Opinion
June 7, 1929.
1. WATER TO COMPETITOR. A public service water company cannot be forced to furnish a breakdown water service to a competitor.
2. PUBLIC WATER COMPANY: Supply to Private Company for Resale. A public service water company cannot be compelled to furnish to a private manufacturing company, which has its own well and supplies water to other companies and private houses at rates fixed by itself, so that in the event of a breakdown or other emergency in the manufacturing company's plant rendering it impossible for it to get water from its own deep well the water company will be forced to furnish it water until the breakdown is repaired or the emergency is removed, thus enabling the manufacturing company to keep its contracts with its customers and furnish them water during such emergency. It may be that the manufacturing company can compel the water company to supply it with water necessary for the operation of its plant during such emergency, but it is not entitled to an order compelling the water company to supply it with water which it in turn sells to its own private customers in competition with the water company within its franchise territory.
3. ____: ____: Public Service: General Public: Rights of Competitors. It is the duty of a public-service water company to supply water to all members of the general public within its franchise territory, at the lawful rate and in accordance with the terms of its franchise and the ordinances under which it operates; and a manufacturing company, as a member of the general public, is entitled to demand sufficient water for the operation of its plant. But when the manufacturing company engages in selling water to members of the general public in competition with the water company, it cannot, in that capacity, be regarded as a member of the general public, and its right to demand water from the water company in order that it may furnish water to its customers, who are members of the same general public, must be measured by the law which determines the rights of one public service corporation against another, which is that one public corporation cannot be compelled to give its property to the uses and benefits of a competitor.
4. ____: ____: Special Privilege: Discontinuance. A manufacturing company has no lawful right to demand that it be supplied with water by a water company to be sold to its own private customers. Such supply, if once granted, is a special privilege, unfair and discriminatory, and being such the water company may discontinue it. A special privilege, if unfair and discriminatory, does not ripen into a right.
5. ____: ____: Private Corporation. It is immaterial whether the manufacturing company, which demands that it be supplied by a public water company with water for resale to its own private customers, is a public-service or a private corporation. Whether the one or the other, the water company cannot be compelled to furnish it water for such a purpose.
6. ____: ____: Fire Hazard: Sufficient Meter. A supply of water designed for protection against fire hazard is a separate and distinct service from the supply of water for domestic and industrial uses; and the remedy of a manufacturing company, if the meter installed by the water company does not furnish sufficient water to protect the property in case of fire, is to make application to the water company for a separate meter for fire service, and not to demand a meter for industrial uses of sufficient capacity to afford it both protection from fire hazard and to enable it to resell water to its own private customers.
Corpus Juris-Cyc. References: Waters, 40 Cyc., p. 792, n. 8.
Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.
AFFIRMED.
A.W. Thurman for appellant.
(1) The plaintiff owned the property where its factory was situated and owned the water line and meter which defendant disconnected and owned the business which it was operating. The defendant arbitrarily interfered with plaintiff's property without notice or hearing. The term property as ordinarily employed, includes every interest any one may have in anything that is subject to ownership, together with the right to freely possess, use, enjoy and dispose of it. Wood v. Life Ins. Co., 198 N.W. 573, 34 A.L.R. 712. Property rights in land protected by the Constitution includes the right to use, lease and dispose of it for all lawful purposes. Terrace v. Thompson, 263 U.S. 197, 68 L.Ed. 255. The unwarranted and arbitrary acts of the defendant deprived the plaintiff of property rights and was the taking of property without due process of law. Dorrance v. Dorrance, 242 Mo. 625; Dartmouth College v. Woodward, 4 Wheat. 518; Bank v. Oakely, 4 Wheat. 