American Brewing Co. v. City of St. Louis

Citation86 S.W. 129,187 Mo. 367
PartiesAMERICAN BREWING CO. v. CITY OF ST. LOUIS.
Decision Date15 March 1905
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by the American Brewing Company against the city of St. Louis. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Reynolds, Koehler, Reiss & Harlan and Franklin Miller, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondent.

MARSHALL, J.

This is an action to recover $1,975 paid by the plaintiff to the defendant for water furnished by the defendant to the plaintiff between the 1st of September, 1897, and the 1st of March, 1899, and used by the plaintiff in its business of manufacturing beer at its plant, located wholly in city block 851 in the city of St. Louis, and being one-quarter of 1 cent per 100 gallons, which it is alleged was that much in excess of the rate prescribed for such purposes by the city ordinance. The trial court sustained a general demurrer to the plaintiff's petition, the plaintiff refused to plead further, and judgment was entered for the defendant. Thereupon the plaintiff appealed.

The petition is as follows:

"(1) Plaintiff states that defendant is, and at all times hereinafter mentioned was, a municipal corporation, created, existing, and operating under and by virtue of the laws of the state of Missouri. (2) That the plaintiff is, and at all times hereinafter mentioned was, a manufacturing corporation, created, existing, and operating under and by virtue of the laws of the state of Missouri, and engaged in the business of manufacturing, brewing, and selling beer. (3) Plaintiff further states that in and by section 1742, art. 3, c. 46, of the Revised Ordinances of 1892 of the city of St. Louis, it is provided as follows: `All persons requiring the use of water applying for a meter shall have the right to pay for water in proportion to the quantity used, to be determined by a meter: provided, that in all such cases the water-taker shall pay the cost of the meter and of placing the same. The assessor and collector of water rates shall have the power to ascertain by meter measurement the quantity of water used for any purpose, and exact payment therefor at meter rates, and in such cases the rates fixed as a license rate shall not apply. In all cases where the water is to be paid for at meter rates the persons taking out license shall be charged the following rates on the average quantity of water used during the year, the year to be estimated at three hundred days: When the quantity used averages one thousand gallons per day or less, three cents per one hundred gallons. When the quantity used averages from one thousand to twenty-five hundred gallons per day, two and one-half cents per hundred gallons. When the quantity used averages from twenty-five hundred to five thousand gallons per day, two cents per hundred gallons. When the quantity used averages from five thousand to ten thousand gallons per day, one and three-fourths cents per hundred gallons. When the quantity used averages from ten thousand to twenty-five thousand gallons per day, one and one-half cents per one hundred gallons. When the quantity used exceeds an average of twenty-five thousand gallons per day, one and one-fourth cents per one hundred gallons. The meter rate for use of water from the water-works for purely manufacturing purposes and livery stables is hereby fixed at one and one-fourth cents per one hundred gallons: provided, that when the quantity used exceeds fifty million gallons annually by any manufacturing plant, located in one or more blocks adjoining each other, the rate shall be one cent per one hundred gallons.'

"(4) And that by section 1722 of said article 3 of said chapter 46 of said Revised Ordinances of 1892 it is provided that: `Licenses for the use of water from the city waterworks shall be issued by the assessor and collector of water rates, and the amounts charged shall conform to the rates established by this article. The rates assessed shall in all cases be paid in advance, and all licenses shall be dated on the first day of the month in which the same are granted. Licenses may be granted for six months or for one year as the applicant may desire, except as hereinafter provided in section 1724.'

"(5) The plaintiff further states that the ordinances hereinabove set out and referred to and made a part of this petition were in force and effect at all of the times herein mentioned.

"(6) The plaintiff further states that its brewery now is, and at all times herein mentioned was, entirely dependent for its supply of water, by it used and to be used in and about the manufacture and brewing of plaintiff's beer, upon the city waterworks, which at all times hereinbefore mentioned were, and now are, under the sole control and operation of the defendant, the city of St. Louis.

"(7) That the plaintiff, as it was authorized to do under the terms and provisions of said sections of said ordinances aforesaid, at all times hereinafter mentioned, applied for meters, and elected to pay for the quantity of water by it used at meter rates, and to be determined by meter, and complied with the terms of said ordinances by paying the cost of the meter by it used, and the cost of placing the same; that it thereafter, and during the period of time hereinafter mentioned, used large quantities of water, drawn from the said city waterworks, and that thereupon the assessor and collector of water rates of the city of St. Louis, who at all times had sole control and supervision of the assessment and collection of water rates, from time to time ascertained by meter measurement the quantity of water used by plaintiff, and demanded and received payment therefor from the plaintiff, and also estimated the quantity of water used by plaintiff, and demanded and received payment therefor from the plaintiff, and also estimated the quantity of water to be used, and demanded and received payments from the plaintiff for the estimated quantity of water used.

"(8) Plaintiff further alleges and avers that at all of the times hereinafter mentioned and at the present time the quantity of water thus used by it and to be used by it was and is largely in excess of fifty million gallons annually, and that it was and is obliged and bound to pay therefor at the rate of one cent per hundred gallons, and no more, as in the aforesaid section of said ordinance provided.

"(9) Plaintiff states that from time to time between the 1st day of September in the year 1897 and the 1st day of March, 1899, the plaintiff did use and consume on its premises, for purely manufacturing purposes, in city block number eight hundred and fifty-one (851) of the city of St. Louis, seventy-nine million twelve thousand and five hundred gallons (79,012,500) of water, all drawn from defendant's waterworks; that the water so used and consumed by the plaintiff, if divided into periods of six months, was as follows: During the period of time beginning with the month of September in the year 1897, and ending with the month of February, 1898, twenty-five million seventy-two thousand five hundred gallons (25,072,500); during the period of time, beginning with the month of March in the year 1898, and ending with the month of August in the year 1898, thirty-two million two hundred and eighty thousand gallons (32,280,000); during the period of time beginning with the month of September in the year 1898, and ending with the month of February in the year 1899, twenty-one million six hundred and sixty thousand gallons (21,660,000).

"(10) That the assessor and collector of water rates did demand and exact from the plaintiff for the water used as aforesaid payment at the rate of one and one-fourth (1¼) cents per one hundred gallons, and that the plaintiff did pay to the said assessor and collector of water rates for the water used during the period of time as aforesaid at the rate of one and one-fourth (1¼) cents per one hundred gallons, and that the sum so paid by the plaintiff to the assessor and collector of water rates amounted to nine thousand eight hundred and seventy-six ($9,876) dollars.

"(11) Plaintiff further states that, under and by virtue of the sections of the ordinance aforesaid, plaintiff should have paid for the water consumed as aforesaid during the period of time hereinbefore mentioned at the rate of one cent (1c.) per one hundred gallons; that the sum which the plaintiff should have paid to the assessor and collector of water rates amounts to the sum of seven thousand nine hundred and one dollars ($7,901).

"(12) Plaintiff further states that it made the payments hereinbefore mentioned at the special instance and request and upon the assessment of the said assessor and collector of water rates of said city of St. Louis, and plaintiff further states that said payments made by it as aforesaid were in excess of the legal and customary rate, as fixed by the ordinances hereinbefore referred to, in the sum of one thousand nine hundred and seventy-five dollars ($1,975).

"(13) That said payments were made by plaintiff to the said assessor and collector of water rates of said city of St. Louis, and for and in behalf of the said city of St. Louis, for the use of all water used by plaintiff from the waterworks of the said city of St. Louis during the...

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