State ex rel. Hallauer v. Gosnell

61 L.R.A. 33, 93 N.W. 542, 116 Wis. 606, 1903 Wisc. LEXIS 224

• Court: Wisconsin Supreme Court
• Decided: February 3, 1903
• Status: Published

Opinion

Marshall, J.

Jurisdiction of the common council to pass the ordinance is challenged upon two grounds: First, because authority independently of the board of public works to fix rates was taken away from the common council by •cb. 162, Laws of 1887; second, because tbe charter does not grant authority to require consumers of water to measure the same through meters provided at their own expense.

We cannot escape the conclusion that the purpose of dropping out of the enumerated powers of the common council unlimited power to fix water rates and transferring initiatory authority in the matter to the board of public works, its action not to have the force of law till approved by the common council, was to make that method of dealing with the subject exclusive. Indeed, it does not seem that the legislative idea in the change is open to reasonable controversy. It is as plainly set forth as if a special law on the subject had been passed, giving to the board of public works power to fix the water rates, subject to the approval of the common council, and expressly repealing the existing law lodging such power absolutely in the council. The argument that, since the action of the board of public works is without force until approved by the lawmaking power of the city, its common council, inferentially such council has authority to take the initiative in the matter and legislate regardless of the board, is contrary to the settled doctrine that where the charter of a city provides the manner in which the will of the people shall be exercised, resort to any other method is usurpation. Saxlon v. Beach, 50 Mo. 488; Irvin v. Devors, 65 Mo. 625.

It is said that the fixing of water rates is the exercise of legislative power and that the charter expressly makes the board of public works a mere executive body. Whether the fixing of water rates is so distinctly the exercise of legislative power as not to fall, in any reasonable view of it, within the ■scope of executive authority, and whether, if it is the exercise of legislative authority, it can be granted to a body of city officers elected by the people other than the city council, are questions not necessary to be considered. Granting all that is claimed on that branch of the case, so far as the principle thereof is concerned, it does not help respondent so far as we can see, because tbe power of tbe board of public works to fix rates amounts to no more than authority to recommend by tbe adoption of a by-law embodying tbe judgment of tbe board, leaving tbe question of whether such recommendation shall have tbe force of law to tbe judgment of tbe common council in tbe exercise of its legislative authority. It cannot be doubted that tbe legislature may prescribe tbe conditions upon which a common council may legislate upon any matter, where all legislative authority is vested in it, and may limit tbe scope of its action. Taking tbe view most favorable to respondent, that is all that seems to be embodied in tbe charter under consideration. In effect, tbe common council is empowered to fix water rates only by acting upon tbe recommendation of tbe board of public works.

Tbe provision in tbe ordinance permitting certain consumers to have meters at their own expense and requiring those using a service pipe larger than three-fourths of an inch in diameter to use meters, seems to be within tbe express powers given to tbe common council under tbe charter. As indicated in tbe statement of facts, in tbe general enumeration of tbe powers of tbe council, it is authorized to legislate by adopting such means as it may deem expedient h> prevent waste of water and to protect and regulate tbe waterworks, and to enforce such legislation by suitable penalties. In tbe chapter devoted expressly to the subject of waterworks, by sec. 9 tbe council is empowered to legislate as to means for ascertaining amounts to be paid as water rates by consumers; and by sec. 12 it is empowered to legislate in its discretion for tbe “protection of the works and the use thereof” and to enforce any and all of such legislation by suitable penalties. We do not doubt that under either tbe provision for tbe prevention of waste or tbe provision to make regulations for ascertaining tbe amount to be paid by consumers of water, tbe requirement contained in tbe ordinance for consumers, in certain cases, to use meters, and to provide and keep them in repair at their own expense, is legitimate. It is a matter of common knowledge that the use of meters has a double purpose, and that the dominant one, as regards the party furnishing the opportunity to take water, is to prevent useless consumption thereof. Secondarily to that, and more for the benefit of the consumer than the party responsible for keeping up an adequate supply of water under proper pressure, is the measurement of the water. The consumer is burdened with the expense of providing a meter and keeping it in repair, but has the countervailing advantage, by the exercise of prudence in the use of the water, of paying only for the amount actually taken from the public supply, which, in most eases, by reasonable attention, can be made much less than what he would be required to pay by the schedule of rates where meters are not used.

