St. Louis Brewing Ass'n v. City of St. Louis

Citation140 Mo. 419,37 S.W. 525
PartiesST. LOUIS BREWING ASS'N v. CITY OF ST. LOUIS.
Decision Date11 November 1896
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis circuit court.

Action by the St. Louis Brewing Association against the city of St. Louis. From a judgment for defendant, plaintiff appealed. Reversed.

This is a suit to recover from defendant, the city of St. Louis, $10,818 for what plaintiff paid for water between June 5, 1889, and December 20, 1890, in excess, as is alleged, of the amount it could lawfully charge. Plaintiff is a business corporation, engaged in the city of St. Louis in the manufacture of beer. Defendant is a municipal corporation, owning and operating waterworks for supplying citizens, manufacturers, and others with water for domestic, manufacturing, and other purposes. Plaintiff, soon after its incorporation, purchased and took possession of 17 breweries, all located in the city of St. Louis, and continues to own and operate them. The several breweries are located in different parts of the city, and none of them are located in one or more blocks adjoining each other, except that two of them are located in block 847, which adjoins block 879, in which another is located, and except, further, that one of them is located on blocks 1868 and 1869, two adjoining blocks, which adjoin block 460, on which another is located. The ordinance regulating water rates which was in force when plaintiff purchased the breweries contained this provision: "The meter rate for the use of water from the waterworks for purely manufacturing purposes and livery stables shall be uniform, and is hereby fixed at one and one-fourth cents per one hundred gallons, without regard to quantity used: provided, that when the quantity used exceeds fifty million gallons annually the rate is hereby fixed at one cent per one hundred gallons." April 4, 1890, said provision was amended so as to read: "The meter rate for the use of water from the waterworks for purely manufacturing purposes is hereby fixed at one and one-fourth cents per one hundred gallons: provided, that when the quantity used exceeds fifty million gallons annually by any manufacturing plant, located in one or more blocks adjoining each other, the rate shall be one cent per one hundred gallons." Plaintiff elected to pay for water for manufacturing purposes at meter rates. The quantity of water used by plaintiff in its breweries largely exceeded 50,000,000 gallons annually. From July 5, 1889, to date of amended ordinance, plaintiff consumed 186,426,750 gallons of water, for which it paid 1¼ cents per 100 gallons. The aggregate quantity of water consumed by plaintiff in all its breweries from the date of the amended ordinance until December 20, 1890, was 246,296,250 gallons, for which it was charged and required to pay 1¼ cents per 100 gallons. The aggregate quantity of water consumed by plaintiff in the three breweries located on the same and adjoining blocks was 57,285,000 gallons, for which it was also required to pay 1¼ cents per 100 gallons. The quantity of water consumed in the brewery located on two blocks and the one located on an adjoining block was 82,664,750 gallons, for which plaintiff also paid 1¼ cents per 100 gallons. The amount plaintiff was compelled to pay, or have the water turned off, at the rate of 1¼ cents per 100 gallons, was over $10,000 more than it would have been at 1 cent per 100 gallons, and for this excess plaintiff sues, claiming that, under the ordinances, he should only have been charged at the lower rate. Upon these facts judgment was given for defendant, and plaintiff appealed.

Kehr & Tittman, for appellant. W. C. Marshall, for respondent.

MACFARLANE, J. (after stating the facts).

1. The ordinances in force in the city of St. Louis provided that, in case consumers refuse to pay the prescribed charge or rate for water, it should be turned off. Under the agreed statement of facts plaintiff was entirely dependent upon the water of the city for its supply in operating its factories, and it was compelled to pay 1¼ cents per 100 gallons or close them. Under these circumstances plaintiff paid the charges exacted, and this suit is to recover the excess so paid. It has been held by this court, and may be taken as settled law, in this state, that payment in such circumstances is compulsory, and if the charge is excessive the excess may be recovered from the city. Westlake v. City of St. Louis, 77 Mo. 47.

2. It is insisted that, under section 1698 of the original ordinance, plaintiff was entitled to the rate of one cent per 100 gallons for water consumed in the business of manufacturing, though its factories were located in different parts of the city, and had no connection one with another, except that of proprietorship. This question merely involves the construction of that section of the ordinance. Neither the legality of the ordinance nor the reasonableness of the charges is questioned by plaintiff. The first question, then, is, had a manufacturer who operated a number of disconnected factories the right, under section 1696, before its amendment, to the rate of one cent per 100 gallons in case he consumes in the aggregate 50,000,000 gallons of water annually, or is the rate to be determined from the quantity used in each factory, independently of the others? The rates for the use of water were prescribed by sections 1697 and 1698. The former fixes a definite charge for a particular use, as a certain amount for each room in a building, or for each business pursuit. The latter apportions the charges according to the quantity of water used, to be ascertained by meter measurements. The latter section reads: "All persons requiring the use of water applying for a meter shall have the right to pay for water in proportion to the quantity used, to be determined by a meter: provided that in all such cases the water taker shall pay the cost of the meter and of placing the same. The assessor and collector of water rates shall have the power to ascertain by meter measurement the quantity of water used for any purpose and exact payment therefor at meter rates, and in such cases the rates fixed as a license rate shall not apply. In all cases where the water is to be paid for at meter rates, the persons taking out license shall be charged the following rates on the average quantity of water used during the year, the year to be estimated at 300 days: When the quantity used averages 1,000 gallons per day or less, 3 cents per 100 gallons; when the quantity used averages from 1,000 to 2,500 gallons per day, 2½ cents per 100 gallons; when the...

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