Opinion
No. 33157.
April 18, 1938. Suggestion of Error Overruled May 16, 1938.
1. WATERS AND WATER COURSES.
Where ordinance of city operating water system fixed flat water rate of $10 to $50 a year for restaurants and fixed meter rates without classification of users of meters and where restaurant operator protested against use of meter and refused to pay meter rates until compelled to do so under penalty of having water connection discontinued, contract to use meter did not exist.
2. WATERS AND WATER COURSES.
A city operating water system is permitted within reasonable limits to classify water rates in a practical business manner, determined by practical standards, but it must use reasonable classifications (Laws 1908, chapter 108).
3. WATERS AND WATER COURSES.
In operating waterworks plant, the city is operating a public utility and must treat all alike within the same classification, making the same charge for water used.
4. WATERS AND WATER COURSES.
An ordinance fixing water rates for water furnished by municipal water plant must have reasonable standards and the rates must be reasonable and substantially equal to all within the same classification, or engaged in the same business.
5. WATERS AND WATER COURSES.
A consumer of water is under duty to pay a reasonable rate for such use, even though the ordinance undertaking to fix rates is void.
6. WATERS AND WATER COURSES.
Where ordinance of city operating water system fixed flat rates for those engaged in restaurant business and consumer operating restaurant did not, upon city's attempt to collect meter rates, proceed to compel furnishing of service at flat rate, nor to compel city to make proper classification, giving fair rates to all users of water, but elected to use water through meter, he became liable for reasonable rate and where he admitted that rate was reasonable, he could not escape liability for such reasonable rate because others engaged in same business had been furnished water at lower flat rate.
7. APPEAL AND ERROR.
Where trial judge did not render written opinion but reached correct judgment, presumption existed that he applied the law correctly.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Hannah Simrall, of Hattiesburg, for appellant.
Section 2393, Mississippi Code of 1930, provides as follows: "Powers of Mayor and Board of Aldermen — The mayor and board of aldermen of every city, town, and village shall have the care, management, and control of the city, town, or village and its property and finances, and shall have the power to enact ordinances for the purposes hereinafter named, and such as are not repugnant to the laws of the state, and such ordinances to alter, modify, and repeal; and they shall have power."
We invite the court's attention to the language found in sec. 2393 that the mayor and board of aldermen "shall have the power to enact ordinances for the purposes hereinafter named;" and to the further fact that under section 2415, one of the things about which the mayor and commissioners are given the right to enact ordinances is, "to prescribe the rates at which water shall be supplied to the inhabitants."
It was, and is, the contention of the appellant that the meter rate fixed in the resolution of June 29, 1918, and consequently the change in said meter rate prescribed in the resolution of October 15, 1936, had no application whatever to this appellant, for the reason that this appellant never agreed with the City of Hattiesburg to use a meter and have the water consumed by him charged for on a meter rate basis; and the City of Hattiesburg never through the mayor and commissioners prescribed any rule or regulation by which this appellant was required to use a meter; and the employees of the City of Hattiesburg certainly had no right or authority to require this appellant to use a meter or submit to having water used by him charged on said basis.
Here we have a case where the appellant was willing and offering to pay the rate prescribed by the duly adopted resolution of the City of Hattiesburg, and a rate that he had been paying on for some 8 or 9 years; but a case where the collector or bookkeeper of the water works department decided that the appellant ought to pay on a different rate. The case is not in any substantial respects different from the case of Woods v. Town of Indianola, 114 Miss. 722, 75 So. 549; and the same case again in 118 Miss. 738, 80 So. 7. In this last case, the water collector or tax collector made demand on Mrs. Woods for the payment of a water tax greater than she was due. Mrs. Woods declined to pay the amount demanded and the tax collector or water rent collector discontinued her water and she sued the town and the Supreme Court held she was entitled to recover damages for this wrong.
Ginnings v. Meridian Water Works Co., 100 Miss. 507, 56 So. 450; City of Jackson v. Anderson, 97 Miss. 1, 51 So. 896.
In the case at bar, the Mayor and Commissioners of the City of Hattiesburg, by a resolution duly passed and spread on the minutes of the city, had prescribed the rates that this appellant, along with all other consumers of water, were obligated to pay and had a right to pay; but certain employees of the city, and subordinate employees at that, decided they would charge this appellant an entirely different rate. These employees did charge the additional rate, but the appellant consistently declined and refused to pay it. Appellant was finally forced to pay the additional amount charged to prevent having the water discontinued in his restaurant. Appellant paid this amount under protest and has filed this suit for the purpose of recovering his additional sum.
In the trial of the case, the only defenses offered by the city were that appellant continued to use water that ran through this meter installed in the building he rented after knowing the city was claiming the right to charge for this water on a meter basis; and further contended that the appellant was not even undertaking to establish that the charges were unreasonable. The full, final and complete answer to all such contentions is that the City of Hattiesburg is bound by its own ordinances and resolutions. There was no ordinance or resolution requiring this appellant to install or use a meter, or to pay for the water measured on the meter basis.