The idea advanced by appellant’s counsel, perhaps having some support in the authorities called to our attention, that a meter is a mere convenience solely for the party furnishing the water, is very wide of the mark. With as much propriety it might be said that the service pipe, curb-stop, or use of self-closing faucets and other appliances that might be mentioned, are mere conveniences for the party furnishing the water. They are necessaries,' required as a condition of the consumer’s taking water from the public supply, made so by such legislative authority as is contained in the charter before us, — that to prevent waste of water, to protect the use of the water service, and to prescribe the methods of determining the amount to be charged for water. The whole scheme ■of the charter is that the consumer shall bear all of the expense necessary to enable him to take water from the public supply. The service pipe, laid in the street from its connection with the water main to the curb stop, under the scheme of the charter, is required to be'put in by the consumer or the owner of the property to be served.

We axe tillable to discover anything in the cases cited to' onr attention by appellant’s counsel, when properly understood, seriously conflicting with the views above expressed.. The question involved in Red Star S. S. Co. v. Jersey City, 45 N. J. Law, 246, was this: Can a city, under a system which contemplates that it shall pay all the expenses of procuring and distributing water to consumers, provide a water-meter, locate it on property to be served, and compel a subsequent occupant of the property as lessee to pay for the meter as a condition of enjoying the water service? In deciding that question language was used upon which appellant’s counsel rely, somewhat out of harmony with the conclusions here reached. We will not refer thereto at length. Much of it, if warranted at all by the facts of the case, is because of the peculiarities of the charter under consideration not found in that before us. It has this glaring infirmity: It refers to a water meter as a mere contrivance simply for use in distributing water so as to regulate quantity to price, — a contrivance merely for the convenience of the party furnishing the water. The fallacy of that is clearly shown in a case to which we will presently refer. If true in any view of the matter, it is only so as to large consumers. As to the great mass of them it certainly is not: In general, as we have said, the primary purpose of using water meters is to prevent the unnecessary use of water. Many consumers habitually abuse the privilege to take water. They may do it in a way extremely difficult to detect, and to greatly- impair the efficiency of the water service for many purposes, fire protection and operation of motors being significant among them. Meters are used to guard against the danger of carelessness in leaving faucets and hydrants open when there is no necessity therefor. That idea was in mind in drafting the ordinance before us, as indicated by the provision that the use of meters by consumers using large service pipes was not left optional with them, while the use of meters on smaller pipes was so left. Tbe danger of unduly and unnecessarily reducing water pressure by open hydrants and faucets, especially on large service pipes, was deemed so great that, meters were required, it being supposed, naturally, that as a rule open faucets or hydrants would not be allowed under a meter system when water was not needed. We apprehend that if the charter which the New Jersey court had under consideration had plainly indicated that consumers were expected to take water from the main supply pipe at their own expense and under such regulations and conditions as the city council might in its discretion see fit to adopt, broad powers being given to prevent waste, to preserve the use of the water system, and to make and enforce needful regulations for the ascertainment of the amount which consumers of water should pay for the privilege of drawing water from the water main, some expressions found in the opinion would not have been made.

