The opinion of the Court was. delivered by
Mr. Chief Justice Gary.
The following statement appears in the record:
“This action was instituted in the Court of Common Pleas for Greenville county, on April 16th, 1911, for $224.10, with interest from July 1, 1910, and for $314.16, with interest from October 1, 1910, on account of water furnished the defendant by the plaintiff, during the period beginning April 1, 1910, and ending September 30, 1910, under written contracts dated, respectively, October 1, 1904, and February 25, 1907.
On March 15, 1912, the plaintiff served upon the defendant, written notice of demurrer to' the answer and counterclaim, hereinafter set out, which demurrer was heard by Judge DeVore at November term, 1912, and overruled. From the order overruling the demurrer the plaintiff gave notice of appeal.
The cause then came on for trial upon the merits, before Judge Shipp, and a jury at April term, 1913. At the close of the testimony, upon plaintiff's motion, Judge Shipp directed a verdict in favor of the plaintiff, for the amount of two water bills,' $224.10 and $314.16, total $538.26, but refused to< allow the plaintiff interest as claimed.
Upon the verdict thus rendered, the plaintiff duly entered up judgment, and from that judgment in due time, both parties have appealed, the defendant contending that the plaintiff was entitled to' nothing, and the plaintiff contending that it was entitled to interest as claimed, in addition to $538.26.”
In its answer the defendant alleges'that “the plaintiff was, and now is, engaged in the business of flirnishing water to the city of Greenville for public purposes, and to the people
of said city, and the territory adjacent thereto-, for domestic manufacturing, and other'purposes. That the plaintiff is and was a quasi public corporation, and is engaged in serving the p-ublic in the matter of furnishing water as- aforesaid. That under the laws c-f this State, it has- the right to condemn lands- for its corporate purposes, and to- exercise other valuable franchises, given to- public service corporations. That under the franchise, granted by the- city o-f Greenville, and under the ordinances of said city, it possesses the right to use the streets, alleys and other public places in said city, for the purpose o-f maintaining its water main, and discharging its duties, as aforesaid.
That under the law, it is bound to serve- the public at reasonable charges, not in excess o-f those set forth in its franchise. and without discrimination as between customers- o-f the same class, and that any discrimination between its customers, is illegal and void.”
The defendant also alleged, by way of defense, that other mills similarly situated were, at the time of the- contracts between the plaintiff and the- defendant, being supplied with water, at the rate of 10 cents per 1,000 gallons-, without the knowledge of the defendant, and contrary to- the statements o-f the- plaintiff; and, that it should not, therefore, be required to- pay a higher rate than others.
Defendant also- set up- a counterclaim for excess charges, paid since 1907.
Section 7 of the franchise under which the plaintiff was operating, contains the- provision, that it shall not charge rates exceeding the amount therein specified, and that no water shall be supplied to- any customer per year, for less than 15 cents per 1,000 gallons, where the supply exceeds 10,000 gallons per day.
1
The first question that will be considered, is whether there was error on the part o-f his Hono-r, the presiding Judge, in overruling the- demurrer to- the defense set up- in- the answer.
It is not contended' that the contracts between the plaintiff and the defendant, were unauthorized or rendered illegal by reason of any provision in, the plaintiff’s franchise. There is no view under which the claims of the defendant can be sustained. In the first place, if the provision of the water company’s, franchise, that it should not charge a rate less than 15 cents, per 1,000 gallons, has no application to. mills outside the limits of the city, then it could not be successfully contended, that contracts with those mills would be discriminatory. But even if the provisions of the franchise, are alike applicable to> the mills in and outside the city, nevertheless, the defendant is not entitled to. the relief which it seeks. The remedy where there has been, an illegal discrimination, in the administration of powers conferred by a municipality, .is not by extending to others; the benefits arising from such discrimination, thereby increasing the number of those violating -the law, but to resort to the remedies which the law provides, for preventing the discrimination altogether. The defendant is practically asking the Court, to allow it to be-placed in the same category as those mills, that, it alleges, have entered into- unlawful contracts, in order that it may receive benefits to which, it alleges, others, in like plight, are not entitled.
While the facts
in Fuller
v.
