Robbins v. Bangor Ry. & Electric Co.

• Decision Date: 20 November 1905
• Citation: 62 A. 136,100 Me. 496
• Parties: ROBBINS v. BANGOR RY. & ELECTRIC CO.
• Court: Maine Supreme Court

62 A. 136

100 Me. 496

ROBBINS

v. BANGOR RY. & ELECTRIC CO.

Supreme Judicial Court of Maine.

Nov. 20, 1905.

Report from Supreme Judicial Court, Penobscot County, at Law.

Petition of Chester W. Robbins for writ of mandamus to the Bangor Railway & Electric Company. Case reported, and petition dismissed.

Petition for a writ of mandamus to require the defendant company to furnish water to the petitioner at a house owned by him in Old Town and occupied by a tenant. Heard upon the petition and answer, as upon an alternative writ and return, and, at the conclusion of the evidence, the case was reported to the law court for "a determination as to whether a peremptory writ of mandamus shall issue or the petition be dismissed."

Argued before EMERY, STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Clarence Scott, for petitioner. E. C. Ryder, for defendant.

SAVAGE, J. Petition for a writ of mandamus to require the defendant company to furnish water to the petitioner at a house owned by him, and occupied by a tenant, in Old Town. The case was heard upon the petition and answer, as upon an alternative writ and return, and, at the conclusion of the evidence, the case was reported to this court for its "determination as to whether a peremptory writ of mandamus shall issue, or the petition be dismissed. Some technical questions of procedure and pleading have been argued, but as the case comes up on report, it is unnecessary to consider them. Pillsbury v. Brown, 82 Me. 450, 19 Atl. 858, 9 L. R. A. 94; Elm City Club v. Howes, 92 Me. 211, 42 Atl. 392; Rush v. Buckley, 100 Me. 322, 61 Atl. 774.

The essential facts are these: On October 16, 1889, Laughton & Clergue were promoters of a water company to be incorporated in Old Town. In fact the organization had been partly perfected at that time, but the approval of the certificate of incorporation by the Attorney General was not given until October 24, 1880. October 12, the inhabitants of Old Town, in town meeting assembled, appointed a committee to make a contract with "Laughton & Clergue, or such corporation as Laughton & Clergue may organize, or with any other party or parties, to furnish and supply the town of Old Town with water for proper municipal purposes." October 16th, the committee, acting for the town, entered into a contract with Laughton & Clergue which provided that Laughton & Clergue should organize a corporation, which should accept an assignment of the contract and undertake to carry it out. In the contract the promoters also agreed, among other things, to put in 60 hydrants for the use of the town for fire purposes for a rental named, and to be paid by the town. They also agreed to furnish water for a display fountain, and for certain other public purposes. The fifth paragraph of the contract reads as follows:

"Said first party (the promoters) agrees that the rates for water used in dwelling houses shall not exceed the following: For each dwelling house containing a family of not more than four persons, with one faucet for use within the tenement, five dollars per annum; for each additional person in the family, fifty cents per annum; for the first wash hand basin set, two dollars per annum; for each additional hand basin, one dollar per annum; for one bathing tub, three dollars per annum; for each additional bathing tub, one dollar per annum; for one water-closet, three dollars per annum; for each additional closet, one dollar per annum; for a dwelling house occupied by two or more families, each family to pay three-fourths of the above rate per annum."

Thereupon Laughton & Clergue completed the organization of the corporation known as the Penobscot Water & Power Company, to which they assigned the contract. The corporation accepted the assignment and assumed and agreed to perform "all the duties and obligations by said Laughton & Clergue to be performed according to the terms of said contract." Among the corporate purposes of the Penobscot Water & Power Co. was "the construction of waterworks and laying of pipes in any place or places, and buying, selling, or leasing of water." The corporation built a system of waterworks in Old Town, and entered upon the business of supplying water to the town under its contract, and to the inhabitants for power and for domestic purposes. Annual or flat rates were fixed by the corporation payable semiannually, in advance, for the supply of water to dwelling houses according to the terms of the Laughton & Clergue contract, and to hotels, boarding houses, and other buildings and places at other and varying amounts.

