City of Greenwood v. Provine

• Decision Date: 10 May 1926
• Docket Number: 25533
• Citation: 108 So. 284,143 Miss. 42
• Court: Mississippi Supreme Court
• Parties: CITY OF GREENWOOD et al. v. PROVINE. [*]

108 So. 284

143 Miss. 42

CITY OF GREENWOOD et al. v. PROVINE. ^[*]

No. 25533

Supreme Court of Mississippi

May 10, 1926

Division B

1. MUNICIPAL CORPORATIONS. Decision of municipal authorities as to extension of municipal water system to new territory is final, in absence of abuse of discretion.

Question of extension of municipal water system from part of city where mains are laid to another part comprising new territory taken into corporate limits is within discretion of municipal authorities, whose decision is final, unless there is an abuse of discretion in exercise of their judgment thereon.

2. MUNICIPAL CORPORATIONS. Resident of municipality may not compel extension of water mains regardless of cost.

Resident of municipality, living in remote corner, may not compel city authorities to extend water mains to his premises regardless of cost; extension depending on reasonableness thereof considering demand for it, number of subscribers, and revenue to be obtained from furnishing water.

3. MUNICIPAL CORPORATIONS. Discretion of city authorities in extension of water system is limited to refusal to extend where to do so would be unreasonable (Hemingway's Code sections 6007-6012).

Under Hemingway's Code, sections 6007-6012, discretion to be exercised by city authorities in extension of city water system is limited to refusal to extend, where to do so would be unreasonable.

4 MANDAMUS. Mandamus will not lie to compel extension of municipal water system for connection to new addition over distance of 700 feet, the matter being discretionary with city authorities; mandamus can be used only to compel performance of mandatory duty of office.

Mandamus will not lie to compel city authorities to extend water mains to make water connection for resident of new addition over distance of 700 feet, since it is discretionary for city authorities whether extension shall be made, and mandamus can be used only to compel officer to perform mandatory duty of office, and not to compel action in particular way, it matter to be acted on is discretionary.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Mandamus by B. B. Provine against the city of Greenwood and others to compel respondents to furnish water to petitioner from the waterworks system of the municipality. Judgment granting the mandamus, and respondents appeal. Reversed, and case dismissed.

Judgment reversed, and case dismissed.

M. F. Pierce, for appellants.

I. The burden of proof was on the plaintiff to show by competent proof that he had a clear right to the relief prayed for and he should have established his allegations by a preponderance of the evidence. 26 Cyc. 476.

The writ of mandamus is an extraordinary writ and is never granted except in rare and extreme cases and then only when the proof is clear. The plaintiff below failed to establish the fact that he had ever complied with the rules and regulations of the city and said Light & Water Plant in making application for water. Then, again, this motion should have been sustained for the reason that mandamus proceedings will not lie on the demand of a private individual or citizen to force municipalities to extend their mains. See 27 R. C. L., p. 1409. We submit that the appellants should never have been required to offer any testimony as the plaintiff had not shown a right to any relief by his testimony and the motion to exclude should have been sustained.

II. The extension of the water mains as prayed for was not a reasonable extension. Lukrawka v. Spring Valley Water Co., 169 Cal. 318, 146 P. 640, Ann. Cas. 1916-D 266, 27 R. C. L. pp. 1410-1411; Lawrence v. Richards, 111 Me. 95, 88 A. 92, 47 L. R. A. (N. S.) 654; notes 125 A. S. R. 519, 47 L. R. A. (N. S.) 655.

These decisions hold that the demand must be a reasonable extension, depending on the cost and the revenue expended. The testimony of Dr. T. R. Henderson and that of Roy Scott, manager of the Greenwood Light & Water Plant is to the effect that this extension would not be a paying investment. This case is different from the cases where a public service corporation furnishes the water to inhabitants of a municipality under a franchise granted by such municipality. There is no franchise in this instance, but a case where the city owns and operates its own plant and we contend that this was not a reasonable extension.

III. The authorities hold that an extension will not be made on the demand of a private citizen. Lawrence v. Richards, 111 Me. 95, 88 A. 92, 47 L. R. A. (N. S.) 654 and note, quoted from 27 R. C. L. 1409; Lukrawka v. Spring Valley Water Co., 169 Cal. 318, 146 P. 640, Ann Cas. 1916-D 277, 27 R. C. L., pp. 1410-1411.

