallons, and that, taking everything into consideration, the water could not be furnished for less than one cent per hundred gallons, or ten cents per thousand gallons. This letter was written five days before the expiration of the first contract. Galvani did not reply to this letter, whereupon, on the 17th of February, Grumpier again wrote, calling Galvani’s attention to a conversation they had on the 6th of February in reference to the formation of a new contract, and reminding him of the letter written on the 10th, offering a rate of one cent per hundred gallons, to which there but as yet been no reply; therefore Grumpier said in this letter that at the expiration of the old contract on the 15th of February past, he had commenced to charge the railroad company at the new rate of one cent per hundred gallons, or ten cents per thousand gallons, and that in future' the water bill would be rendered at that price. Eight days after the receipt of this second letter, W. S. King, general superintendent of the Yazoo & Mississippi Yalley Railroad Company, and residing in Memphis, replied to Crumpler’s letter, stating that the railroad company would not agree to pay one cent per hundred gallons for a period of five years, and further said: “As you seem to assume that we will accept water from you on this basis, I beg to advise 'you that we, of course, have no idea of making a contract with you on this basis. I note that you had the meter read on the 15th instant, and therefore will commence a charge of one cent per hundred gallons. As our contract expired on the 15th, we are willing to pay you one cent per one hundred gallons for such water as may be consumed, but will not agree- to‘do this for five years, nor for any other specific time.” On the 27th of February Mr. Grumpier replied to the above letter, in substance saying that they considered the contract for a term of another five years from the expiration of the last five-year contract at the price of one cent per one hundred gallons was a closed incident, and that such would be the contention of the waterworks company, and they would insist upon it being carried out for the full term of five years.'

It 'is contended that because the railroad company did not .reply to the proposition made by Grumpier immediately upon receipt of the letter, and because the company received water after that time and paid for it at the price of one cent per one hundred gallons, that this constitutes a binding contract for another period of five years. It is contended that the silence of the railroad company after receipt of the proposition for the period of eight days, and the acceptance of water after the expiration of the first contract and while this proposition was pending, and payment made for same at the price of one cent per one hundred gallons, renewed the contract; and appellant’s counsel cite many authorities to support the proposition that an offer may be accepted by silence, as well as by positive action, so as to constitute a binding contract. The principle of law above cited may and does apply in a proper case; but the facts of this case do not fall within any such rule. The waterworks company is a public service company, under the •duty b'y its charter to fumisb water to the city and all its 'inhabitants for public or private use, when properly compensated therefor. ’ The waterworks company had the right to charge reasonable rates for any water furnished to the railroad company; but if the railroad company had declined to enter into a five-year ■contract to pay one cent per one hundred gallons, •which it did •do, the waterworks company could not on this account have •refused the water supply, but would still have been under the ■duty to furnish it water at such reasonable rates as were allowable under 'its charter, for it was its public duty so to do. But, even if this were not tme, the proposition was made to •the Tazoo & Mississippi Valley Railroad Company on the 10th •day of February, five days before the expiration of the old -contract, and renewed again on the llth of February, two days after the expiration of the former contract, and on the 25th -of the same month the railroad company wrote rejecting the ■proposition. If under the facts of this case this public service ■company could have forced this contract on the railroad company by the mere failure to reject its terms, the railroad company was certainly entitled to a reasonable time in which to consider what it would do. It was utterly beyond the power of the waterworks company to force this contract on the railroad company ■for a period of five years under the facts of this case, to say the least of it. The waterworks company might possibly have •charged a higher price'than was proposed, if permissible under fits charter and the regulations of the city.

The next contention is that the city is without power to ■permit the railroad company to use Levee street for the purpose •of laying a pipe under it to the end that the railroad company ■may obtain its own water supply from the Yazoo* river, since the city has granted to the waterworks company the exclusive right to conduct a waterworks plant in the city. No question is here involved as to whether or not the city may grant to : another individual the right to construct and operate another waterworks plant in tbe city of Vicksburg, even though it has-already granted this privilege to the present waterworks plant now operating there. The only question now presented is-whether or not the city may permit the Yazoo1 & Mississippi Valley Railroad Company to lay pipes and mains on Levee-street in order to obtain water for itself and for its own consumption from the Yazoo river. It is not suggested that the" Yazoo & Mississippi Valley Railroad Company intends to conduct any public waterworks plant in the city of Vicksburg, or that the city authorities have granted or attempted to grant" any such authority to it; but the only object is to enable the' railroad company to relieve itself from the tax imposed by the waterworks company b'y constructing its own system, in order that it may obtain its own water supply for its own use. It is-not shown that in so doing the action of the railroad company would in any way interfere with the Vicksburg Waterworks-Company in the operation of its plant. The only damage done-the Vicksburg Waterworks Company is to thus take from it a desirable customer. It would be little less than absurd to hold’ that the city of Vicksburg was powerless to grant this right to the Yazoo & Mississippi Valley Railroad Company, or to any-other person or corporation desiring to supply its own water.. A law compelling a holding contrary to this would be little-short of tyranny.

The court below having sustained a demurrer to the bill ami dissolved the injunction, the decree is affirmed <md cause remanded.