We respectfully submit that, if this appellant had declined to have paid the amounts demanded by the City and permitted the City of Hattiesburg to have discontinued his water for nonpayment of the same, he could have recovered from the City of Hattiesburg any and all damages he sustained as a result of the City discontinuing his water service.
E.J. Currie, of Hattiesburg, for appellee.
Counsel complain because, as they say, the Mayor and Commissioners had fixed one rate, and the appellant was charged a different rate. The alleged variation was in the appellant's favor, and I fail to see how he can be heard to complain. Under the ordinance and resolution of June 29, 1918, the minimum quantity meter rate prescribed was 15c per thousand gallons of water. Under the resolution of October 15, 1936, a sliding meter scale was provided, beginning at 35c per thousand gallons. The appellant was not required to pay this advanced rate, and was never required to pay more than the old minimum rate of 15c per thousand gallons.
In the instant case the appellant admits he got all the water for which he was charged; he admits that he was charged no more than a reasonable rate therefor; he continued to use the appellee's water for nearly four years with full knowledge that he was on a meter; he admits that the quantity-meter basis was the fairest method to use so as to insure that the person who used the most water would pay the most therefor; he could not and did not point out even one person, firm or corporation who used the same quantity of water he used and for a less price, and yet he says he was unjustly discriminated against.
Wilson v. Tallahassee Water Works Co., 36 So. 63.
It is respectfully submitted that if the City of Hattiesburg had had no ordinance or resolution regulating water rates, and the appellant used its water, he would have been liable for the reasonable value thereof, and he admits that he was charged no more than a reasonable amount for the water he consumed.
Water rates are imposed and collected merely as the compensation or equivalent to be paid, by those who choose to receive and use the water, for the commodity thus furnished them by the City. No one is compelled to receive or use the water, so as to be under obligation to pay for it, except at his own election; and when he does receive and use it, with knowledge of the rates charged by the City therefor, he, by implication, agreed to pay those rates, and his obligation to make payment rests upon contract, rather than upon an exercise by the state of the taxing power.
Wagner v. City of Rock Island, 21 L.R.A. 523; Vreeland v. O'Neil, 36 N.J. Eq. 399; Vreeland v. Jersey City, 37 N.J. Eq. 574.
It is submitted that the City had the absolute right to pick out the largest, or the most wasteful users of water, and put them on meters.
Arkansas Water Co. v. Furnish, 193 S.W. 80, 127 Ark. 585; Robbins v. Bangor R., etc., Co., 62 A. 136, 100 Me. 496, 1 L.R.A. (N.S.) 963.
It is not of itself unjust discrimination to furnish water to some consumers at flat rates and to others of the same class at meter or quantity rates, even though the rate by the gallon actually used is ordinarily lower to the former than to the latter.
Wagner v. Rock Island, 21 L.R.A. 519.
It is respectfully submitted that even if the proof had shown that the appellant had been unjustly discriminated against, he could not have maintained this action.
State v. Birmingham Waterworks Co., 51 So. 354; Paris Mountain Water Co. v. Caperdown, 82 S.E. 417.
Argued orally by T.C. Hannah, for appellant, and by E.J. Currie, for appellee.
The appellant, P.G. Almaras, brought suit against the City of Hattiesburg for $468.01, alleged overcharges for water furnished from the city waterworks. He states that the city was under the commission form of government, operating under chapter 108 of the Laws of 1908; and alleges that for many years the city owned and operated a municipal waterworks system, for the sale and distribution of water to its inhabitants; that on the 29th day of June, 1918, the mayor and commissioners of the city passed Ordinance 574, fixing the rates and charges for water supplied to the inhabitants, businesses, and industries of the city from the waterworks plant. He further alleged that he had been engaged in the restaurant business in Hattiesburg for about eight years prior to October 1, 1933, operating under an ordinance fixing the rate for restaurants at between $10 and $50 per annum, but providing no rule for the application of the minimum and maximum rates, and under this ordinance he paid the maximum sum, or in excess thereof; that about the 1st of October, 1933, he moved from his location at 516 Main street, known as the Jackson building, to 514 Main street, to a place known as the Sarphie building, at which time he was indebted to the city in the sum of $65 for water previously used; that after he moved into the Sarphie building he continued to use the city water, from October 1, 1933, to April 1, 1937, which under the rate of $50 per annum would have amounted to $175; adding to this the sum of $65 which he already owed, he would have been liable for a total of $240. He further alleged that the building into which he last moved had a meter in it prior to his becoming a lessee, and that the city claimed that he was liable for meter rates, which was 15 cents per thousand gallons, plus 25 cents per month meter rent; that he did not desire the meter, preferring to continue on the flat rate, at the maximum of $50 a year, and refused to pay the meter rates until compelled to do so by a threat that the water supply would be cut off by the city; that he had paid amounts on account for some time before said peremptory threat was made; and that the city had made charges amounting to $743.01, which was $468 in excess of what he owed. He alleged that the city waterworks had a monopoly in furnishing water to its inhabitants, and that it was necessary for him to pay the amount claimed in order to continue the operation of his business; and he prayed judgment against the city in the sum of $468.01, which he claimed to be in excess of the amount owing to the city by him.
