Mansfield v. Manufacturing Co.

• Decision Date: 03 May 1910
• Docket Number: 11795
• Citation: 92 N.E. 233,82 Ohio St. 216
• Parties: City Of Mansfield v. The Humphreys Manufacturing Company.
• Court: Ohio Supreme Court

92 N.E. 233

82 Ohio St. 216

City Of Mansfield v. The Humphreys Manufacturing Company.

No. 11795

Supreme Court of Ohio

May 3, 1910

Municipal corporations in Ohio - Authorized to construct waterworks - And supply water to inhabitants - May make rules governing same - Regulation turning off water, when rent unpaid - Reasonable and may be enforced - Consumer may apply to courts - For determination of amount due, when.

1. Municipal corporations in Ohio are authorized to construct waterworks and to supply water to their inhabitants, and to collect money for water supplied, and to make such by-laws and regulations as they may deem necessary for the safe economic and efficient management and protection of the water-works. Under this power a regulation providing that if any party shall refuse or neglect to pay the water rent when due, the water shall be turned off and not turned on again until all back rent and damages shall be paid and the further sum of one dollar for turning on and off the water, is a reasonable regulation and may be enforced.

2. The determination by the proper city officials of the amount due for water supplied is not final, but the consumer who has good grounds for disputing the correctness of the charge made by the city may apply to the courts to determine the amount due and to restrain the enforcement of the rule pending such determination.

The facts are stated in the opinion.

Mr Glenn M. Cummings and Mr. John H. Coss, for plaintiff in error.

Mr. W S. Kerr, for defendant in error.

SUMMERS C. J.

The manufacturing company brought this action to enjoin the city and its board of public service from shutting off from plaintiff's factory the supply of water from the city water-works. The plaintiff in its petition filed December 3, 1907, avers that it is, and has been, using at its factory water supplied by the city, and that it has no other source or means of supply for a portion of its factory, and that if the city shuts off this supply it will stop a large portion of plaintiff's manufacturing and cause it irreparable injury; that plaintiff has always paid the amount charged against it, and that it is now willing to pay the city for the water consumed; that the city on the books of its water-works has charged against the plaintiff $610.13 for six months' water rental, and has given plaintiff notice that unless the same is paid by December 5, the city will shut off the supply; that the charge is exorbitant, that the plaintiff has not during said time used two hundred dollars worth of water and that it has tendered to the city two hundred dollars which it refuses, and that it threatens to and will, unless enjoined, shut off the water.

The city in its answer admits that it has this amount charged on its books against the plaintiff and that it will, unless enjoined, cut off the supply of water. It then sets out a scale of meter rates established by the city, avers that the water supplied to the plaintiff during the period in controversy was measured by meters installed in the manufacturing plant of the plaintiff, and that the amount charged was due as determined by the quantity registered by the meters and at the estab- lished rates, and that the rates are reasonable. It is also averred that the following rule, adopted by its board of public service, relating to the waterworks, was in force:

"Section 20. If any party shall refuse or neglect to pay the water rent when due, or permits any waste of water not authorized by the rules and regulations of the board of public service, the water shall be turned off and not turned on again until all back rent and damages shall be paid, and the further sum of $1.00 for turning on and off the water."

The reply of plaintiff denies that it consumed the quantity of water stated in the answer and avers that if the meters registered that quantity then they were out of order and inaccurate, and that if the meters were not inaccurate that they were inaccurately read.

The court of common pleas dismissed the petition and the plaintiff appealed to the circuit court. The circuit court, among other things, found that the plaintiff is solvent and fully able to pay the charge, that it had paid all previous charges, and that after the bill in controversy had been presented it had tendered to the city the sum of two hundred dollars, "that there is a dispute over said bill for water between said plaintiff and said defendants, and that said dispute is not captious and dilatory but is maintained by plaintiff in good faith; that the defendants have not resorted to an action at law to determine the amount of said bill for water, nor has the amount of said bill ever been adjudged in any civil action," and that if the water was shut off it would cause irreparable injury, and it enjoined the city from shutting off or interfering with the water supplied to the plaintiff until such time as the amount due is determined by a court, and then provided that if the amount so found is not then paid, the city may turn off the water under its said rule. Error is prosecuted in this court.

Whether the circuit court enjoined the city from shutting off the water on the ground that its rule respecting that matter is unreasonable, or on the ground that under the circumstances it was inequitable to enforce it, does not appear from its judgment. The implication is that it did not find the rule unreasonable. In that event the court ought not to have sent the city out of court without determining the amount due it from the plaintiff. It should have enjoined the cutting off of the supply of water pending the action only upon the plaintiff giving bond to pay the amount ascertained to be due, and should have ascertained in that action the amount due.

Section 7, Municipal Code, authorizes municipal corporations to provide for a supply of water by the construction of water-works and to collect money for water supplied. Section 1536-520 makes it the duty of the officers in charge of the water-works to furnish supplies of water and collect water rents. Section 1536-521 authorizes them to make such by-laws and regulations as they may deem necessary for the safe, economic and efficient management and protection of the water-works. Section 1536-522 authorizes them to assess and collect a water rent, "in such manner as it deems most equitable upon all tenements and premises supplied with water, and where more than one tenant or water taker is supplied with water from one hydrant, or off the same pipe, and when the assessments therefor shall not be paid when due, the board shall look directly to the owner of the property for the entire rent, or so much thereof as remains unpaid for water furnished said premises, to be collected in the same manner as other city taxes." The water rent or charges for water supplied are here referred to as taxes, and it is provided that they may be assessed upon tenements and premises supplied with water and the statute seems to contemplate an assessment upon the premises supplied with water and not a personal charge for water supplied. These statutes are in the form they were when the matter was new and comparatively unimportant. Since then cities have multiplied and the number of their inhabitants increased many times, and this important public service is performed largely under rules and regulations adopted by the officials charged with its management. In Hennessey v. Volkening, 30 Abbott's New Cases, 100, it is held "that water rents in New York City are chargeable only upon the property actually supplied with water, and are not a tax or assessment, but merely a charge for water furnished." And in Silkman v. The Board of Water Commissioners of the City of Yonkers, 152 N.Y. 327, it is held: "Rents charged by a public corporation for water actually used by private consumers are not in any just sense taxes so that persons against whom they are charged are entitled to notice and an opportunity to be heard before they are established." See also Merrimack River Savings Bank v. City of Lowell, 152 Mass. 556. We think the city may, under its authority to supply water and collect for the water supplied, establish rules and regulations for supplying water, and may establish rates and enforce its rules and regulations and the collection of its charges, and we are not in the present case called upon to determine its power with respect to assessing rents upon the premises supplied with water. Rules, such as the one in controversy, with respect to water and gas are usual and reasonable, but the decisions are not in accord as to the reasonableness of the charge for turning on and off the water or gas, nor as to the right to enforce the rule where the charge is disputed. Section 3559, Revised Statutes, provides: "If any person so supplied with gas neglect or refuse to pay the amount due for the same, or for the rent of the meter, or other articles hired by him of the company, the company may stop the gas from entering the premises of such person." Abbott on Municipal Corporations, Section 468, says: "Although water rentals or assessments are not regarded as taxes, being simply the purchase price of a commodity sold by a public corporation, yet, so far as their collection is concerned, they are generally treated as taxes. The customary remedy given or provided for the enforcement of the payment of water rentals is the right to cut off the water supply from those who may be in arrears after a designated time."

The statutes and decisions in other states cannot throw much light upon our own statute, but they may be helpful in determining the question of the reasonableness of the rule under consideration. In Shiras v Ewing, 48 Kans., 170, it is held that the water company may make reasonable rules...