IV. A municipality which engages in furnishing water to its inhabitants has a governmental discretion as to the limits to which it is advisable to extend its mains. Mandamus will not lie to review the discretion of the managing and administrative officers in determining to what extent the system shall be extended and who shall be supplied. 18 R. C. L. 244; also 47 L. R. A. (N. S.) pp. 660-661; notes 125 A. S. R. 519; 47 L. R. A. (N. S.) 655.

R. C. McBee and W. M. Hammer, for appellee.

Does the record show plaintiff entitled to a writ of mandamus?

Mindful of their duty, the city authorities within a short period of time extended the waterworks so as to supply the inhabitants of North Greenwood and the Wilson and Harris Additions. They did not furnish water to the plaintiff who is an inhabitant of the Boulevard Addition.

If the water had already been supplied to him and a threat was being made to cut him off, he might enjoin. Caston v. Hutson, 104 So. 698. He might recover damages if he was damaged, but damages is not what he wants. The thing he wants is water.

A home is not habitable where water cannot be had for half the time. The plaintiff, an inhabitant of the city, has the right to force the city to supply him with water, and the proper method is by a petition for a writ of mandamus. The city, of course, had the right to determine in the first place whether or not it would operate a waterworks system. Having determined to do so, it could not discriminate between its inhabitants. The discretion that its officers had was whether they would operate at all. They have no discretion to serve water to one inhabitant and refuse it to another. 40 Cyc. 792, 38 Cyc. 757. Mandamus was held to be the proper remedy on the petition of the district attorney in State v. Benson, 108 Miss. 779. See also section 2533, Hemingway's Code.

The attorney-general and the district attorney sue in matters "affecting the public interest." But any private person who is interested is given exactly the same right. This is the method of procedure in Bothwell v. Consumers Co., 82 P. 533, 24 L. R. A. (N. S. ) 485, See also Hatch v. Consumers' Co., 104 P. 670, 40 L. R. A. (N. S.) 263.

There is no remedy by which an inhabitant of a city may require the city to furnish him with water so far as courts of law are concerned. There is no question raised by this record but that the defendants are the city and its officers. The question is, what is their duty? Is it their duty to furnish water to the inhabitants of the city? Burke v. Water Valley, 87 Miss. 732, 40 So. 820; Jennings v. Water Co., 100 Miss. 507. When once the city has exercised its discretion to operate a water plant, it cannot deny to an inhabitant of the city the use of water.

In some states the power is discretionary, as in Lawrence v. Richards, 88 A. 92, 47 L. R. A. (N. S.) 654, but there is no decision in Mississippi that intimates that such a discretion prevails. The contrary rule prevails. Birmingham Water Works v. City of Birmingham, 58 So. 204; Yazoo City v. Birchett, 89 Miss. 700, 42 So. 569. See also 27 R. C. L. 1410. No discretionary powers to supply water to inhabitants exists in a municipality. Section 5797, Hemingway's Code.

When the extension was made by the municipality, it did more than impose upon the inhabitants of the Boulevard Addition the duty to pay taxes. It extended to them the benefits of municipal life, including sewerage, lights, water, police protection and sanitary measures. As the situation now stands, the only thing that the city proposes to do is to collect taxes. They do not propose to give anything for such taxes. Such arbitrary and unconscionable conduct is not permitted under our present civilization.

Alfred Stoner, also, for appellee.

When a city engages in a private business, it is subject to the same proceedings in court as a private concern. In this respect the business conducted by the municipal authorities places them in an administrative rather than a judicial capacity. The business being conducted in an administrative capacity, any other procedure that might have been provided, even if provided, could not be regarded as an exclusive remedy, and in such cases mandamus lies, as was unequivocally held in Clark v. Board of Trustees, 117 Miss. 234, 78 So. 145. See also City of Montgomery v. Green (Ala.), 60 So. 900, 30 Am. & E. Ency. of Law 404; Wagner v. City of Rock Island (Ill.), 139 N.E. 545, 21 L. R. A. 519; Bailey v. New York, 38 Am. Dec. 669; Western Savings Fund v. Philadelphia, 72 Am. Dec. 730; Brown v. Salt Lake City, 14 L. R. A. (N. S.) 619; Lynch v. Springfield, 174 Mass. 430, 54 N.E. 871; Galveston v. Posnainsky, 62 Tex. 127, 50 Am. Rep. 517; Lloyd v. New York, 55 Am. Dec. 347; Illinois Glass Co. v. Chicago Telephone Co., 18 L. R. A. (N. S.) 124.

We know of no other remedy that appellee has--certainly no other remedy was plead or proved in the lower court, and no other remedy has been pointed out in this court.

R. C McBee, for appellee, in response to the following question...