Opinion
04-11-1907
FOGG v. OCEAN CITY SEWER CO.
Bourgeois & Sooy, for complainant. Thompson & Cole, for defendant.
Suit by Albert Fogg against the Ocean City Sewer Company. Heard on bill, answer, replication, and proofs in open court. Bill dismissed.
Bourgeois & Sooy, for complainant. Thompson & Cole, for defendant.
GARRISON, V. C. Ocean City, in the year 1893, was a borough, having been incorporated under the seaside borough act (Gen. St. vol. 1, p. 254, § 412). On the 28th day of April, 1893, the council of the said borough passed an ordinance, over the veto of its mayor, dealing with the Ocean City Sewer Company. The original ordinance, as laid before the mayor, acted upon by him, and returned to council, is lost. The complainant introduced into evidence the ordinance book of the said borough. The clerk is, by the statute in question, required to keep such a book, in which he is to record the ordinances as passed. From this exhibit it appears that the borough, by the ordinance in question, granted certain powers and privileges in the streets to the said sewer company, and in the eighth paragraph thereof provided as follows: "That the said company charge and collect in advance for the use of said sewer service as follows: For hotels or boarding houses, seventy-five (75) cents per annum for each sleeping room not exceeding thirty, and fifty (50). cents per annum for each additional sleeping room over said number; private dwellings or cottages, seventy-five (75) cents per annum for each room not exceeding ten, and fifty (50) cents per annum for each additional room over said number. * * *" Under the borough act aforesaid, it was necessary, before the ordinance became effective, that it be published for two weeks, and such publication was duly made, and copy thereof was introduced into evidence, and is an exact copy of the ordinance as it appears in the ordinance book.
The complainant, in 1893, was the owner of certain houses in the borough of Ocean City. In 1895 a writing was executed between the complainant, through the plumbers with whom he had contracted to do the plumbing in his houses as his agents, and the sewer company, which, in its material parts, is as follows:
"Application for Sewer Attachment. Ocean City Sewer Co.
"Ocean City, N. J., June 15, 1895.
"The Ocean City Sewer Company hereby agrees to allow Smith & Thorn to make attachment to the main sewer pipe * * *. Owner of property, Albert Fogg * * *. Full number of sleeping rooms, 4 rooms in each cottage, 5 cottages, 20 rooms in all. Sewer to be used at the following rates per annum:
| All sleeping rooms of 30 or under, in hotels or boarding houses...... | $ .75 | each |
| All sleeping rooms over 30........ | $ .50 | " |
| All sleeping rooms of 10 or under in private dwellings.............. | $ .75 | " |
| All sleeping rooms over 10 in private dwellings................. | $ .50 | " |
"* * * I do hereby make application for a sewer attachment as above, and do grant permission to enter premises for all purposes relating to said sewerage, and do agree to conform to and comply with all laws, resolutions, rules and regulations which have been or may at any time hereafter be enacted relative to the use of sewerage. * * *
"[Signed]
Albert Fogg,
"H. C. Smith."
By the ninth section of the ordinance it was provided that, if the company did not change the outlet of its sewers before the expiration of 10 years from the passage of the ordinance, it must reduce the schedule of rates, as provided in paragraph 8, 20 per cent. The 10-year period expired in 1003. The company did not change the outlet of its sewers. In 1903, therefore, the company was not empowered, under the ordinance, to charge more than the schedule in paragraph 8, less 20 per cent.
Beginning in 1903, the company rendered bills to the complainant for his sewer connections for the private houses or cottages owned by him upon the basis of the number of rooms contained in each cottage. Up to that time, and during the 10-year period from the passage of the ordinance, its bills had always been based upon the number of sleeping rooms in each of such private houses or cottages.
It is the contention of the complainant that the company has no right in the premises to charge him for each house any more than 75 cents per sleeping room, less 20 per cent. The complainant seeks to justify this position by the contention that the original ordinance considered by council, vetoed by the mayor, and passed over the latter's veto, contained the word "sleeping" before the word "room" or "rooms" in the paragraph relating to the rates to be charged for private dwellings or cottages. He argues that, since the paper upon which the original ordinance was printed or written has been lost, he has the right to introduce evidence of a secondary nature as to the contents thereof, and he called two of the members of the borough council, who were members at the time that the ordinance was passed over the mayor's veto on the 28th of April, 1893, to endeavor to prove that the word "sleeping" was in the original paper. At that time the council consisted of five members. Before the complainant can prevail, It must be first settled in his favor as a matter of law that the official record of the contents of an enactment may be varied by parol evidence. It is conclusively settled in this state that it may not Bloomfield v. Board of Chosen Freeholders of Middlesex County (Sup. Ct. N. J. 1907) 65 Atl. 890, and cases there cited. Even were the law otherwise, I do not think that the complainant in this case has proven the fact for which he contends.
This leaves for consideration the question as to whether or not the written paper, dated June 15, 1895, is a contract between the complainant and defendant of such a nature and kind, and of such duration, that the defendant, under It, is bound to continue to furnish service at the rate of 75 cents per sleeping room for each of the houses of the complainant in said paper mentioned. I think the effect of that paper writing and the conduct of the parties was to license the complainant to connect with the sewerage system of the defendant at the prices therein mentioned (Fogg v. Ocean City [Sup. Ct. N. J. 1907] 65 Atl. 885); that there was not constituted thereby a continuing contract of perpetual duration; that in effect the arrangement between the parties was from year to year. Under the ordinance, the rates were to be paid in advance. The complainant was not bound to connect, or to continue a connection once made. If he chose to act upon the license, he could do so, and then became bound to pay the rates specified in the paper. He could discontinue the connection without subjecting himself to any claim for damages on the part of the defendant. The defendant, on its part, was bound to furnish the service at the rates specified for any year it served the complainant until it gave due notice of a change of rates for an ensuing year. It had the right, up to the limit authorized by the ordinance, to change the rates. It was not bound by a definite binding contract perpetually to serve at the rates mentioned in the paper writing.
Since the complainant fails to prove that the charges were unauthorized, he fails to make out a case, and his bill must be dismissed, with costs.