Burke v. City of Water Valley

• Decision Date: 14 May 1906
• Court: Mississippi Supreme Court
• Parties: CLARENCE C. BURKE v. CITY OF WATER VALLEY

40 So. 820

87 Miss. 732

CLARENCE C. BURKE v. CITY OF WATER VALLEY

Supreme Court of Mississippi

May 14, 1906

FROM the circuit court of, second district, Yalobusha county, HON SAMUEL C. COOK, Judge.

Burke the appellant, was plaintiff in the court below; the city of Water Valley, the appellee, was defendant there. From a judgment in favor of defendant, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment reversed and cause remanded.

I. T Blount, for appellant.

When a city undertakes to furnish water for hire, it becomes liable as an individual would be liable. 30 Am. & Eng. Ency. Law (2d ed.), 404; 149 Mass. 410. A city, having undertaken to furnish water, must do as any other corporation or private person engaged in such business. 30 Am. & Eng. Ency. Law (2d ed.), 426. Nor can it cut off water because of a former occupant's delinquencies. 29 Am. & Eng. Ency. Law (1st ed.), 6; 152 Mass. 556. A city cannot refuse to turn on water because of the failure to pay cut-off charges. 30 Am. & Eng. Ency. Law (2d ed.), 420. On the measure of damages for failure to supply water, see 131 Cal. 192; 133 Cal. 556.

H. H. Creekmore, for appellee.

In operating waterworks, is the city of Water Valley acting in its governmental capacity, or is it acting in its private capacity, and liable for the manner in which it performs its work?

The difference between public and private powers conferred upon municipal corporations is sometimes hard to define; but if the power conferred has relation to public purposes and is for the public good, it is to be classified as governmental in its nature, and appertains to the corporation in its political character, and in that case the corporation is exempt from all liability, whether for nonuser or misuser. Springfield, etc., Co. v. Keeseville, 51 Am. St. Rep., 667. A city owning waterworks, not required but permitted by its charter, in the operation of the same acts in its governmental capacity, and is not liable in damages for negligence or mismanagement. Ib. Nor does the fact that water rents are paid by inhabitants of the municipality affect the question. Ib.

As was well said by the court in the case last cited, the operation of a system of waterworks is in no sense a private business, because their operation is for the benefit and protection of all the inhabitants. The operation of a system of waterworks and sewerage promotes cleanliness and health throughout the town, and there is a corresponding benefit to all the inhabitants. The collection of water rents is simply a mode of taxation, and any surplus which is collected--that is, more than enough to maintain the system--must necessarily go to the reduction of the general taxes.

It is to be borne in mind that the city of Water Valley is exercising a discretionary power in operating waterworks at all, being authorized by Code 1892, § 2948, so to do. In the operation of this system it becomes necessary to make rules and regulations governing the business and to enforce the prompt collection of water rents, and one rule respecting water rent was that it shall be charged to the owner of the property, and not to the tenant. This is a wise and reasonable rule; for the owner is usually a man of some responsibility, while the tenant is frequently a person moving about from place to place, financially irresponsible, and not coercible. The city of Water Valley, in making this rule, or regulation, was acting in its governmental capacity, and is not liable for any injury that may have resulted to appellant on account of its enforcement. Who is to make rules for, and govern the supply of water from, the waterworks system? Is it to be done by the city acting through its lawfully constituted authorities, or is it to be done by the whim, or caprice, of some tenant who rents a house from an owner who has failed to pay his water tax?

The act complained of in this case is not dissimilar from other acts of negligence in its legal effect, and the same rules as to the liability or nonliability of a municipal corporation should apply. A municipal corporation owning waterworks which supply private consumers, on the payment of water rent, is not liable to the latter for negligently laying its mains so near the surface of the ground that the water in consumers' pipes freezes and the supply is cut off, though the corporation may suffer the loss of the rent during the period when the water is not supplied. 2 Dillon on Mun. Corp., sec. 964; Smith v. Philadelphia, 22 Am. St. Rep., 731.

In the authorities cited last above it is said that the introduction of water by a city into a private house is a license which was paid for, and is not on the footing of a contract guaranteeing a constant supply.

Nor is such corporation liable to the owner of property destroyed by fire in consequence of neglecting to supply suitable engines or fire apparatus or to provide and keep in repair public cisterns. The court considered that powers of this nature conferred on municipal corporations are legislative and governmental, and distinguished the case from those in which the duty is purely ministerial. 2 Dillon on Mun. Corp., sec. 976.

Nor is the city liable for its neglect in cutting off water from a hydrant but for which a fire might have been extinguished. Tainter v. Worcester, 25 Am. St. Rep., 90.

The true rule to be deduced from the authorities on this question seems to be that a municipality, in electing to operate a waterworks plant, in fixing the district which it will supply with water, and in making the rules and regulations concerning the operation of the plant and the methods of collecting the rents, acts in a governmental and legislative capacity, and for any error or wrong done while so acting no action will lie. If this be the true rule, then this case should be affirmed; for if any wrong was done by the city, it was done while acting in its legislative capacity.

OPINION

WHITFIELD, C. J.

The city of Water Valley owns its waterworks. Among the rules established by the city respecting the management and government of its waterworks system one was that the rentals of water should be charged to the owner of the property, and not to the tenant; and a further rule was established that, if the water charge should not be paid, the water should be cut off, and no connection should be made until the delinquent charge was paid. The appellant rented a house within the water district, and tendered to the city authorities the amount due for water service, and...