Payne,
96 S. C. 471, 81 S. E. 176, are quite different from those in the present case, the principles upon which that case was decided, are conclusive of the question under consideration. In that case the Court said:
“There is a marked distinction, where the discriminatory classification is created by the act making" the appropriations, and when such classification arises from, the manner, in which the provisions of the statutes are administered by the fiscal agents, in assessing property subject td.taxation. Conceding that the classification mentioned in the complaint would have rendered the statute, under which the appropriation was made, null and void if authorized by the legislature,
it cannot be successfully contended that it had such effect, when adopted by the fiscal agents of the county.
It is not alleged in the complaint, that the statute under which the taxes were collected was unconstitutional, and, ■therefore, ¡null] and) void, nor that the'fiscal officers assessed her property at more than its true value; nor that the rate or per centum upon which her taxes were collected, exceeded that which the law prescribed; nor that in dealing directly with her property, there was a failure tO' comply with any requirements of law. We, therefore, start out with the indisputable proposition, that the taxes paid by the plaintiff did not exceed the proportionate amount which it was her duty to; pay, and consequently was not illegal. She, however, contends that it would be inequitable, not to' refund the taxes paid by her, on the ground that other taxpayers owning property similar to hers, were not required by the fiscal authorities to return it, for taxation, and that thereby a greater burden was imposed upon her, than her proper proportion of taxes.
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The opinion of the Court was. delivered by
Mr. Chief Justice Gary.
The following statement appears in the record:
“This action was instituted in the Court of Common Pleas for Greenville county, on April 16th, 1911, for $224.10, with interest from July 1, 1910, and for $314.16, with interest from October 1, 1910, on account of water furnished the defendant by the plaintiff, during the period beginning April 1, 1910, and ending September 30, 1910, under written contracts dated, respectively, October 1, 1904, and February 25, 1907.
On March 15, 1912, the plaintiff served upon the defendant, written notice of demurrer to' the answer and counterclaim, hereinafter set out, which demurrer was heard by Judge DeVore at November term, 1912, and overruled. From the order overruling the demurrer the plaintiff gave notice of appeal.
The cause then came on for trial upon the merits, before Judge Shipp, and a jury at April term, 1913. At the close of the testimony, upon plaintiff's motion, Judge Shipp directed a verdict in favor of the plaintiff, for the amount of two water bills,' $224.10 and $314.16, total $538.26, but refused to< allow the plaintiff interest as claimed.
Upon the verdict thus rendered, the plaintiff duly entered up judgment, and from that judgment in due time, both parties have appealed, the defendant contending that the plaintiff was entitled to' nothing, and the plaintiff contending that it was entitled to interest as claimed, in addition to $538.26.”
In its answer the defendant alleges'that “the plaintiff was, and now is, engaged in the business of flirnishing water to the city of Greenville for public purposes, and to the people
of said city, and the territory adjacent thereto-, for domestic manufacturing, and other'purposes. That the plaintiff is and was a quasi public corporation, and is engaged in serving the p-ublic in the matter of furnishing water as- aforesaid. That under the laws c-f this State, it has- the right to condemn lands- for its corporate purposes, and to- exercise other valuable franchises, given to- public service corporations. That under the franchise, granted by the- city o-f Greenville, and under the ordinances of said city, it possesses the right to use the streets, alleys and other public places in said city, for the purpose o-f maintaining its water main, and discharging its duties, as aforesaid.
That under the law, it is bound to serve- the public at reasonable charges, not in excess o-f those set forth in its franchise. and without discrimination as between customers- o-f the same class, and that any discrimination between its customers, is illegal and void.”
The defendant also alleged, by way of defense, that other mills similarly situated were, at the time of the- contracts between the plaintiff and the- defendant, being supplied with water, at the rate of 10 cents per 1,000 gallons-, without the knowledge of the defendant, and contrary to- the statements o-f the- plaintiff; and, that it should not, therefore, be required to- pay a higher rate than others.
Defendant also- set up- a counterclaim for excess charges, paid since 1907.
Section 7 of the franchise under which the plaintiff was operating, contains the- provision, that it shall not charge rates exceeding the amount therein specified, and that no water shall be supplied to- any customer per year, for less than 15 cents per 1,000 gallons, where the supply exceeds 10,000 gallons per day.
