Brand v. Bd. of Water Com'rs of Billerica

• Decision Date: 01 July 1922
• Citation: 136 N.E. 389,242 Mass. 223
• Parties: BRAND et al. v. BOARD OF WATER COM'RS OF TOWN OF BILLERICA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 223

136 N.E. 389

BRAND et al.

v.BOARD OF WATER COM'RS OF TOWN OF BILLERICA.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Case Reserved from Supreme Judicial Court, Suffolk County.

Mandamus proceeding by Adolph A. Brand and others against the Board of Water Commissioners of the Town of Billerica to compel the furnishing of water at the same rate charged other users of the same quantity of water. Reserved by a single justice on the pleadings and agreed statement of facts for the determination of the full court. Petition dismissed.

The town was engaged in furnishing water to its inhabitants and had adopted a schedule of rates ranging from 33 1/3 cents per 1,000 gallons where less than 40,000 gallons per annum were used to 18 cents per 1,000 gallons where over 500,000 gallons per annum were used, with minimum rates of $6 allowing 18,000 gallons consumption and $12 allowing a consumption of 40,000 gallons. The petitioner, the Suburban Land Company was receiving water from the town under a contract by which it was charged 30 cents a 1,000 gallons, though the amount furnished it largely exceeded 500,000 gallons per annum. The water so received was distributed by it to summer cottages rented or sold by it.

McVey & McVey and John W. Vaughan, all of Boston, for complainants.

Harvey, Harvey & Walsh and Frederic S. Harvey, all of Lowell, for respondents.

DE COURCY, J.

The individual petitioners make no claim to be furnished with water but join on behalf of the Suburban Land Company, Inc., which will be referred to herein as the petitioner. This corporation formerly was the sole owner of a tract of land in Billerica known as Nutting's Lake Park. It divided the land into house lots, and erected cottages thereon for summer residence. About 200 of these have been sold to various owners, and each year 300 are rented to tenants for a season beginning April 15 and ending October 15. Prior to July, 1917, the petitioner supplied with water all the houses on this tract, from a water system of its own. This system became inadequate, and the company applied to the board of water commissioners of the town to extend the water mains to said tract. The board consented to do this, provided the petitioner would pay for all water used by the occupiers of said premises at the rate of 30 cents per 1,000 gallons. Accordingly they extended the mains, installed one meter, and since have supplied water to this meter; from which point the water is distributed by the land company through its own pipes to each of the 500 houses upon said tract. All the water so furnished to the land company has been charged to it at the rate of 30 cents per 1,000 gallons, regardless of the amount consumed; and the company in turn furnishes this water to the occupiers of the 500 cottages, and charges therefor such rates as it and said occupiers may mutually agree upon.

The board of water commissioners, under the authority of the statute empowering the town to supply its inhabitants with water (St. 1897, c. 471) have issued a schedule of regulations and water rates which provides that all consumers shall pay annually in advance one of the minimum rates covering a certain amount of water as specified therein. The $6 rate allows 18,000 gallons consumption, and the $12 rate 40,000 gallons. All water used in excess of the quantity allowed under the minimum rate must be paid for quarterly according to the following schedule of rates:

‘Under 40,000 gallons per annum, 33 1/3 cents per M. gals. 40,000 gallons to 100,000 gallons per annum, 30 cents per M. gals. 100,000 gallons to 200,000 gals. per annum, 25 cents per M. Gals. 200,000 gallons to 500,000 gals. per annum, 20 cents per M. gals. Over 500,000 gallons per annum, 18 cents per M. gals.’

It is the contention of the petitioner that the rate charged to it of 30 cents per 1,000 gallons is unjustly discriminatory. Before considering the legal principles involved, it is to be noted that three salient facts are established. The first is that the average occupier in the town, paying the annual $6 or $12 minimum rate, pays 33 cents per 1,000 gallons. The amount of water used by the summer cottager probably would not exceed the allowance under these annual minimum rates. The second fact is that the Boston & Maine Railroad and Talbot Mills, which are the only other consumers of more than 500,000 gallons, and which pay therefor at the rate of 18 cents, use the water for commercial purposes. The third is that the petitioner does not seek to have water furnished to it as an occupier of any building; but its sole purpose is to resell and distribute that water to the occupiers of the 500 summer cottages. If the petitioner should receive the water at the 18-cent rate, and resell it to the cottagers at that price, these cottagers would be supplied at a considerably smaller cost than the permanent inhabitants of the town; while if the petitioner should resell it at the average rate paid by such inhabitants, it would receive a large profit on the resale of the town water.

It is conceded that the town of Billerica through its water commissioners is engaged in a public calling. Originally it seems to have been the accepted doctrine that, while a public service company must serve all at reasonable rates, there was no law against discrimination as such. Fitchburg Railroad v. Gage, 12 Gray, 393;Parker v. City of Boston, 1 Allen, 361;Spofford v. Boston & Maine Railroad, 128 Mass. 326. The modern tendency undoubtedly is to regard discrimination by such corporations as...