Wagner v. City of Rock Island

• Decision Date: 19 June 1893
• Citation: 34 N.E. 545,146 Ill. 139
• Parties: WAGNER v. CITY OF ROCK ISLAND.
• Court: Illinois Supreme Court

146 Ill. 139

34 N.E. 545

WAGNER

v.CITY OF ROCK ISLAND.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from appellate court, second district.Ira O. Wilkinson and Adair Pleasants, for appellant.

Joseph L. Haas, for appellee.

The facts appear in the following statement by BAILEY, C. J.:

This was a bill in chancery, brought by George Wagner against the city of Rock Island, to have a certain ordinance of the city fixing the rates or taxes to be paid by persons using water from the city waterworks held invalid, and set aside, and for an accounting as to the water rates or taxes justly payable by the complainant, and also for an injunction restraining the city and its officers from shutting off the complainant's water supply until the final determination of the suit. The city demurred to the bill, and, that being overruled, it elected to abide by its demurrer, and a decree was thereupon entered in accordance with the prayer of the bill. On appeal to the appellate court the decree was reversed, and the cause was remanded to the circuit court, with directions to sustain the demurrer and dismiss the bill; and the complainant now brings the record to this court on appeal from the judgment of reversal.

The bill alleges, in substance, that the city of Rock Island is a municipal corporation organized February 10, 1857, and reorganized and existing since December, 1879, under the general law for the incorporation of cities and villages; that in the fiscal year 1871-72 the city constructed a system of waterworks, which in the year 1881-82 was reconstructed and extended, and is still owned and maintained by it, for the purpose of supplying water from the Mississippi river to and for the use of the city and its inhabitants, and has from time to time assessed and collected from its inhabitants such taxes or rates for the water so supplied as it has deemed just and expedient; that the complainant is, and for 18 years or more last past has been, a brewer, and the owner of a brewery, in the city, known as the ‘Atlantic Brewery,’ and for several years has had connected therewith a malt and bottling department; that for the purposes of his business he has used, and does use, large quantities of water, obtained to a considerable extent from the city waterworks, and has regularly paid to the city therefor all taxes or rates assessed to or demanded of him by the city, up to May 1, 1889; that up to that date the annual taxes or rates required to be paid to the city by consumers of water obtained through the waterworks were fixed and assessed against small consumers by general assessment at specified schedule rates per room, for all residences, boarding houses, hotels, offices, sleeping rooms, shops, restaurants, stores, and the like, and for large consumers at specific sums, agreed upon with them, respectively; and that the amount of taxes or rates so charged against and paid by the complainant for several years prior and up to May 1, 1889, amounted to from $500 to $525 per annum.

The bill further alleges that on March 18, 1889, the city passed an amended ordinance, providing, among other things, that the water rates or taxes which should be paid by persons using water from the city waterworks should be at certain schedule rates per room for all residences, boarding houses, hotels, offices, sleeping rooms, shops, stores, restaurants, and like uses, by small consumers,-those rates being the same, or less, than were specified in the ordinance before it was amended; that for railroads, breweries, bottling establishments, manufacturing establishments, elevators in stores or other buildings, wholesale liquorstores, rectifying liquor establishments, manufacturing drug stores, steam laundries, and all other large consumers not specified, meter rates, as prescribed in a table of rates fixed and adopted by the ordinance, should be charged, and for laundries not using steam, small dye works, and all other small consumers, the rates to be paid should be estimated meter rates, according to the consumption of water, the estimate to be made by the superintendent of the waterworks, with the approval of the committee, subject to the decision of the city council in case of disagreement; that it was further provided by the amended ordinance that where more than one meter was required by one consumer, owing to the arrangement of the connections with the mains, the rate should be computed separately for each meter, provided that exceptions might be made where the average for each meter was not less than $250, and all in the same vicinity, and also that the superintendent, with the approval of the committee, should place meters, as rapidly as practicable, on the premises of all consumers, where, on account of uncertainty as to the quantity consumed, probable waste of water, or other cause, he believed that the interests of the city required it; that any consumer who had for one year paid at the rate of $100 per annum, or over, for water supplied from one one connection with the street main, should, within six months after making written application, be supplied with a meter, at the expense of the city, and thereafter pay meter rates; that any consumer paying less than $100, who was of the opinion that his rate was too high, should be supplied on like conditions, provided he paid the cost of the meter, exclusive of setting and repairs.

