St. Louis Brewing Association v. City of St. Louis

• Decision Date: 06 July 1897
• Citation: 37 S.W. 525,140 Mo. 419
• Parties: St. Louis Brewing Association, Appellant, v. The City of St. Louis
• Court: Missouri Supreme Court

37 S.W. 525

140 Mo. 419

St. Louis Brewing Association, Appellant, v. The City of St. Louis

Supreme Court of Missouri, First Division

July 6, 1897^[*]

Rehearing Denied140 Mo. 419 at 432.

Appeal from St. Louis City Circuit Court.-- Hon. James E. Withrow Judge.

Reversed and remanded.

Kehr & Tittmann for appellants.

(1) Payment of water license under threat of turning off the water in case of refusal is payment under compulsion, and if the charge is excessive the excess may be recovered.Westlake v. St. Louis,77 Mo. 47.(2) Under section 1698 of the Revised Ordinance of 1887 but two things are necessary to bring the water taker within the price of one cent per one hundred gallons, viz.: First.That the water is used for purely manufacturing purposes; and second, that the quantity used exceeds fifty million gallons annually.Rev Ord. 1887, secs. 1697 and 1698.(3) The city controls and distributes the water supply to the inhabitants of St. Louis in its political or governmental capacity.Charter of St. Louis, art. 1, sec. 1;art. 7, secs. 1,4,6,7, and12.Water rates are fixed for the purpose of revenue, and are a tax.Charter of St. Louis, art. 7, secs. 6,7, and12;Rev. Ord. 1887, secs. 1678, 1692, 1697, and 1698;City v. Spiegel,75 Mo. 145.(4) The discrimination attempted by ordinance number 15,599 is in violation of the Constitution of the State and of the charter of the city and is therefore void.Constitution of Mo. 1875, art. 10, sec. 3;Charter of St. Louis, art. 7, sec. 12;City v. Spiegel,75 Mo. 145;City v. Spiegel,90 Mo. 587;City v. Bowler,94 Mo. 630;City v. Freivogel,95 Mo. 533;Red Star Steamship Co. v. Jersey City,45 N. J. L. 246;1 Dillon, Mun. Corp.[4 Ed.], sec. 322;Zanone v. Mound City, 103 Ill. 553.

W. C. Marshall for respondent.

(1) Ordinance 1698 contemplates that the fifty million gallons so used by such manufacturer shall pass through one meter.(2) The error of counsel consists in attempting to treat water rates as taxes.A tax is a demand of sovereignty; a toll is a demand of proprietorship.Railroad v. Penn,15 Wall. 232;City of St. Louis v. Telegraph Co.,148 U.S. 97;Cannon v. City of New Orleans,87 U.S. 417;Packet Co. v. Keokuk,95 U.S. 80;Union Depot Co. v. St. Louis,100 U.S. 423;Packet v. Catlettsburgh,105 U.S. 559;Transportation Co. v. Parkersburg,107 U.S. 691.(3)Appellant's contention that "the place where the water is used, and whether used at one place or several, is wholly immaterial," is entirely erroneous.(4)Section 1698 classifies, but does not unlawfully discriminate.St. Louis v. The St. Louis & New Orleans Transportation Co., 84 Mo. 156.

MacfarlaneJ. Barclay, J., does not sit.

OPINION

Macfarlane, J.

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 water works for supplying citizens, manufacturers and others with water for domestic, manufacturing and other purposes.Plaintiff soon after its incorporation purchased and took possession of seventeen 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 one and one fourth cents per gallon.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 one and one fourth cents per one hundred 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 one and one fourth cents per one hundred 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 one and one fourth cents per one hundred gallons.

The amount plaintiff was compelled to pay, or have the water turned off, at the rate of one and one fourth cents per one hundred gallons was over $ 10,000 more than it would have been at one cent per one hundred 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.

I.The ordinances in force in the city of St. Louis provide 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 one and one fourth cents per one hundred gallons or close them.Under these circumstancesplaintiff 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 & Button v. St. Louis, 77 Mo. 47.

II.It is insisted that under section 1698 of the original ordinance plaintiff was entitled to the rate of one cent per hundred 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 are 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 hundred 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 1697and1698.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 or 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, 2 1/2 cents per 100 gallons.When the quantity used averages from 2,500 to 5,000 gallons per day, 2 cents per 100 gallons.When the quantity used averages from 5,000 to 10,000 gallons per day, 1 3/4 cents per 100 gallons.When the quantity used averages from 10,000 to 25,000 gallons per day, 1 1/2 cents per 100 gallons.When the quantity used exceeds an average of 25,000 gallons per day, 1 1/4 cents per 100 gallons.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 1 1/4 cents per 100 gallons, without regard to quantity used; provided, that when the quantity used exceeds 50,000,000 gallons annually, the rate is hereby fixed ...