The State ex rel. St. Joseph Water Company v. Eastin
| Decision Date | 25 June 1919 |
| Citation | 213 S.W. 59,278 Mo. 662 |
| Parties | THE STATE ex rel. ST. JOSEPH WATER COMPANY v. LUCIAN J. EASTIN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Affirmed.
James W. Boyd for appellants.
(1) One vital issue involved in this case was adjudicated long before this suit was brought, and the subject-matter of the suit then became res adjudicata. State ex rel. Buchanan County v. Patton, 271 Mo. 554; State ex rel. v. Mining Co., 262 Mo. 502; Exposition Driving Park v. Kansas City, 174 Mo. 438; Turnverein v. Hagerman, 232 Mo. 704; Edmonson v. Carter, 180 Mo. 515; LaRue v. Kempf, 186 Mo.App. 701; Drake v. Mayor of New York, 77 N.Y. 611; So. Minn. Ry. Ext. Co. v Railroad, 55 F. 690; Hirshbach v. Ketchum, 82 N.Y.S. 739; Rankin v. City of Big Rapids, 133 F 670; Railway Co. v. Carson, 169 Ill. 247; State ex rel. St. Joseph Water Co. v. Geiger, 246 Mo. 74. (a) In the case of State ex rel. Water Company v Geiger, 246 Mo. 74, it was decided and adjudicated by this court that the extension of the limits of the city made it the duty of the water company to furnish water to the Hospital, in accordance with the price fixed by the ordinance of said city. (b) The ordinance and the contracts in evidence in that case, were the same as the facts and the ordinances and contracts in this case. (c) The issues decided in that case were identical with the issue in this case, except as to the amount. The amount sued for in that case was $ 2186.33, and that sum is included in the amount of $ 16,279.84, sued for in this case. (2) When a party sues upon a contract he must show compliance therewith or fail to recover. Koon v. St. Louis Car Co., 203 Mo. 227. (3) The water company furnished some water during the years 1912, 1913, 1914, and 1915, and it was regularly paid therefor, according to its own account, at the rate of six cents per thousand gallons. When said company received and accepted payment, at the rate of six cents per thousand gallons, it knew that six cents was all the Hospital expected to pay, or should pay, or could be required to pay. After the water company ceased to supply any water, and after it had received payment at six cents per thousand gallons, and after it accepted such payment, it is now estopped, or should be, from demanding or recovering a further sum.
John E. Dolman and Vinton Pike for respondent.
(1) The relator did not guarantee pressure or agree to do anything more than to deliver water from its main into respondent's fixtures. No complaint was made during performance, which was accepted as substantial compliance. The board acknowledge performance by accepting relator's monthly statements, auditing them and allowing the bills at a six per cent rate -- everything all right but the price. This case in this respect does not differ from Waterworks v. Joplin, 177 Mo. 527. See also Water & Light Co. v. Lamar, 140 Mo. 145. (2) This course of action has not been adjudicated heretofore. The thing in action here is not the same. The former suit was for water supplied prior to February 1, 1912, and the water sued for in this action was supplied after that date. The validity of relator's contract has not been decided against it, but has been affirmed by the former decision. Relator's right under the contract was conceded in that case, if the ordinance extending the city limits were out of the way. The most that can be claimed for the former decision is that the extension ordinance was a defense to the specific claim made in the former suit. The legal effect of it is that the water sued for in the former case was supplied under the ordinance obligation and not under the contract between relator and the board. The court said so, for it held that the board was not obliged to take that water under the contract, and did take it under the ordinance, by virtue of which relator was obliged to supply that water. The contract was not annulled or abrogated; an erroneous declaration of law compelled a change of fact as to a specific part of relator's service. If it be held erroneously that it supplied the water in 1911 and 1912 under the ordinance obligation it cannot follow that water supplied in 1913, 1914 and 1915 in performance of the contract obligation was in legal contemplation supplied under the ordinance obligation. (3) This is not a case where the specific thing sued for has been recovered or defeated in a former suit. Relator has not recovered the thing sued for before, or been denied a recovery of the same thing. In such case the effect of the former adjudication is limited strictly to the very point decided. State ex rel. v. Mining Co., 262 Mo. 502; Cromwell v. Co. of Sac, 94 U.S. 351; La Rue v. Kempf, 186 Mo.App. 72. (4) The petition and writ in this case set forth all the facts which brought before the court the same facts we have now