Lewis v. Mayor and City Council of Cumberland

• Decision Date: 08 July 1947
• Docket Number: 151.
• Citation: 54 A.2d 319,189 Md. 58
• Parties: LEWIS v. MAYOR AND CITY COUNCIL OF CUMBERLAND.
• Court: Maryland Court of Appeals

54 A.2d 319

189 Md. 58

LEWIS v. MAYOR AND CITY COUNCIL OF CUMBERLAND.

No. 151.

Court of Appeals of Maryland

July 8, 1947

Appeal from Circuit Court, Allegany County; Wm. A. Huster, Chief Judge, and Walter C. Capper and Joseph D. Mish, Judges.

Bill by David J. Lewis against the Mayor and City Council of Cumberland to test the validity of a water rate ordinance and to restrain the collection of charges thereunder. From a decree dismissing the amended bill and rescinding a restraining order, plaintiff appeals.

Affirmed.

D Lindley Sloan, of Cumberland, for appellant.

Charles Z. Heskett, of Cumberland, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This is an appeal by plaintiff from a decree, dated November 26 1946, dismissing the amended bill and rescinding a restraining order in a case instituted in 1925. The case is a controversy over water rates. Plaintiff is the owner of an apartment house, built by him in 1923, containing thirteen apartments. The building is supplied, through one service line, with water measured by one meter. The question is whether defendant is entitled to charge plaintiff a 'minimum service charge' of $4.50 per quarter for 15,000 gallons or less (a) for his entire apartment house or (b) for each of the thirteen apartments. Until 1936 this was primarily a question of construction of successive rate ordinances. This question of construction was decided in favor of plaintiff and is no before us. In 1936 the existing rate ordinance was amended by an ordinance which clearly expresses defendant's contention. The question presented therefore is whether the ordinance of 1936 is lawful and valid or is unlawful and void because unreasonable or arbitrary. The case was heard on bill, answer and an agreed statement of facts. It was agreed that the court should 'consider any facts alleged in the bill or answer' which in its opinion may be 'helpful in arriving at a conclusion' relating to the law of the case.

The Act of 1933, ch. 42, sec. 56, subd. A, provides that defendant shall operate its water system and charge and collect for the water supplied 'a sum sufficient to pay the operating expenses of said water system, to pay the interest on and the redemption of all bonds * * * and * * * other indebtedness of said city issued * * * or incurred for the building, extension, operation or maintenance of its water system;' it is its duty 'to establish from time to time such rates for its water system as will pay all its operating expense and all its annual interest, and meet all its sinking fund or serial bond requirements; and in case of any deficit in the operations of the water department, then the water rentals shall be increased in order to prevent any future deficit, and to liquidate the past deficit.' The Act of 1922, ch. 10, sec. 1, which authorized issuance of Water Improvement Bonds, provides that 'at the end of each fiscal year, any excess of receipts over expenses in the water fund, in said year shall be paid' into the sinking fund for the redemption of water bonds. Plaintiff regards the Act of 1933 as prescribing not merely a minimum for rates to maintain solvency of the water department, but also a maximum which prohibits operation for profit. Assuming, for sake of argument only, that this is the proper construction of the statute and also that the court might properly order a general rate reduction to prevent operation at a profit, we find no factual basis for such action. Defendant says there is now invested in its water system $4,872,110, upon which 'investment' (present value not stated) its 'excess of water operating revenues' over actual operating expenses, without provision for depreciation [except indirectly through the sinking fund], for the fiscal years 1935 to 1945, inclusive, aggregated about $400,000, including about $231,000 for the last three years; 'the net return upon the capital investment' during any of these years [except apparently 1945] did not at any time exceed two per cent; by deferring maintenance and repairs because of scarcity of materials and labor during the last three years the 'excess' for these war years was inflated, and for subsequent years presumably will be correspondingly diminished; the 'absolute necessities of the people' require capital additions which will cost about $1,700,000 and may require increased water rates. At March 31, 1944, the end of the fiscal year 1944, after 'distribution to sinking fund,' in accordance with the Act of 1922, of more than the total 'net water operating income' for the year ($54,214), the accumulated balance in the 'operating surplus account' was $141,674. In these past results and future prospects we find no evidence of past or probable future operation at any substantial 'profit,' beyond moderate provision to insure solvency and protect the city's credit. Furthermore, if rates were reduced to avoid profit, the whole of such reduction could not reasonably be given to apartment house owners.