The bill further alleges that the erection and maintenance of the waterworks by the city was not for purposes of speculation and profit, or for deriving therefrom a revenue, as such, from its inhabitants, by the sale of water to them, or requiring them to pay the cost of construction and maintenance thereof, or interest thereon, or on the value of the plant, but for the purpose of supplying water from the Mississippi river to and for the use of the city and its inhabitants; that, under the law which provided for the erection of the waterworks, the cost thereof was to be paid by general taxation, and that it has been so paid, with the exception of $50,000, for which unmatured bonds of the city are outstanding; that, for the 17 years during which they have been operated, the waterworks have been more than self-sustaining, and are yielding a surplus revenue of over $4,000 per annum; that at the time of the passage of the amendatory ordinance the number of consumers of water from the city waterworks was about 1,100, of which about 1,030 were of the class designated as ‘small consumers,’ and that the number had not been materially less for several years prior to that date, and had not materially increased since; that it is estimated by the city authorities that under the amended city ordinance the receipts for water rates from small consumers will be reduced about $1,500, and that the amount received from large consumers will be increased about $4,500, thus producing a net increase of $3,000 per annum, and that such increase is unreasonable, unauthorized by law, unjust, and oppressive upon the complainant and a few other large consumers, who are compelled to pay largely increased water rates and taxes; that under the ordinance great inequality and injustice results to the complainant, as one of the large consumers, and others of the same class, by reason of the different methods required by the ordinance, and the partial and imperfect administration thereof, for the ascertainment of the quantities of water consumed, and the amount of water rates or taxes payable therefor; that the city, by its superintendent of waterworks, servants, and agents, on or about May 1, 1889, without any application or request by the complainant, placed in his brewery three meters, for the purpose of indicating and determining the quantity of water supplied from the city waterworks,claiming that the ordinance required the same to be placed and kept there for that purpose, and that the complainant should thereafter pay the rates and taxes chargeable for the quantity of water thereby shown to be supplied; that the complainant, for the preceding two years, had paid to the city at a rate exceeding $100 per annum for the water supplied to him through each of the three pipes connecting his brewery with the street water main, and belonged to the class of consumers who, by the terms of the ordinance, are to be supplied with meters, and to pay meter rates, only after making written application therefor, and that, inasmuch as he has never made such application, he cannot be required to use meters, or to pay meter rates; that if the provision for the payment of rates by meter measurement is valid, and applicable to the complainant's case, it is, in like manner, applicable to the cases of all others of the same class; that although the class of large water consumers numbered about 60 at the time the ordinance was passed, and now numbers between 60 and 70, meters have been permanently attached and operated in not to exceed 10 cases, including the 3 in the complainant's brewery, and that, as to all others of the class, the former system of agreed rates per annum is still continued, instead of meter rates, as required by the ordinance; that in a number of instances meters have been temporarily attached, and upon objection thereto, and to the payment of meter rates, by such consumers, the meters have been removed, and contract rates agreed upon,-the rates so agreed upon being in all cases, as the complainant is informed and believes, considerably less than would have resulted from meter measurement; that in some cases the rates agreed upon have not been increased above those paid under previous contracts, and in others they have been slightly increased, though in but one instance more than 50 per cent., and generally not more than 25 per cent., over previous rates, while the complainant's increase, by the meter rates to which he has been subjected,has been from 500 to 600 per cent, over and above his contract rates prior to May 1, 1889, with no...