in the present record. They could not have been more formally before the court than we have them now. The defendant instead of relying upon the former decision, which had decided a matter of law merely upon general demurrer, raised the question anew and asked that the court determine the question again, and having got a decision contrary to the former, the question was set at large as the last decision neutralized the first. Chicago v. People, 189 Ill. 349; Pearce v. Brantum, 16 La. 414; House v. Lockwood, 17 N.Y.S. 817; Pratt v. Wilcox, 64 F. 589; Seymour v. Herbert, 92 Pa. St. 499; Peoples Bank v. Health, 175 Mass. 131; Negerle v. Ashe, 33 Cal. 74; In re Evans, 42 Utah 282; Cooley v. Imp. Co., 78 Ore. 384; Simple v. Ware, 42 Cal. 619; Semple v. Wright, 32 Cal. 659; Paskewie v. East, 197 Ill.App. 1. (5) The petition and writ in this case are not the same as in the former case. Here facts are set forth which show the consideration for the contract was the cost of constructing the main, a mile in length, outside the then city limits and for the sole use of the Hospital. When the line was extended within the limits the relator might, and was required to place public hydrants every 500 feet, for which it received an annual return of $ 40 per hydrant. This return it could not have from the line extended outside the limits to the Hospital. The tencent rate was in lieu of that income as well as compensation for water service. Relator had put its funds in the main to be returned to it by the contract rate. The obligation of the contract on its part was to build the main and supply the water, and on the part of the Hospital to pay ten cents per 1000 gallons for water supplied and the construction of the means to supply it. To allow the ordinance to abrogate the contract impaired its obligation, and to compel the relator to use its main in supplying water without the full compensation stipulated was taking its property for a public use without compensation. This question was ignored in the opinion and decision in the former case. In this case this court held the ordinance had no effect upon the contract and expressly held that, if it did have the effect claimed, it would be void as taking away rights secured by the relator by the Constitution. On the present writ this question or matter was decided; in the former case it was not decided. Cromwell v. County of Sac, 94 U.S. 351; State ex rel v. Mining Co., 262 Mo. 502; Norman v. Sylvia, 59 A. (R. I.) 112; C. B. & Q. v. Cass Co., 101 N.W. 11; Evans v. Birge, 11 Ga. 272. (6) In the former case the court decided the relator could not recover on its contract for water supplied in 1911 and 1912, because the ordinance abrogated the contract, the constitutional question not being raised, and hence must have been waived as to the water then sued for. In this case the constitutional question was raised, and the court holds that the ordinance did impair the obligation of the contract, and was therefore without effect to that extent.
OPINION
In Banc
This is an appeal from a judgment for relator in a proceeding by mandamus to compel appellants to audit, allow and pay a claim for a balance alleged to be due for water furnished during a period of about four years preceding the application for the alternative writ. The facts are stated in State ex rel. v. Eastin, 270 Mo. 193, 192 S.W. 1006, and a restatement of them in detail will not be necessary.
Under a franchise ordinance adopted and accepted in 1900, relator, a public service corporation, agreed to furnish water to large consumers in the City of St. Joseph at the rate of six cents per thousand gallons. State Hospital No. 2, of which appellants are the Board of Managers, was situated outside the limits of the city. In 1905 appellants' predecessors in office entered into a contract with relator whereby relator agreed to lay certain pipes and furnish water to the Hospital at a rate of ten cents per thousand gallons. The main was extended and water furnished and paid for at the 1905-contract rate until the city extended its limits in such wise as to bring the Hospital within them. Thereafter, the Board of Managers refused to pay in excess of the ordinance rate of six cents per thousand gallons.
February 23, 1912, relator instituted a mandamus proceeding in this court to compel payment for a balance then asserted to be due under the private contract rate. The alternative writ was quashed by Court in Banc, November 26, 1912. Additional facts will be stated in the opinion.
Appellants contend that (1) an issue conclusive of this case was adjudicated in the former proceeding, (2) there was no compliance with the contract, (3) and acceptance of payment of six cents per thousand gallons estops relator.
I. It is contended the acceptance of payments equivalent to six cents per thousand gallons furnished...
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