235. The defendant in disconnecting the plaintiff's pipe and meter ignored the city, ignored the commission, ignored its rates and took the law in its own hands. It did not apply to anyone to change its rates or to discontinue or abandon the service. Its acts were unlawful. State ex rel. v. Postal Tel. Co., 96 Kan. 298; State ex inf. v. Gas. Co., 254 Mo. 534; State ex rel. Pub. Serv. Comm. v. Railroad, 279 Mo. 455. (2) The defendant's acts were arbitrary and unlawful. The defendant is a waterworks company, operating under ordinance, which provides that the defendant shall supply the city and the inhabitants with water for the prevention and extinguishment of fires, and for domestic, manufacturing, industrial and general uses. The statute, sec. 10477, R.S. 1919, provides that every gas corporation, electric corporation, and water corporation shall furnish and provide such service, instrumentalities and facilities and shall be safe, adequate, and in all respects just and reasonable. Every unjust or unreasonable charge made or demanded for gas, electricity or water, or any service connected therewith or in excess of that allowed by law or by order or decision of the commission, is prohibited. Section 10411 provides that the term "service" is used in its broadest and most inclusive sense, and includes not only the use and accommodation afforded consumers or patrons, but also any product or commodity furnished by any corporation, person or public utility and the plant, equipment, appurtenances, appliances, property and facilities employed by any corporation, person or public utility in performing any service or in furnishing any product or commodity and devoted to the public purposes of such corporation, person or public utility, and to the use and accommodation of consumers or patrons. The defendant's property and the welfare of its employees is a matter of concern to the police powers of the state. A police power embraces regulations designed to promote the public convenience and the general welfare and prosperity as well as those in the interest of the public health, morals and safety. Atlantic Coast Line v. Goldsborough, 232 U.S. 548; Lake Shore Railway Co. v. Ohio, 173 U.S. 285; Railway Co. v. Drainage Commission, 200 U.S. 561; Bacon v. Walker, 204 U.S. 311; State v. Public Service Comm., 272 S.W. 971. (3) The plaintiff is not a public service corporation. The selling of surplus water by private individual or corporation, is not subject to the police power of the State. State ex rel. Dancinger v. Pub. Serv. Comm., 205 S.W. 41; Beal Wyman, Rate Regulation, sec. 1; Cawker v. Meyer, 147 Wis. 320, 133 N.W. 157; Wisconsin River I.M.P. Co. v. Pier, 137 Wis. 325, 118 N.W. 857, 21 L.R.A. (N.S.) 538; Light Power Co. v. Eshleman, 167 Cal. 666, 146 P. 591. The Public Service Act of Missouri never gave a defendant the right to disregard a public duty. The statute nowhere confers the power to act arbitrarily. If the defendant desires to make a new rate, or to furnish a different service, it should have made its application to the Commission. Any act without approval is an unlawful act. State ex rel. v. Railway Co., 279 Mo. 445; State ex rel. Caster v. Postal Tel. Co., 150 P. 544.
D.D. McDonald, Grayston Grayston and C.H. Dickey for respondents.
(1) Competitors of a public utility are not regarded in the eyes of the law as included in the term "general public." Evansville H. Tr. v. Henderson B. Co., 134 F. 973. (2) A public utility is justified in its refusal to supply a private plant with service avowedly intended to be used for competitive purposes, or to permit another to utilize the utility's property to carry on competition. 4 P.S. Comm. Rep. (1st Dist. New York) 472; Barney v. Steamboat Co., 67 N.Y. 301; People ex rel. Tel. Co. v. Central Tel. Co., 41 N.Y. App. Div. 19, 58 N.Y.S. 223. (3) A public utility company is not required to furnish auxiliary or breakdown service to a company which desires such service, not only for its own use, but for the purpose of resale. People ex rel. Edison Co. v. Pub. Serv. Comm., 181 N.Y.S. 259, 230 N.Y. 574, 130 N.E. 899. (4) A public utility is not obliged to submit its property to the use of a rival, to be used for competitive purposes. Home Tel. Tel. Co. v. Light Tel. Co., 139 S.W. 108; People ex rel. Postal Tel. Co. v. Hudson R. Tel. Co., 19 Abb. (N.C.) 468: Railroad Co. v. T.M. Co., 51 F. 611; Cent. Stock Goods Co. v. Railroad Co., 192 U.S. 568; Pac. Tel. Tel. Co. v. Anderson, 196 F. 703; Pub. Serv. Corp. v. Am. L. Co., 67 N.J. Eq. 122; Am. L. Co. v. Pub. Serv. Corp., 132 F. 794. (5) Plaintiff cannot predicate a right upon the mere acquiescence of the Joplin Water Works Company in plaintiff's resale of water as a competitor, even though long continued. "The long continued enjoyment of a special privilege does not entitle the people in this territory to a continuance of that privilege if the same is unfair or discriminatory." St. Johnsbury v. N. England T. T. Co. (Vt.). P.U.R. 1923C, 365, 373. The whole scheme and purpose of regulation of public service corporations is to insure equal treatment of all patrons by absolutely prohibiting unfair discrimination as well as to insure reasonable rates and service; and this cannot be made effective if any customer can acquire a right other than through the filed rates, regulations, and forms of contract required to be kept open to the public. R.S. 1919, sec. 10477, subdiv. 12. No contract can be made that will be binding either upon the utility or the customer, except such as is provided for by filed schedules; and that the only contract which can now, legally, be made between a public utility and the public it serves consists of the rates and schedules on file and the fact that the customer is attached. This cannot be varied by custom or practice. Cicardi Bros. F. P. Co. v. Pennsylvania Co. (St. L. Ct. Apps.), 213 S.W. 531; Overlin v. Gas Electric Co., P.U.R. 1918 A. 691; Railroad Co. v. Kirby, 225 U.S. 155, Ann. Cases 1915 A. 501; Southern Ry. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; Penn. Railroad Co. v. Coal Mining Co., 230 U.S. 184; 57 L.Ed. 1446, Ann. Cases 1915 A. 318.