1
The first question that will be considered, is whether there was error on the part o-f his Hono-r, the presiding Judge, in overruling the- demurrer to- the defense set up- in- the answer.
It is not contended' that the contracts between the plaintiff and the defendant, were unauthorized or rendered illegal by reason of any provision in, the plaintiff’s franchise. There is no view under which the claims of the defendant can be sustained. In the first place, if the provision of the water company’s, franchise, that it should not charge a rate less than 15 cents, per 1,000 gallons, has no application to. mills outside the limits of the city, then it could not be successfully contended, that contracts with those mills would be discriminatory. But even if the provisions of the franchise, are alike applicable to> the mills in and outside the city, nevertheless, the defendant is not entitled to. the relief which it seeks. The remedy where there has been, an illegal discrimination, in the administration of powers conferred by a municipality, .is not by extending to others; the benefits arising from such discrimination, thereby increasing the number of those violating -the law, but to resort to the remedies which the law provides, for preventing the discrimination altogether. The defendant is practically asking the Court, to allow it to be-placed in the same category as those mills, that, it alleges, have entered into- unlawful contracts, in order that it may receive benefits to which, it alleges, others, in like plight, are not entitled.
While the facts
in Fuller
v.
Payne,
96 S. C. 471, 81 S. E. 176, are quite different from those in the present case, the principles upon which that case was decided, are conclusive of the question under consideration. In that case the Court said:
“There is a marked distinction, where the discriminatory classification is created by the act making" the appropriations, and when such classification arises from, the manner, in which the provisions of the statutes are administered by the fiscal agents, in assessing property subject td.taxation. Conceding that the classification mentioned in the complaint would have rendered the statute, under which the appropriation was made, null and void if authorized by the legislature,
it cannot be successfully contended that it had such effect, when adopted by the fiscal agents of the county.
It is not alleged in the complaint, that the statute under which the taxes were collected was unconstitutional, and, ■therefore, ¡null] and) void, nor that the'fiscal officers assessed her property at more than its true value; nor that the rate or per centum upon which her taxes were collected, exceeded that which the law prescribed; nor that in dealing directly with her property, there was a failure tO' comply with any requirements of law. We, therefore, start out with the indisputable proposition, that the taxes paid by the plaintiff did not exceed the proportionate amount which it was her duty to; pay, and consequently was not illegal. She, however, contends that it would be inequitable, not to' refund the taxes paid by her, on the ground that other taxpayers owning property similar to hers, were not required by the fiscal authorities to return it, for taxation, and that thereby a greater burden was imposed upon her, than her proper proportion of taxes. In the first ■ place, it cannot be successfully contended, that the taxes paid by her, on the property described in the complaint, should be refunded, as, in that event, she would occupy towards the owners of similar prop^erty throughout the State who' had paid taxes thereon, practically the same relation which' she now occupies towards those in Greenwood county, who have Pot returned their property for taxation. It was inequitable ■ and unjust for them to refuse to return their property for taxation, and pay their proportionate part of the taxes; and it would be equally inequitable and unjust for her, to be excused from paying her proportion of the burden imposed upon the taxpayers. Two' wrongs do not make a right.”
The demurrer should, therefore, have been sustained.
2
The next question that will be determined, is, whether there was error in the instruction to the jury, that the plaintiff was not entitled to interest.
The contracts between the plaintiff and the defendant, were substantially as follows: °
“The water company agreed to supply water to the mill known as Camperdown Mills, also' for 13 single tenement houses and 24 double tenement houses occupied by operatives of said mills at the rate of 15 cents per 1,000 gallons, minimum $15 per quarter.. The contract was to' expire on January 1, 1911, but to‘ continue in force from quarter to quarter, unless 30 days notice of termination be given by either party. The quarter days were fixed as the first days of January, April, July, and October. The water rents jvere payable on said quarter days. Delinquency of 30 days justified cutting off water. Water to be measured by meters supplied by water company. Defendant agreed to the terms stated.”
The contracts did not provide for interest, and there was no testimony tending to> show, that the parties had agreed as to the amount that was due.
These views practically dispose of all questions presented by the exceptions.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.