Lake Shore & M. S. Ry. v. Elyria (City)

22 Ohio C.C. Dec. 449

• Court: Ohio Circuit Courts
• Decided: July 1, 1910
• Status: Published

Opinion

WINCH, J.

The sole question in this ease is whether the board of public service of the city of Elyria had power to enter into a contract with the railroad company to supply it with water at a given rate for five years, the company agreeing to take and pay for not less than a stipulated quantity of water each year during the continuance of the contract.

Two sections of the statutes require consideration in connection with this question. R. S. 2425 (Gen. Code 3973) provides:

“Any city or village which has established or Ihereafter establishes waterworks, may enter into a contract with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations; and any city or village which has waterworks, is hereby authorized and empowered to dispose of any surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the waterworks, or public works, and approved by the council of such city or village.” .

Manifestly the contract here involved, if it be considered as an agreement concerning the disposition of surplus water, cannot be sustained, because it was not approved by the city council.

The other section is R. S. 2411 (Gen. Code 3958), which reads as follows:

“For the purpose of paying the expenses of conducting and managing the waterworks, * * * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount in such manner as they may deem most equitable upon all tenements and premises supplied with water.”

The power here granted to “assess and collect from time to time a water rent,” must be taken as meaning the power to fix general rates which shall be assessed equally upon all water takers of a given class, and we so hold. The board is not here authorized to tie its hands or that of the city for a period of years by special contracts entered into with individual takers. Such contracts are authorized under certain circumstances by the other section referred to. Having legislated particularly upon tbe subject, tbe general power granted by tbe legislature should not be amplified by judicial interpretation, “expressio unius est exclusio alterius.”

The judgment of the common pleas court being in accordance with tbe views here expressed, it is affirmed.

Marvin and Henry, JJ., concur.