This case originated before the Public Service Commission by appellant filing a complaint against the Joplin Water Works Company praying for an order of the commission requiring said water company to restore to appellant certain water service which it had theretofore been receiving but which had been discontinued by said water company. After a hearing, the commission dismissed appellant's complaint. On review the circuit court affirmed the order of the commission and complainant appealed.
The Joplin Water Works Company is a public service corporation located in the city of Joplin and engaged in the business of furnishing water to consumers in said city. The appellant, Rogers Iron Works, Inc., is a corporation located in the city of Joplin and engaged in the manufacture of mining machinery and equipment and has in its employ from one to two hundred men. Its plant occupies an entire block of ground. In the prosecution of its business it uses daily about thirty thousand gallons of water. Appellant has on its premises a well about one thousand feet deep, which is equipped with a deep well pump. Water is pumped from this deep well into a standpipe which holds about seventy-six thousand gallons. From this standpipe water is conveyed by means of pipes to various places in appellant's plant where and when it is needed in the prosecution of the work in said plant, or for fire protection on the inside of the building and for the comfort and safety of the employees working therein. In addition to the thirty thousand gallons used daily by appellant, it sells to the Frisco Railroad about eighty thousand gallons per day and also supplies twelve dwelling houses with water for domestic purposes. The railroad and the dwelling houses are not located on appellant's premises and are not used by it in the prosecution of its business, but are independent water users, and although located along the Joplin Water Works Company's mains and within easy access thereto, appellant supplies them with water and collects a fee therefor. Appellant's deep well furnishes it an adequate supply of water except when its pump is out of order. The capacity of the well is one hundred and twenty-five gallons per minute and the pumping capacity is three and one-half million gallons per month. The Joplin Water Works Company's mains were connected through a two-inch meter with the pipes and mains of appellant's water system for the purpose of supplying appellant with water in case of a breakdown of appellant's deep well pump or any other emergency rendering it impossible for appellant to get its water supply from its own deep well. This connection had been maintained for several years prior to the institution of this suit.
In September, 1927, the Water Works Company disconnected the two-inch meter and installed in its stead a five-eighths-inch meter. This proceeding was instituted to compel the water company to reinstall the two-inch meter.
The question for determination is whether or not the respondent Water Works Company should be forced to furnish a breakdown water service to a competitor. There is no question but what appellant must be regarded as a competitor of the Water Works Company. The evidence shows that appellant had been selling water to the Frisco Railroad Company for a number of years at nine cents per thousand gallons. In 1927, when its contract with the railroad was about to expire, the water company opened negotiations with the railroad company with a view of obtaining a contract to sell it water in the future. The railroad company concluded to terminate its contract with appellant, and buy its water from the water company at eight cents per thousand gallons and so notified appellant and the water company. When appellant received notice of the cancellation of its contract with the railroad, it then offered to furnish the railroad with its water supply at seven cents per thousand gallons and thus retained the business and continued to sell water to the railroad. In addition to this, it supplied twelve dwelling houses with water for domestic use.
What appellant asks in this case is that the water company be compelled to connect its water system with that of appellant's so that in case of a breakdown or other emergency in appellant's plant rendering it impossible for appellant to get its water supply from its own deep well, the water company will be in a position to furnish it water until the breakdown is repaired or the emergency removed, thus enabling appellant to keep its contract with its customers and furnish them water during such emergency, as well as obtaining water necessary to the operation of its manufacturing plant during said time. It may be that appellant would be entitled to the connection asked for in order to get water necessary to the operation of its manufacturing plant during an emergency, but when it is selling water in competition with the water company, to customers in the franchise territory of the water company, a different question is presented. This exact question was decided in People ex rel. New York Edison Co. v. Public Service Commission. 181 N.Y.S. 259. In that case, Acker et al., a partnership, had a private electric generating plant from which it supplied itself and its tenants with electric current. It also sold electricity to other customers in the same block. The Public Service Commission ordered relator to furnish said partnership a breakdown service. On review, the order of the commission was reversed. In disposing of the case the court said:
"Whether or not the petitioner is an electrical corporation coming within the supervision of the Public Service Commission, it is perfectly clear that the statute intended to make a distinction between those corporations which were manufacturing gas or electricity for their own purposes, or the purposes of their tenants, and those who went further and assumed to sell their gas or electricity to outsiders. The main significance of that distinction would seem to be that, while it is engaged in selling electricity to outsiders other than its own tenants, it has not the rights of the public to demand service upon payment of the legal rates, but it has only the rights that one public service corporation has as against another, which seems to be settled by the authorities cited, and does not include the right to demand service of a competing company for the purpose of enabling the petitioner to undersell that competing company and take away its customers."