In Spring Valley Waterworks v. San Francisco, 82 Cal. 286, 22 Pac. 910, 1046, another case referred to by counsel, the question decided was this: Is a requirement in an ordinance that the party furnishing water shall be at the expense of the meter to measure the water, and shall charge only for water actually used as indicated by the meter, a reasonable regulation, there being nothing in the organic law of the water company inconsistent therewith? Whether a requirement that consumers shall furnish meters a.t their own expense as a condition of enjoying the water service, under charter regulations such as govern the case before us, was not involved. The language of the opinion, “The expense of water meters could not be imposed upon the consumer,” must be taken with reference to what was under discussion in the case. True, Red Star S. S. Co. v. Jersey City, 45 N. J. Law, 246, was cited, but we do not see that it has anything to do with the point under discussion. In any event, the delegated power exercised in passing the ordinance there under discussion was dissimilar in many material particulars tó tbat involved in tbis case. The question was whether the company might be compelled to bear the burden of putting in meters, not whether consumers might be compelled to bear such burden.

We find the general subject of whether a consumer of water can be required to measure what he takes from the public supply through a meter provided at his own expense, the corporation being authorized to charge meter rates, and its system contemplating mere permission to consumers to take water from its water mains, as in this case,- was discussed at considerable length in Sheffield Waterworks Co. v. Bingham, L. R. 25 Ch. Div. 443. The conclusion reached was that it was competent for a water company, under the circumstances suggested, to impose upon the consumer the burden of providing at his own expense his water meter. The reasoning leading to such conclusion may well be adopted here. We quote from the opinion:

“The company are bound to put mains down in the streets. They are bound to keep those mains charged with water at high pressure, and having done that every householder in Sheffield is free either to make use of the water in that main or to decline to make use of it as he pleases. If he desires to make use of it, he himself makes the communications between his own house and the main, subject, of course, to all proper provisions for taking care that he does no injury to the waterworks company in making the connection; and subject also to this, that the connections must be properly made, so as not to abstract more water than he is entitled to take, and not to do any injury of any sort or description to the waterworks company.”

The court, by Justice PearsoN, further reviewing the position taken, — that the water company, not the consumer, should furnish the meter; that if it charged meter rates it should measure the water at its own-expense the same as a merchant in selling tea to his customer weighs the same out of his stock, — said, in substance: The argument is falla-oious because, strictly speaking, tbe company does not furnish the water as a merchant furnishes tea. It provides a supply of water under pressure under such conditions that the consumer can, under its regulations, if he sees fit, connect an .appliance of his own therewith and take water therefrom. In other words, the company furnishes the opportunity outside of the consumer’s property line, at its water main, for him to supply himself with water. He takes it. He is granted the right to take it under certain conditions. The company, from the necessities of the situation, cannot know when he takes it. He is the only person in a position to measure the water, since he takes it whenever he likes and in whatever quantities he likes, under such conditions as may be prescribed to prevent his conduct from interfering with others enjoying the same opportunity. The company is entitled to have the measurement of whát he takes made by him and in such a way that it will be reasonably protected from false measurements or reports. By the automatic method involving the use of the meter,’ that is accomplished. The consumer measures the water by the act of taking it, and informs the company of the result by exhibiting to it the register, which it can see only by his permission to come upon liis premises for that purpose. The burden of the expense thereof is legitimately cast upon the consumer as a condition of his enjoying the privilege of taking water from the source •of supply at his disposal.

A contrary view is favored in an article found in 27 Am. Law Eeg. (N. S.) 277 — 283, reference being there made to Sheffield Waterworks Co. v. Carter, L. R. 8 Q. B. Div. 632, which is not entirely without warrant, there being some language used in the opinion in that, case and in the syllabus thereto' inconsistent with what was decided in the later case. But Justice PeausoN, in writing the later opinion, reviewed at length and critically analyzed all that was said on the subject in-the former case, and concluded that it did not decide the point which was the precise one at issue in the case before him. He said:

“I can only say, haying given a good deal of attention to> this case, that I believe the learned judges who decided that case would all think I was erring very greatly indeed, and charging them with something they never intended to do, if I were to come to the conclusion that they had any notion of deciding the question which is before me to-day.”