June 1, 1891, the Penobscot Water & Power Company conveyed all its franchises and other property to the Public Works Company, by which they were conveyed, April 7, 1905, to the defendant corporation. The business of supplying water to the town or city of Old Town has been carried on continuously by these corporations in succession to the present time. And the water system referred to has been the only source of public water supply for the city or its inhabitants during all this time.

About the beginning of the year 1903, the Public Works Company, then owning the plant, revised and changed its schedule of rates, and thereafter charged customers according to the new schedule. For water supplied to dwelling houses containing families the rates were left unchanged, being the same annual amounts provided for in the Laughton & Clergue contract. All other services were metered, and were charged for monthly, according to the amount of water supplied. The charge for water used for power was 11 cents for the first 10,000 cubic feet, 8 cents for the second 10,000 feet and 6 cents per 10,000 feet for all water in excess of 20,000 feet in each month. For all other metered service, including hotels and boarding houses, the charge was 25 cents per 100 feet for the first 2,000 feet, 20 cents per 100 feet for the second 2,000 feet, and 15 cents per 100 feet for all water in excess of 4,000 feet in each month.

The petitioner, an inhabitant of Old Town, owned a house on Main street, which was piped for water, and connected with the water company's mains. The house was occupied from time to time by tenants, who kept boarders. From the outset down to 1904, this house was classed as a dwelling house, and the company charged and the petitioners paid the annual flat rates for dwelling houses, which were named in the Laughton & Clergue contract. In the later years, the tenant's own family consisted of five persons. The number of boarders varied, but was estimated by the company. The company charged and the petitioner paid for 15 persons in the family, boarders and all. $5 semiannually. In 1902 or 1903, a water closet was put into the house for which the petitioner paid at the rate of $5 per annum. Prior to January, 1904, the company complained to the owner of waste of water, through defects in piping and plumbing. It also claimed that the house should properly be classed as a boarding house and pay according to the meter rates established for boarding houses. About the beginning of 1904 the company notified the petitioner of its intention to put in a meter. A meter was put in April 6, 1904. In May following, a bill was rendered to the petitioner for flat rates from January 1, 1904 to April 1, 1904. and for 3,003 feet of water in April, at meter rates for boarding houses. From that time on the petitioner was charged at meter rates. He declined to pay, and on September 10, 1904, the company shut the water off. There was then due according to its rates, the sum of $23.71 for water from January 1, 1904. Both before and after the water was shut off the petitioner tendered the full amount due according to the fiat rates for dwelling houses, and now offers to pay the same. He prays that the company be commanded to restore his service.

Upon these facts, concerning which there is little dispute, the defendant contends that the petitioner is not entitled to mandamus against it, as a matter of law. It says that the petitioner's rights, if any, rest in contract. and, so far as alleged in the petition, in the Laughton & Clergue contract, that the contract was made by the town, and that the petitioner was not a party to it, or in any privity with the parties, and that mandamus will not lie to enforce contractual duties in any event. Furthermore, it is argued that the defendant is not bound by the Laughton & Clergue contract. We will consider the last proposition first.

It is not necessary to inquire when and how far and in what manner a corporation is bound by the engagements entered into by its promoters. It is at least settled that if the corporation adopts such a contract expressly or impliedly, and obtains its benefits, it must take it with its obligations and burdens, cum onere. It must do what the promoters agreed to do. 23 Am. & Eng. Ency. 241; 10 Cyc. 262; note to Pittsburg Mining Co. v. Spooner. 17 Am. St. Rep. 161. In this case, the Penobscot Water & Power Company took an assignment of the Laughton & Clergue contract and its benefits and expressly assumed its obligations. That contract limited the rates for water supplied to dwelling houses containing families. The corporation became bound by that limitation. While a town is not an agent of the individual citizens, and authorized to make contracts binding upon them personally, we have no hesitation in saying that when a person or corporation as a consideration, or even as a mere inducement, for the making of a hydrant contract with a town for fire purposes, engages to supply water for the inhabitants at rates not exceeding certain specified sums, and so obtains the contract and its benefits, the contractor is under obligations to fulfill the agreement as to service and rates to individual water takers. And the rights of the Penobscot Water & Power Company, with the corresponding duties and obligations, have come to the defendant.

It is true that mandamus is not the proper...