City of Knoxville v. Knoxville Water Co.

• Decision Date: 02 November 1901
• Parties: MAYOR, ETC., OF CITY OF KNOXVILLE v. KNOXVILLE WATER CO. et al.
• Court: Tennessee Supreme Court

64 S.W. 1075

107 Tenn. 647

MAYOR, ETC., OF CITY OF KNOXVILLE v. KNOXVILLE WATER CO. et al.

Supreme Court of Tennessee.

November 2, 1901

Appeal from circuit court, Knox county; Jos. W. Sneed, Judge.

Action to enforce reduced water rates by the mayor and aldermen of the city of Knoxville against the Knoxville Water Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Pickle & Turner and Reuben L. Cates, for appellant.

Chas T. Cates, Jr., for appellees.

WILKES J.

This suit arises out of an effort upon the part of the city of Knoxville to enforce an ordinance which affects the defendant water company, and, as it claims, seriously interferes with its operations, and unlawfully encroaches upon its franchises and vested rights. The water company has a valuable plant at Knoxville, which it has erected and operated under contracts and ordinances made by the city of Knoxville, and it has valuable franchises in the furnishing of water to the city and people. The relative rights of the city and water company, and their obligations one to the other, appear to have been drawn into sharp controversy, when the city, on the 30th of March, 1901, passed and approved the ordinance in controversy in this suit, specifying a maximum rate to be charged to consumers by any firm or corporation in the city of Knoxville, and providing a high penalty for a violation of its terms and provisions, as set forth in its third section to wit: "Sec. 3. Be it further ordained, that it shall be unlawful for any person, company, firm or corporation or their officers, agents, servants or employees, supplying water to the inhabitants of the city of Knoxville to charge demand or collect for water so supplied, more than the rates hereinbefore set forth in section 1 of this ordinance; and it shall also be unlawful for any such person, company, firm or corporation or their officers, agents, servants, or employees to cut off or otherwise interfere with the supply or refuse to furnish a supply of water to any consumer for failure to pay for same, provided such consumer tenders in lawful money, the charge for such water at the rates aforesaid, and any violation of the provisions of this section of this ordinance, shall be a misdemeanor, and upon a conviction thereof before the recorder, the offender shall be punished by a fine of not less than $10.00 nor more than $50.00 for each offense." The defendant company continued to charge the rates provided in a contract and previous ordinance of October 20, 1899, which (with the exception of some rates in the Lonsdale-Beaumont ordinance) were slightly in excess of the rates and charges provided in said ordinance of March 30, 1901, and thereupon this suit was instituted, and the defendant was charged with unlawfully charging, demanding, and collecting of W. K. McClure, for water furnished and to be furnished him in the city of Knoxville, more than the rates fixed therefor by the ordinance of March 30, 1901. McClure was the agent for J. S. Gratz, who then lived in the city of Chicago, but was the owner of three houses and lots in the city of Knoxville, and outside of the Tenth ward. In 1896 the defendant company made a contract with Gratz to supply water to the premises owned by him, which contract is as follows: "Knoxville Water Company. Service No. 2,850. Knoxville, Tennessee, Sept. 17, 1896. The undersigned hereby applies to the Knoxville Water Company for a supply of water at premises No. 706 High street, owned by J. S. Gratz, occupied by tenants, to be used for domestic purposes only; and I hereby agree to use and pay for the same in accordance with the rates, rules, and regulations of the Knoxville Water Company as now or hereafter in force, and which are made a part of this contract; and I further agree that said company may enter upon any land owned by me, and in which I may have such right, and place therein, upon the terms provided therefor, all the pipes that may be used for furnishing such supply, and may cause the same to be inspected and repaired at any future time as occasion may require." This contract was signed by J. S. Gratz, by his agent, W. K. McClure. The water in controversy was furnished to tenants living in the property owned by Gratz, for whom McClure was agent, and who, as such agent, represented the owner, Gratz, in renting the property; and the bills were rendered to W. K. McClure as agent, and paid by him in that capacity, but actually paid out of funds belonging to the owner, J. S. Gratz; and the bills so rendered for said water were in accordance with the rates prescribed by said contract and ordinance of October 20, 1899. The difference between the rates charged by defendant and paid by Gratz, through McClure, for the three premises to which the water in controversy was furnished, and what would have been paid under the ordinance of March 30, 1901, was $1.15; that is, 50 cents, 42 cents, and 23 cents, respectively.

