Fretz v. City of Edmond

• Decision Date: 02 May 1916
• Docket Number: 6566.
• Citation: 168 P. 800,66 Okla. 262,1916 OK 516
• Parties: FRETZ v. CITY OF EDMOND et al.
• Court: Oklahoma Supreme Court

168 P. 800

66 Okla. 262, 1916 OK 516

FRETZ v. CITY OF EDMOND et al.

No. 6566.

Supreme Court of Oklahoma

May 2, 1916

Rehearing Denied Nov. 20, 1917.

Syllabus by the Court.

In construing a pleading challenged by demurrer before trial the allegations thereon will ordinarily be construed against the pleader, and if material allegations are omitted, in the absence of an application to amend, it will be assumed that the facts to justify them do not exist.

Municipal corporations in operating a water plant exercise business and administrative functions, rather than those strictly governmental in their nature, and in the exercise of such functions are governed largely by the same rules applicable to individuals or private corporations engaged in the same business.

Municipal corporations operating water plants are not required to give absolute equality of service or rates, but are only required not to act arbitrarily in exercising the discretion vested in them in such matters, and not to maintain a discrimination between patrons which is essentially unjust.

The law against unjust discriminations rests in public policy, and it is not in violation of the public policy of the state, in the absence of specific legislation on the subject, to permit discriminations by a municipality in favor of a state institution which redounds to the intellectual, moral, and commercial benefit of the general public resident in such municipality.

Under the facts alleged in the instant case, held, that the donation of water by the city of Edmond to the Central State Normal School does not constitute an unjust discrimination against a citizen, taxpayer, and water consumer of the city who is required to pay a fixed rate for water used by him.

Commissioners' Opinion.Division No. 2.Error to District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Aaron Fretz against the City of Edmond and its officers for an injunction.From an order sustaining a demurrer to the petition, the plaintiff brings error.Affirmed.

Sam Hooker, of Oklahoma City, for plaintiff in error.

Wright & Blinn and John Roaten, all of Oklahoma City, for defendants in error.

BURFORD C.

The original petition in this cause contained three separate causes of action.In this court it is conceded that the matters contained in the second and third cause of action have become moot, and have been therefore abandoned by the plaintiff in error, leaving for our consideration only the ruling upon the first cause of action alleged.This part of the petition sets out that the plaintiff is and has been for a number of years last past a citizen, property owner, and resident taxpayer of the city of Edmond, Okl.; that the city of Edmond is a city of the first class; that the various defendants are its officers; that the city of Edmond owns and operates its own water plant or system in said city, and the revenue necessary for conducting said water plant is derived partially from payments by the various consumers of water and partially by general taxation; that at the time of the commencement of the action there was in force in said city ordinances fixing the water rates to consumers upon a sliding scale based upon the amount of water consumed, beginning at 25 cents per thousand gallons for the first 5,000 gallons used by the consumer in any month, and providing further that the minimum charge for water service to each consumer should be 50 cents per month.The petition further alleged that, by action of the council prior to the institution of the suit it was proposed to donate to the Central State Normal School, an institution owned and maintained by the state in the city of Edmond, 2,400,000 gallons of water per annum free of charge, and that the resolution authorizing such action had been duly passed by the council.The petition then alleges that:

Said action "is in violation of the law and contrary to the law of the state of Oklahoma, and contrary to the ordinances of the city of Edmond, and is an unjust discrimination against this plaintiff and the other taxpayers of the city of Edmond, and is a discrimination against this plaintiff and the other taxpayers of the city of Edmond, and is a discrimination against this plaintiff and the other users of water of the city of Edmond, and does this plaintiff and the other taxpayers of the city of Edmond an irreparable injury, for which they have no adequate remedy at law."

The petition then prays for an order enjoining the defendants from making any physical connection between the said water plant and the Central State Normal School, and from furnishing said Central State Normal School any amount of water free of charge.To this petition a demurrer was interposed which was sustained by the trial court, and the plaintiff, electing to stand upon his petition, brings the cause here for review.

It will be noted in the first instance that the petition contains no allegation that either the water rate, which the plaintiff is compelled to pay, or the taxes upon his property, will be increased by reason of the contemplated acts; nor is it alleged that if said acts be restrained either the water rents or his taxes will be reduced by reason thereof.

It is urged in the brief that the court must necessarily conclude from the allegations of the petition that in delivering free water to the Normal School there would be a cost to the city which the plaintiff, along with the other taxpayers and water consumers, would be compelled to pay; but this is not necessarily true, and if not necessarily true ought not to be presumed.Whatever may be the personal knowledge of either the trial or appellate tribunals in regard to the situation of the city of Edmond, so far as appears from this record, there may be a surplus of water in the city which may be disposed of without involving any extra expenditure in the operation of the water plant.It may be true that the city of Edmond was and is supplied by gravity from the reservoir, such as a number of cities of this state, and that the capacity of the reservoir was such that the water donated to the Central State Normal School might be furnished without any cost whatever.

It is the settled rule of this court that:

"Where a pleading is challenged before trial by demurrer, its language, where doubtful, will be construed against the pleader, upon the ground that, as he selects the language, he should make his meaning clear; and where in such case a demurrer is sustained on account of the insufficiency of a pleading, and no application for amendment is made, it will be presumed that the facts to justify it do not exist."Emmerson v. Botkin,26 Okl. 218, 109 P. 531, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953;Atwood v. Rose,32 Okl. 355, 122 P. 929;Schilling v. Moore,34 Okl. 155, 125 P. 487.

And that:

"The rule of construction in such cases is that a material fact not alleged in a pleading is presumed not to exist."Jas. W. Lusk et al. v. J. L. Porter, County Treas., No. 7273, 156 P. 224, not yet officially reported.

The question raised by the petition and demurrer, therefore, must be determined, not upon the ground of any unlawful disposition of the public moneys or funds which the plaintiff, under proper circumstances and allegations, would be entitled to enjoin, but upon the averment of the plaintiff's petition that the donation of such water constitutes an unjust discrimination against him and his fellow citizens similarly situated.

Section 472, Rev. L. 1910, provides, in part, as follows:

"All incorporated towns and cities in this state are hereby authorized and empowered to purchase, erect, lease, rent, manage and maintain any system or part of system of waterworks, hydrants and supply of water, telegraphing fire signals or fire apparatus that may be of use in the prevention and extinguishment of fires and for domestic purposes; and to pass all ordinances, penal or otherwise, that shall be necessary for the full protection, maintenance, management and control of the property so leased, purchased or erected."

Section 475 provides:

"The city council of such city and the board of trustees of such town in connection with the mayor or president of said board shall have the power and authority, and it shall be their duty, to fix the rate of water rents or taxes to be paid by the consumer, and to ordain such rules and regulations, with appropriate penalties for the violation thereof, as such council or board of trustees may deem proper for the regulation and protection of said waterworks."

In exercising the authority conferred upon them by statute in relation to the conducting and maintenance of waterworks, it is clear that the officers of the city are not exercising, in any strict sense, the governmental or legislative powers by which the sovereignty of the city is maintained and its people governed, but that they are acting in a quasi public and quasi private capacity, exercising as the agent of the people mere business powers of the conduct of an enterprise for the benefit of the inhabitants of the municipality.

In Illinois Trust & Savings Bank v. City of Arkansas City,76 F. 271, 22 C. C. A. 171, 34 L. R. A. 518, the Circuit Court of Appeals of the Eighth Circuit, in defining the powers of a city in relation to the waterworks, said:

"A city has two classes of powers: The one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other, proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality.In the exercise of the powers of the former class, it is governed by the rule here invoked.In their exercise

...