A somewhat similar question was before this court in Home Telephone Co. v. Sarcoxie Light Telephone Co., 236 Mo. 114, 139 S.W. 108. It was there contended that one telephone company had a lawful right to force physical connection of its lines with the lines of another company for its own private business. In disposing of the contention there made, we said at page 137:
"To hold that the Kinloch Company could have built its lines from the East to the city of St. Louis, and then under our laws could have compelled a physical connection with the Bell Company lines, and used the same for forwarding their own business, to my mind is preposterous. It would be a virtual confiscation of property rights. Corporations are separate entities, and as such are only entitled under our statutes to the same rights as an individual. This right is to be treated as the general public is treated, and not otherwise. Each and every individual cannot build independent phone lines and compel a phone company to connect them with the switchboard. Competing companies have no greater rights. But, in addition to all this, the contention of defendant, if sustained, would not encourage competition, but rather retard it,"
In the instant case, it was the duty of the water company, as a public service corporation, to supply water to all members of the general public in the city of Joplin, at the lawful rate and in accordance with the terms of its franchise and the ordinance under which it operates. If appellant were demanding a water service sufficient for the operation of its manufacturing plant, it, as a member of the general public, would be entitled to such service. On the other hand, when appellant steps aside and essays to engage in selling water to members of the general public in competition with the water company, it will not, in such capacity, be regarded as a member of the general public but as a competitor of the water company, and its rights in the premises must be measured by the law which determines the rights of one public service corporation against another, and not by the law which fixes the rights of a member of the general public against a public service corporation. Speaking to a kindred question in Evansville H. Tr. Co. v. Henderson B. Co., 134 F. 973, the court said,
"One water company or one telephone company or one telegraph company or one street railway company or one railroad company, while bound appropriately to serve the general public, cannot, unless under express statutory enactment and by due process of law thereunder, be compelled to give its property to the uses and benefits of a rival, except by some form of condemnation. The rival is not, ordinarily, to be included in the term `general public.'"
When appellant sold water to the railroad and to individuals, it was carrying out its own private contract with its customers. It would not accord with reason or justice to say that the water company must furnish water to appellant, a competing company, to enable it to perform its own private contract, and we decline to so hold. This conclusion disposes of appellant's contention that the unwarranted and unlawful act of the water company in disconnecting the two inch meter deprived it of property rights and amounted to the taking of property without due process of law. Appellant never had a lawful right to the service it is now demanding; therefore the act of the water company in discontinuing such service was neither unwarranted or unlawful. Such service, if granted, would be a special privilege, unfair and discriminatory. The continued enjoyment of a special privilege does not ripen into a right where, as here, such special privilege is unfair and discriminatory. [St. Johnsbury v. N. England T. T. Co. (Vt.), P.U.R. 1923C, 365, 373.]
Contention is made that appellant is not a public-service corporation and that the sale of surplus water by a private corporation is not subject to the police power of the State.
We are not concerned whether appellant is a public-service or a private corporation, because in either event the water company would not be compelled to furnish it with water for resale to enable it to fulfill its own private contract to furnish its customers with water. [Authorities supra.]
It is contended that the five-eighths-inch meter which the water company installed instead of the two-inch meter does not furnish a sufficient water supply to protect appellant's property in case of fire. There is evidence to that effect. On the other hand there is evidence that the water company, on application, furnishes a service designed for protection against fire hazard. Such a service is separate and distinct from the service for domestic or industrial use. Appellant never applied for this service, and is, therefore, in no position to contend that the three-eighths-inch meter service which was furnished for industrial use is not sufficient in case of a fire hazard.
The authorities cited by appellant in support of its contentions were decided on facts essentially different from the facts in this case and for that reason they are not of controlling influence here.
The judgment of the trial court was correct and should be affirmed. It is so ordered. All concur.