The first question presented is as to the validity of the ordinance of March 30, 1901, because of the manner of its passage by the city council. The charter of the city of Knoxville provides that no ordinance shall become a law without first having been read and passed at three several meetings; that is, at three several regular meetings of the board, or at three several regular meetings or valid "call" or "special" meetings, which the mayor, by said charter, is authorized to call. The regular meetings of the board of mayor and aldermen of the city of Knoxville are on the first and third Friday nights of each month. The ordinance of March 30, 1901, was passed on its first reading at a special meeting on March 9, 1901, on its second reading at a regular meeting on March 15, 1901, and on its third and final reading at a special meeting on March 30, 1901. The mayor and 11 aldermen--that is, one alderman for each ward--constitute the board of mayor and aldermen of the city of Knoxville. At the special meeting of March 30, 1901, Alderman Cleage, representing the Sixth ward, and Alderman Trigg, representing the Fifth ward, were not present, and were not notified, and no effort was made to notify them, nor did they have any notice or knowledge of said meeting. Alderman Trigg had removed from the city, and notice to him, it is conceded, was not necessary. Alderman Cleage was not present at the meeting of March 30, 1901, was not notified of that meeting, and had no knowledge thereof. When Alderman Cleage was elected an alderman for the Sixth ward of the city of Knoxville, he was then, as he was in March, 1901, residing with his mother on Broad street, in the Sixth ward of the city of Knoxville, but he was in the employ of the Southern Railway, with headquarters principally at Asheville. He was active in the discharge of his duties as an alderman, attended nearly all of the regular meetings, and such special meeting as he had notice of, and was usually informed by telegram of special meetings; and had attended as many as three special meetings in one week, coming more than 100 miles to do so. No effort was made to notify Alderman Cleage of either of these special meetings. On request for a finding of facts, the trial judge found that it was practicable to have given Alderman Cleage notice of these special meetings, and that it was practicable for him to have attended the meeting of March 9, 1901, and that no emergency existed for the passage of the ordinance in question at these special meetings.

The first assignment of error we consider is that the trial judge erred in holding that the mayor was bound to give Alderman Cleage notice of the special meetings of March 9 and March 30, 1901, these being the dates when the ordinance in question was passed on its first and third readings, and for failure to give such notice the ordinance is void. The contention is that said Cleage was out of the city and state and not within summoning distance, and no personal notice to him of said meetings was practicable, and therefore the action of the council, without notice to him was not thereby invalidated. In support of this assignment authorities are cited. The fact that Alderman Cleage was not notified of the meeting, and that no attempt was made to notify him, fully appears, and is not controverted. The general rule is that every member of a municipal council is entitled to reasonable notice of special meetings, and that no important action can be lawfully done by such meeting unless such notice has been given, or unless the members not notified actually attend, and participate in the business of the meeting. Land Co. v. Jellico, 103 Tenn. 321, 52 S.W. 995. It is said that the rule is quite rigidly stated in that case, but that, conceding it to lay down the general doctrine, still there are exceptions to such general rule, and that one of these exceptions excuses notice when it is not practicable to give it; and for this proposition are cited in the printed brief: 1 Dill. Mun. Corp. (4th Ed.) § 286; 1 Beach, Pub. Corp. § 271; 15 Am. & Eng. Enc. Law (1st Ed.) pp. 1034, 1035. Other authorities are cited as applicable to cases of private corporations and inferior municipal and school boards, which we think we need not consider. As bearing upon the main question, it is suggested that it has never been the custom in Knoxville to give notice to each and every one of the board of special meetings; that Cleage had virtually removed himself from the state, so that service upon him was impracticable; that in the case of Land Co. v. Jellico, 103 Tenn. 320, 52 S.W. 995, it appeared that the alderman who was not notified was in the building where the meeting was held, and the inference might be that he was purposely omitted from the notice, as he was hostile to the ordinance...