The State ex rel. St. Joseph Water Co. v. Eastin

• Decision Date: 26 February 1917
• Citation: 192 S.W. 1006,270 Mo. 193
• Parties: THE STATE ex rel. ST. JOSEPH WATER COMPANY, Plaintiff in Error, v. LUCIAN J. EASTIN et al
• Court: Missouri Supreme Court

192 S.W. 1006

270 Mo. 193

THE STATE ex rel. ST. JOSEPH WATER COMPANY, Plaintiff in Error, v. LUCIAN J. EASTIN et al

Supreme Court of Missouri

February 26, 1917

Error to Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.

Reversed and remanded (with directions).

John E Dolman and Vinton Pike for plaintiff in error.

(1) The ordinance extending the city limits, if given the effect declared by the judgment below, is such an exercise of legislative power delegated by the General Assembly, as may properly be considered a law within the meaning of the provision of the Constitution forbidding the impairment of contracts. F. Stat. Ann., vol. 8, p. 863, art. 1, sec. 10 par. b. (2) The effect of the passage of the ordinance passed and approved by the city of St. Joseph, July 6, 1909, as construed by the judgment in this case is to impair the obligation of the contract of 1900 between the city of St Joseph and plaintiff in error. Under this contract the water company was under no obligation to extend its mains, except where the city by ordinance directed it to do so, and when so directed the city was obligated to rent one hydrant for each five hundred feet of such extension at an annual rental of forty dollars during the term of the contract; and also under this contract the Water Company was under no obligation to furnish water at the same rates to any but private consumers, the State Hospital being a public institution, and therefore a public consumer not supported by municipal taxes as provided in the contract did not come within the terms of the contract specifying a six cent rate for private consumers. The effect given by the judgment to the ordinance of July 6, 1909, extending the limits of the city, is to require the water company to furnish water to this public institution through a pipe line constructed partly over private property, solely by virtue of a private contract entered into in 1905 with said hospital authorities, and not by virtue of any ordinance of the city, at the same rate it is by its contract with said city required to furnish private consumers, and without the payment to it of any hydrant rental, as is required to be paid under said city contract, which rental would in this instance amount to over four hundred dollars per annum, the pipe line in question being about a mile in length. The effect thus given to the ordinance impairs the obligation of said contract between the city and the water company of date March 7, 1900, and deprives plaintiff in error of its rights under said existing contract to the extent stated. Walla Walla v. Water Co., 172 U.S. 1; Railroad v. Texas, 177 U.S. 66; Railroad v. Alsbrook, 146 U.S. 279; Bacon v. Texas, 163 U.S. 207; Water Co. v. Easton, 121 U.S. 38; Water Co v. Sugar Co., 125 U.S. 18; Railroad v. Tennessee, 153 U.S. 486; Light & Power Co. v. Portland, 201 F. 119. (3) The effect of the passage of the extension ordinance of 1909, referred to, as construed by the court below, creates a new right, viz., the right of a public institution to receive water at the same rate as a private consumer, and imposes a new duty, viz., the furnishing of water through a private pipe line constructed under a private contract, prior to the passage of the extension ordinance, without the payment of any hydrant rental, the creation of which new right and the imposition of which new duty are substantially antagonistic to the obligations of the contract of 1900 between the city and the water company. Light Co. v. St. Paul, 181 U.S. 142; Trust Co. v. Columbus, 203 U.S. 311; Railroad v. Duluth, 208 U.S. 583.

John T. Barker, Attorney-General, for defendants in error.

