174 Mass. 514 (1899), Janvrin v. Revere Water Co.

• Citation: 174 Mass. 514, 55 N.E. 381
• Opinion Judge: HOLMES, C.J.
• Party Name: JANVRIN et al. v. REVERE WATER CO.
• Attorney: [55 N.E. 381] Dewing & Cutler, for petitioners. B. N. Johnson, for Revere Water Co.
• Case Date: November 28, 1899
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 514

174 Mass. 514 (1899)

55 N.E. 381

JANVRIN et al.

v.

REVERE WATER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

November 28, 1899

COUNSEL

Page 515

[55 N.E. 381] Dewing & Cutler, for petitioners.

B. N. Johnson, for Revere Water Co.

OPINION

HOLMES, C.J.

The only question raised by the demurrer is the constitutionality of the provision of St. 1897. c. 336, § 1, under which the petitioner proceeds. This section amends section 23 of the metropolitan water supply act (St. 1895, c. 488). It embodies a scheme which forbids cities or towns within 10 miles of the state house to use water for domestic purposes from any source not now used by them, except under the statute. This

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prohibition, standing alone, might seem to put into the hands of a water company now supplying any such town or city the power to make exorbitant charges, by giving it a monopoly. Therefore, with a view, no doubt, of dealing with the danger, the section just referred to provides as follows: 'The selectmen of a town or any persons deeming themselves aggrieved by the price charged for water by any such company may, in the year eighteen hundred and ninety-eight and every fifth year thereafter, apply by petition to the supreme judicial court, asking to have the rate fixed at a reasonable sum, measured by the standard above specified; and two or more judges of said court, after hearing the parties, shall establish such maximum rates as said court [55 N.E. 382] shall deem proper; and said maximum rates shall be binding upon said water company until the same shall be revised or altered by said court pursuant to this act.'

When we first read this sentence, the impression of some of us was that it was an attempt to make out of this court a commission for the taking of one step in fixing a legislative rule of future conduct, irrespective of any present relation between the parties concerned, and that it was no more competent for the legislature to impose or for us to accept such a duty than if the proposition were to transfer to us the whole lawmaking power. See Smith v. Strother, 68 Cal. 194, 8 P. 852. But upon further reflection it seems to a majority of the court that the act can be sustained. If we can do so without perverting the meaning of the act, we are bound to construe it in such a way that it will be consistent with the constitution, and we think that this can be done without any wresting of the sense, even if we should doubt (which we do not intimate that we do) whether the legislature had the limit of its power distinctly in mind.

The statute goes upon the footing that every taker of water from the companies in question has a right to be furnished with water at a reasonable rate. No one questions the power of the legislature to require these water companies to furnish water to the takers at reasonable rates ( Attorney General v. Old Colony R. Co., 160 Mass. 62, 86, 87, 35 N.E. 252, 22 L. R. A. 112; Waterworks v. Schottler, 110 U.S. 347, 354, 4 Sup. Ot. 48, 28 L.Ed. 173; Budd v. New York, 143 U.S. 517, 537, 549, 552, 12 S.Ct. 468); and this statute does require the companies to do so, and thereby gives to water takers a corresponding

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right, or declares that they have it. It is with the relations between actual water takers and the companies that the statute calls on this court to deal. It does not undertake merely to make of the court a commission to determine what rule shall govern people who are not yet in relation to each other, and who may elect to enter or not to enter into relations as they may or may not like the rule which we lay down. It calls on us to fix the extent of actually existing rights. With regard to such rights, judicial determinations are not confined to the past. If it legitimately might be left to this court to decide whether a bill for water furnished was reasonable, and, if not, to cut it down to a reasonable sum, it equally may be left to the court to enjoin a company from charging more than a reasonable sum in the immediate future.

But it has been regarded as competent for a court to pass on the reasonableness of a rate, even when established by the legislature, to the extent of declaring it unreasonably low. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702; Railway Co. v. Wellman, 143 U.S. 339, 344, 12 S.Ct. 400, 36 L.Ed. 176; Reagan v. Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014; Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 42. A fortiori when the rate is established by the company, and it has undertaken to charge the plaintiff a sum which he alleges to be unreasonable, and the legislature, in terms, has referred him to this court, this court has 'jurisdiction to inquire into that matter, and to award to the [plaintiff] any amount exacted from him in excess of a reasonable rate.' Reagan v. Trust Co., 154 U.S. 362, 397, 14 S.Ct. 1047, 1054, 38 L.Ed. 1014, 1023.

It is true that in Reagan v. Trust Co. it was said, also, that 'it is not the function of this court to establish a schedule of rates' (154 U.S. 400, 14 S.Ct. 1055; 38 L.Ed. 1024); and to that proposition we fully agree. But it will be observed that the proposition is laid down in connection with the statement that 'the challenge in this case is of the tariff as a whole, and not of any particular rate upon any single class of goods.' Probably to prepare a new schedule or to rearrange the old one would have gone beyond the scope of the rights immediately...