Hattiesburg continued to operate under the rates promulgated in 1918 until October, 1936, when it established meter rates by another ordinance. The ordinance of 1918 fixed a number of rates between maximum and minimum figures, without any criterion for determining the intermediate charge for various kinds of business; for instance, on soda fountains the rate was from $25 to $60; on dental offices from $10 to $20; on restaurants from $10 to $50; on boarding houses from $10 to $20; on hotels from $10 to $50; and on livery stables from $20 to $50, with an additional $5 for every additional faucet. Under the heading, "meters," the rate was stated at 15 cents per thousand gallons, and a charge of 25 cents per month for meter rent, without classification of users of meters, or requirement that any particular business or person should install or use the meters. There was no contract in this case other than the facts stated, which do not under the law constitute a contract to use the meter, the plaintiff having protested against its use, and refused to pay meter rates until compelled to do so under penalty of having his water connection discontinued by the city.
The ordinance of 1936 fixed meter rates at varying amounts under certain classifications in proportion to the amount of water consumed. Under the classification within which the plaintiff's business would fall, according to the amount of water consumed, the rate would be 17 cents per thousand gallons. In practice, the city permitted various customers to depart from these rates, granting rates different from those paid by others, even permitting some to continue on a flat rate without meters, and in a few cases where meters were used charged a flat rate without reading the meters.
While the city is permitted, within reasonable limits, to classify rates in a practical business manner, determined by practical standards for securing practical justice, it must use reasonable classifications, having proper relation to the Code requirements as a whole. There is no guide, under the flat rate of 1918, by which to fix the charge between the minimum and maximum rate for a restaurant; that seemed to have been left largely to the personal judgment of the collector or superintendent of the waterworks department. In other words, it was possible, under the ordinance, to charge a customer using large quantities of water a less rate than a customer using little; or to charge a customer using a large quantity a different rate from another using practically the same quantity; and this seems to have been done in some instances, both as to the flat rates, and as to the meter rates.
In operating the waterworks plant, the city is operating a public utility, and must treat all alike within the same classification, making the same charge for water used. This it did not do in the present case. Before the ordinance of 1936, there was no legal standard by which to judge the fairness and equality of the charge with reasonable certainty.
In support of the judgment, it is argued on behalf of the city that inasmuch as the appellant used the meter knowing that the city was charging him meter rates, in effect he contracted to pay the amounts charged; and since the meter rate was not shown to be unreasonable, he was legally bound to pay it, although others in the same business, using approximately the same amount of water, might be on a flat rate and paying less. This contention is not sound, because the ordinance must have reasonable standards, and the rates for water furnished must be reasonable and substantially equal to all within the same classification, or engaged in the same business. Furthermore, the plaintiff did not voluntarily use the meter, but used it under protest, refusing to pay the meter rates until coerced into doing so. The rates must not be discriminatory. See Caston v. Hutson, 139 Miss. 890, 104 So. 698. The plaintiff testified that the rates were reasonable, and that he was not complaining of them, but of being discriminated against, insisting that he should have the same as his competitors in business.
A person situated as was the plaintiff, and using the water, is under the duty to pay a reasonable rate for such use, even though the ordinance undertaking to charge him a specific rate was void. In Vicksburg Waterworks Co. v. Yazoo M.V.R. Co., 102 Miss. 504, 59 So. 825, it was held that where the consumer is not misled by the neglect of the waterworks company in failing to have an accurate meter to correctly measure the water used by the consumer, the city would not be estopped from charging for the amount of water actually consumed. In Bell v. Kaye, 127 Miss. 165, 89 So. 910, it was held that rates fixed by a municipal ordinance cannot be enjoined unless it is alleged that they are unreasonable, and without offering to pay a reasonable rate.
Applying these principles to the case at bar, upon his own testimony the plaintiff was liable for the reasonable charge for water consumed, as measured by the meter. He admits that the rate was reasonable. He is not prejudiced by the judgment of the court holding him liable, although the court may have been in error in the reasoning by which it reached its decision. The circuit judge did not render a written opinion, and it must be assumed that he applied the law correctly, since his judgment was correct. Upon demand being made for meter rates, the plaintiff did not proceed to compel the furnishing of the service at the same rate which was paid by those using flat rates; nor did he seek to compel the city to make a proper classification, giving fair and equitable rates to all users of water therein. He elected to use the water; and notwithstanding the fact that the rates were not properly classified, he is liable for the amount used, at a reasonable rate — and in his own testimony he stated that the rate charged was reasonable. Consequently, the judgment of the court below will be affirmed.
Affirmed.