A point is made that the meter requirement in the ordinance fatally discriminates against consumers using large service pipes, in that it imposes upon them the burden of procuring a meter, while it leaves the matter of using a meter by others optional. We are unable to say that as a matter of law the classification of consumers thus made is unreasonable. The power vested in the council to protect the use of the-waterworks is discretionary in character and conferred in broad general terms. It would require a very plain case of abuse of power in not giving equal opportunities to all to' take water under like conditions and circumstances, to warrant the court in interfering in such a case as that presented by the ordinance in question. We can see a good reason why there are dangers to be guarded against where water is taken from a water main through a large service pipe, which, if they exist at all, do not to the same extent where a small service pipe is used. The different conditions may and probably do justify the classification made in the ordinance.

From what has been said, that part of the ordinance under consideration relating to meters, and everything in it except the matter of fixing rates, were proper subjects for legislation by the common council independently of the board of public works. The requirement for meters being valid, a schedule of rates to be applied to meter measurements was necessary.. It was the duty of the board of public works to take the matter in hand and by a proper by-law submit its conclusion tc the common council for approval. That such method of treating tbe matter was necessary to a legal establishment of the meter rates, we have no doubt. But, since there is nothing inequitable that we can see in the rates fixed by the ordinance, and it was the duty of the board to adopt a by-law on the subject, and in the end no rates could have been established not approved by the common council, — no other rates than the ones which the council adopted unless they consented, — there is nothing in the ordinance inflicting any real injury upon the relator. At most there is a fatal irregularity from a legal standpoint, in doing that which might have been done legally by observing strictly the charter method. From the standpoint of equity, that occupied by the court in granting or denying the use of a discretionary writ, relator is not injured at all by the ordinance complained of. As regards any pecuniary injury that could in any event have been inflicted upon him, it is believed that it would be trifling as compared with the disturbance of public affairs which would result from allowing every individual member of a city community, upon every trifling pretext involving the validity of an ordinance, to force it to defend its jurisdiction before the courts upon a common-law writ of certiorari. After careful consideration of the matter we have concluded that it is an abuse of judicial discretion to allow the writ of certiorari in such a case as is here presented. The mischief that might result from a rule permitting every individual, not smarting under any substantial injury, nor any not remediable by ordinary methods, to make the court, in effect, a sort of upper house,, to review all jurisdictional matters in municipal legislation, involving matters not of a really prejudicial character, is very great. The law is well settled that a suitor has no absolute right to a remedy by common-law writ of certiorari. "When to permit and when to deny the use of it rests in the sound discretion of the court. Even on appeal to this court, after the lower court has allowed such use, it is proper, where its action seems plainly wrong, upon a reversal of the judgment to remand tbe proceedings witb directions to dismiss "tbe writ. Knapp v. Heller, 32 Wis. 467; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N. W. 167. Tbe common rule is that where tbe relator shows no equity, and, so far as bis legal rights go, no injury not remediable at law, it is proper to deny tbe use of tbe writ. It is considered that -the cases cited voicing tbe doctrine of this court establish tbe rule to be also that, where there are these additional elements to those above mentioned, — a private individual upon tbe •one side as relator, witb a trifling injury, if any, to be redressed, and that remediable by ordinary means, and tbe public on tbe other, — it is an abuse of discretion to permit tbe use of tbe remedy.

Tbe logical result of tbe foregoing is this: Tbe trial court ■should have considered tbe use of tbe writ, under tbe circumstances of this case, as presenting a question of its own jurisdiction, and quashed tbe proceedings witb or without a motion to that effect, as tbe circumstances required. Having proceeded to decide tbe matter presented on its merits, it should have sustained tbe jurisdiction of tbe common council ■only as to those portions of tbe ordinance that do not deal witb tbe subject of fixing rates, and that only upon tbe .ground that such portions are separable from tbe balance of tbe ordinance. It is considered that they are separable. As tbe matter stands now tbe judgment is erroneous, and it seems best that it should be reversed in toto and tbe cause remanded witb directions to dismiss tbe writ.

By the Court. — So ordered.