Before 1920 all rates apparently were 'flat rates,' based on the number and kind of fixtures, i. e., on potential use, not actual use. By an ordinance of 1920 it was provided that in the case of certain classes (since 1924 apparently all classes) of consumers, the consumer or the city might, at his or its election, place a mater on his property. An ordinance of 1924 fixed meter rates at '15,000 gallon per quarter--$4.50' and proportionately for 22,500 ($6.75), 30,000 ($9.00) and so on up to 90,000 gallons ($27), with lower rates for more than 90,000. An ordinance of 1932 provided that 'where two or more families occupy the same dwelling, the same not being an apartment building, water rent will be charged to each family for domestic purposes,' and that meter rates should be '15,000 gallons or less per quarter 30¢ per 1,000 gallons,' with lower rates for more than 15,000 gallons. An ordinance of 1934 re-enacted these quoted provisions, and reduced the rates for more than 500,000 gallons. An ordinance of June 1, 1936, provides: 'The owner or owners of any apartment house now or hereafter serviced with water from the City of Cumberland, shall be compelled to install at least one meter upon the premises, or, if the owner shall so elect, the owner may have installed a meter for each apartment in the building. In the event the owner shall elect to install but one meter, then the minimum service charge for said apartment building shall be the minimum service rate as fixed by other City Ordinances from time to time, multiplied by the number of apartments contained in each separate apartment house or building.' The validity of the sentence last quoted is now at issue.

It might perhaps be doubted whether a rate of '15,000 gallons or less per quarter 30¢ per 1,000 gallons' imposes a 'minimum service charge' of $4.50 for less than 15,000 gallons. The record does not contain in full the rate ordinances prior to 1936. However, in view of the language of the prior ordinance of 1924 and the subsequent ordinance of 1936, the reenactment in 1934 of the language of the 1932 ordinance, and the uniform construction of all these ordinances by the city and its consumers, it seems clear that '15,000 gallons or less per quarter 30¢ per 1,000 gallons' does amount to a 'minimum service charge' of $4.50 per quarter for 15,000 gallons or less. Plaintiff does not dispute this construction, but only the application of the $4.50 minimum to each of his thirteen apartments, instead of his entire building.

For the six months ended September 30, 1944, the 'money charged to meters' for domestic consumers ($88,231) was equivalent to more than 34¢ per 1,000 gallons for all 'gallons charged against' these meters (256,147,500). In other words, the 6,577 domestic metered consumers used an average of less than 15,000 gallons per quarter and paid $4.50, the price for more than they actually used. These 6,577 consumers must have included many who used more and paid proportionately less than the average, and many others who used less and paid more, e. g., many small consumers among the 2,209 families in multiple family dwellings and tenants of apartments. Since plaintiff's thirteen apartments in the aggregate (but not each of the thirteen) always use more than 15,000 gallons, plaintiff's contention in effect is that he should pay no 'service charge' at all, but should only pay for water actually used, at an average rate less than 30¢ per 1,000 gallons. If plaintiff's contention is sustained, thirteen families living in separate houses or in multiple family dwellings, using the same quantities of water as plaintiff's thirteen tenants, would continue to pay thirteen 'minimum service charges' of $4.50 each, making their average rate for actual consumption more than 30¢ per 1,000 gallons. Plaintiff contends that failure to make such discrimination in his favor is unjust discrimination against him because (a) the per customer costs (e. g., meter-reading, billing, collection, service pipe and meter expenses) of serving a large apartment house through one service line and one meter are no greater than the costs of serving one family through a separate meter in a multiple family dwelling; (b) in many other cities only one minimum charge is made for an apartment house served by a single meter; and (c) an apartment house is a business and is treated differently from all other businesses.

In Home Owners' Loan Corporation v. Baltimore, 175 Md. 676, 680, 3 A.2d 747, 749, the court said: 'It is axiomatic that a public service corporation, private or municipal, is under a duty to furnish to all persons applying therefor the service which it offers without discrimination and at reasonable rates, where the service ...