City of Covington v. Sohio Petroleum Co.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtMONTGOMERY
Citation279 S.W.2d 746
PartiesThe CITY OF COVINGTON, Kentucky, Appellant, v. SOHIO PETROLEUM COMPANY, Inc., Appellee.
Decision Date20 May 1955

Page 746

279 S.W.2d 746
The CITY OF COVINGTON, Kentucky, Appellant,
v.
SOHIO PETROLEUM COMPANY, Inc., Appellee.
Court of Appeals of Kentucky.
May 20, 1955.

Page 747

Rodney S. Bryson, Ralph P. Rich, Covington, for appellant.

Hughes, Clark & Lee, Covington, for appellee.

MONTGOMERY, Judge.

This action, brought by appellee, Sohio Petroleum Company, Incorporated, sought a declaration on the right of the appellant, City of Covington, Kentucky, to establish water rates for consumers located outside the corporate limits of said city. The judgment appealed from held appellee to be a nonresident consumer of water and appellant's ordinances to be ineffective insofar as they sought to establish water rates for nonresident consumers. The case was tried on an agreed statement of fact.

Three questions were presented:

(1) Was the refinery operated by appellee a nonresident water consumer of the City of Covington?

(2) Were the rates and services of said city for water sold to consumers outside its corporate limits subject to the jurisdiction of the Public Service Commission under KRS Chapter 278?

(3) Was a justiciable issue presented as to the right of the city to discontinue

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water service to the refinery as a nonresident water consumer?

Appellee is an Ohio corporation with its home office in Cleveland, Ohio. Appellant is a city of the second class under the statutes of the Commonwealth of Kentucky. One phase of appellee's operations is conducted at a refinery located outside and adjacent to the corporate limits of appellant. Appellee is a taxpayer of appellant and owns other real estate lying within the boundary of the city. Water is carried from a point adjacent to the property owned by appellee in the city through a line into the refinery of appellee. The line which serves the refinery was installed at the cost of the city. At the request of appellant, the water meters for their protection were located within the manufacturing area of appellee and outside the city. Appellant's water plant is large and modern, with a daily capacity of 30 million gallons. It produces about 12 million gallons per day, of which one-half is sold to customers outside the city.

For many years past, appellee has been purchasing water in substantial quantities from appellant. At first, the water was sold under a contract at an industrial rate lower than the rate later set out by ordinance. This contract expired in 1948. The rates to be charged customers located both inside and outside the corporate limits of the city were fixed successively by three amendatory ordinances numbered: 0-11-46, passed March 21, 1946; 0-17-48, passed August 12, 1948; and 0-38-52, effective November 1, 1952. Under ordinance number 0-11-46, appellee would have been charged the same water rates as paid by resident customers except for the contract that expired in 1948. After expiration of the contract, appellee was charged at the nonresident consumer rate for water but refused to pay this charge and continued to pay at the same rate applicable to residents of the city. The difference in the amount of billings by appellant and payments made by appellee was $44,949.81 when appellant's answer and counterclaim were filed in this action.

It is necessary to construe the pertinent ordinances to determine whether appellee is a nonresident consumer of water. In construing a city ordinance, the court will look to the ordinances as a whole to ascertain the intention of the lawmaking body and the purpose sought to be accomplished thereby. Weyman v. City of Newport, 153 Ky. 487, 156 S.W. 109; Polsgrove v. Moss, 154 Ky. 408, 157 S.W. 1133; City of Mayfield v. Reed, 278 Ky. 5, 127 S.W.2d 847; 37 Am.Jur., Municipal Corporations, Section 187, Page 826.

Ordinance number 0-38-52, under which it is sought to charge appellee, uses this language:

'Any consumer, whether individual or corporate, located outside of the corporate limits of the City of Covington, to whom is supplied water by the City * * * shall be known and designated as a 'non-resident' Bulk user * * *.'

Section 4 of this ordinance provides:

'There shall be charged for water supplied to consumers located outside of the corporate limits of the City of Covington to whom is supplied water * * *.'

This is the part of the ordinance under which appellant is charging appellee for water. Similar language is used in the previous ordinances.

In Union Portland Cement Co. v. State Tax Commission, 110 Utah 135, 170 P.2d 164, 171, consumer was defined as: "one who uses economic goods and so diminishes or destroys their utilities; opposed to producer; and 'consume' means to use up, expend, waste, devour, with synonyms destroy, swallow up, engulf, absorb, waste, exhaust, spend, expend, squander, lavish, dissipate, burn up." This definition was approved in St. Paul & Tacoma Lumber Co. v. State, 40 Wash.2d 347, 243 P.2d 474.

The water used and consumed by the refinery was taken from the city main at a point inside the corporate limits of the

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city in an area owned by appellee....

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12 practice notes
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • February 9, 1962
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Sup......
  • Kentucky Indus. Utility Customers, Inc. v. Kentucky Utilities Co., Nos. 97-SC-1091-D
    • United States
    • United States State Supreme Court (Kentucky)
    • December 17, 1998
    ...437 S.W.2d 934 (1969); Davis v. Commonwealth Life Ins. Co., Ky., 284 S.W.2d 809 (1955); City of Covington v. Sohio Petroleum Co., Ky., 279 S.W.2d 746 (1955); ITT Commercial Finance Corp. v. Madisonville Recapping, Ky.App., 793 S.W.2d 849 There is simply no evidence of a clear legislative in......
  • Heleringer v. Brown, No. 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 7, 2003
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Sup......
  • Heleringer v. Brown III, 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 19, 2003
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F. Su......
  • Request a trial to view additional results
12 cases
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • February 9, 1962
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Sup......
  • Kentucky Indus. Utility Customers, Inc. v. Kentucky Utilities Co., Nos. 97-SC-1091-D
    • United States
    • United States State Supreme Court (Kentucky)
    • December 17, 1998
    ...437 S.W.2d 934 (1969); Davis v. Commonwealth Life Ins. Co., Ky., 284 S.W.2d 809 (1955); City of Covington v. Sohio Petroleum Co., Ky., 279 S.W.2d 746 (1955); ITT Commercial Finance Corp. v. Madisonville Recapping, Ky.App., 793 S.W.2d 849 There is simply no evidence of a clear legislative in......
  • Heleringer v. Brown, No. 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 7, 2003
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Sup......
  • Heleringer v. Brown III, 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 19, 2003
    ...S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to be given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F. Su......
  • Request a trial to view additional results

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