This cause has been once decided by this court. State ex rel. v. Geiger, 246 Mo. 74. In that action plaintiff in error in this suit sued out of this court an alternative writ of mandamus against the then board of managers of State Hospital No. 2 to compel payment of $ 2186.33 alleged to be due at that time under the same contract and under conditions exactly similar to those alleged in the petition in the present case. In fact the $ 2186.33 then sued for constitutes a part of the $ 16,279.84 sued for in this action -- the excess having accrued according to the contention of plaintiff in error since that suit was brought. The issues in the two cases were identical. When the case was in this court before, the decision was based upon the ground that "the contract of 1905 between relator and the board of managers was abrogated by the annexation to the city of the territory upon which the hospital was situated, and the rate as fixed by the ordinance must determine the price to be paid for water thereafter used by the hospital." It was further ruled that there was nothing in the contract that prevented the application of the rate fixed by the ordinance. It will thus be seen that the precise question previously decided upon the demurrer to respondent's return, is raised for decision in this case by respondent's motion to quash the alternative writ. The decision previously rendered is "the law of the case" and will be held to preclude a subsequent examination of the same issues between the said parties. "Where a court has once declared the law in a case, such declaration continues to be the law of that case even on a subsequent appeal." Railroad v. Baker, 4 Ind.App. 66; County Comrs. v. Pritchett, 85 Ind. 68; Richmond St. Ry. Co. v. Reed, 83 Ind. 9; Howe v. Fleming, 123 Ind. 262. "The law of the case consists, not in the reasoning of the court or in the illustrations given, but in the propositions of law actually decided and applicable to the facts in judgment." Heidt v. Minor, 113 Cal. 385. "A rule once made in a case by an appellate court, while it may be overruled in other cases, in binding both upon the inferior court and upon the appellate court itself. In a subsequent proceeding neither the lower court nor the court making the rule can depart from such ruling. A ruling so made is said to be the law of the case." Hastings v. Foxworthy, 45 Neb. 676; Sewing Machine Co. v. Leslie, 118 F. 557; Teakle v. Railroad, 36 Utah 29; Malones Committee v. Lebus, 96 S.W. 519; Westerfield v. Insurance Co., 157 Cal. 339.

FARIS J. Woodson, J., dissents in separate opinion.

OPINION

In Banc.

FARIS, J.

This is a proceeding by mandamus which comes to us on the writ of error of relator who was cast below, to compel defendants, who are defendants in error here, to audit and pay a certain account alleged to be due plaintiff in error for water delivered to State Hospital No. 2, of which defendants in error compose the board of managers.

The facts are few and simple. Those upon which the case turns, run thus: Relator, St. Joseph Water Company, is a public service corporation, organized under the laws of the State of Missouri. In the year 1900 an ordinance was passed, ratified by an election and accepted by said St. Joseph Water Company (hereinafter for brevity called relator), whereby the latter agreed to furnish water for a term of twenty years to the city of St. Joseph and to those of the inhabitants thereof who use water in specified large quantities, at the rate of six cents per thousand gallons. (Certain more definite details of this franchise contract will be hereafter set forth). In the year 1905 relator entered into a contract with said hospital, of which, as stated, respondents composed the board of managers, wherein it was agreed that connections should be made with the mains of the hospital by a water main of relator and water furnished to the hospital for a term expiring December 31, 1915, at the price of ten cents per thousand gallons. More certain and definite details of this contract, which was by relator in all things performed, will be hereafter specifically set out. At the time of the making of the contract between relator and the hospital, the grounds and buildings of the latter were situated outside of and about one mile from the city limits of the city of St. Joseph. In 1909, four years after the making of the contract by relator with the said hospital to furnish the latter water, the city of St. Joseph, by an ordinance duly passed, extended its city limits so as to take in and include the whole of the territory occupied by the hospital. Whereupon, defendants in error (hereinafter called defendants for brevity) refused longer to abide by their contract to pay ten cents per thousand gallons for water, but insisted that the extension of the city limits so as to include the grounds and buildings of the hospital at once put in force the rate of six cents per thousand gallons, which prevailed as to large users in the hospital's class, pursuant to the franchise contract, in other parts of the city of St. Joseph. Thereafter, and from July, 1910, till December 31, 1915, when said private contract expired by its own limitations, defendant refused to pay the relator more than the sum of six cents per thousand gallons for water, and relator, with properly pleaded protest and duress, accepted said sum, but after the expiration of the full term of ten years, brought this action of mandamus to compel defendants to order the payment of the sum of $ 16,279.84, being the alleged balance due, at ten cents per thousand gallons for water furnished after deducting the amount paid as aforesaid at the rate of six cents per thousand gallons.

Upon relator's filing in the circuit court of Buchanan County its petition aptly setting forth all of the above facts and more, an alternative writ of mandamus was issued, which likewise set forth all of said facts aptly. To this alternative writ defendants demurred, which demurrer, being by the court and the parties treated as a motion to quash the writ, was sustained, and plaintiff sued out its writ of error, and the...