Opinion
07-25-1906
WOODRUFF v. MAYOR, ETC., OF CITY OF EAST ORANGE.
Alfred P. Stevens, for complainant Jerome D. Gedney, for defendant.
Bill by Philemon Woodruff against the mayor and city council of East Orange. On final submission. Bill dismissed.
Alfred P. Stevens, for complainant Jerome D. Gedney, for defendant.
PITNEY, V. C. The complainant, Mr. Woodruff, is the owner of a dwelling house and lot in the corporate limits of the city of East Orange, which dwelling is supplied with water for domestic purposes by the defendant, the municipal corporation of that city. The gravamen of the bill is that the defendant, in fixing its charges against complainant's house for its supply of water, has discriminated against complainant in such a manner as to charge him a much greater sum for the same supply and service of water than is charged by it to other houses of the same size and situation as complainant's house. And he asks this court to enjoin the defendant from so doing.
It is alleged by the bill, and admitted by the answer, and clearly appears by the proofs that prior to about three years ago the borough was supplied with water for domestic and other purposes by a private corporation, and that at about that time defendant purchased the distributing plant and supply of the private corporation, and shortly after acquired a new source of water about 10 miles away, and erected a plant thereon, and commenced to supply itself and its inhabitants with water. Two years or more elapsed between the time of the purchase of the private plant and the time, January 1, 1905, when the new supply was introduced. In the meantime, the city was obliged to purchase from the city of Newark a quantity of water to supplement the amount it could obtain from the supply of the old company. I stop here to say that I am satisfied from the evidence that that supply was ample if a very large portion of it had not been wasted and allowed to escape from open and leaky faucets into the then complete sewer system of the city. In all this the city was acting under the authority of the act of the Legislature of April 21, 1878 (P. L. 1876, p. 366. 1 Gen. St. p. 646). Section 9 of that act (1 Gen. St. p. 649) provides that the municipal authorities shall have authority "to ordain and establish ordinances, resolutions, and regulations * * * for fixing and collecting the water rents or prices for water." No question was raised but that under that act the city had power to fix rates. The municipal authorities of East Orange, acting upon that authority, on the 28th of July, 1903, adopted an ordinance fixing the rates for the supply of water to domestic consumers upon two plans. One I shall call the "fixture" plan, also called the "fixed and assessed" rate, and the other the "measured" plan. The fixture plan was a fixed sum for each faucet, kitchen boiler, bath tub, watercloset, and for each horse, cow, and carriage. The other plan was by the measure, and was at the rate of $2.25 for 1,000 cubic feet of water, which equals 7,500 gallons, and which amounts to 30 cents per 1,000 gallons.
(Hydraulic engineers make use of the unit of a cubic foot of water for measuring water power, and the unit of one gallon in dealing with water for domestic purposes. Why this confusing practice is maintained I cannot conceive. Meters for measuring water for all purposes register the amount passing in cubic feet.) Under the system in use by the private company at the time of the purchase by the defendant of its works meters were not in use, but charges to consumers were based entirely upon the number and character of fixtures in the houses and grounds of consumers. The same ordinance which fixed these rates expressly reserved the right to the city at any time to set and maintain a meter upon any service pipe, and to charge the meter price after all water is delivered through any service pipe according to the amount indicated by the said meter. Later on, the city resolved to install meters in all houses used as boarding houses, and this was done. Complainant's house, being at the time used as a boarding house, a meter was therein installed on or before the 1st day of October, 1904, and the house was charged for water by the amount used from that time until the filing of this bill in August, 1905, and thence up to October 1, 1905.
The complaint of the complainant is that the result of charging his house by the meter was to increase the rate charged to him nearly four times. That will appear by the following statement: "The charge by the meter continued until the 1st of September, 1905. a period of 11 months, and amounted to $56.85, an average of $5.17 per month, which equals $62.02 per year. The charges by the fixture would have been $16.25 per year." (A careful scrutiny of the complainant's bills shows that he was, by mistake, overcharged $2.97 for the month of June, and actually paid that much more than was warranted by the water actually consumed.) Now, the question is whether the defendant's conduct in installing a meter in complainant's house which produced the result of increasing his water rates so greatly is so inequitable and unjust that this court ought to interfere. Unless it is inequitable and unjust to him as an individual I can see no ground upon which this court can assume jurisdiction. The power to establish water rates is clearly given by the statute to the municipal government, and the exercise of their judgment in that matter cannot be called in question in this court except on some such ground. Its reasonableness as against water consumers generally,can only be called in question by the Supreme Court in the exercise of its supervisory jurisdiction by the machinery of the writ of certiorari. This proposition seems to me so clear in reason and so thoroughly established by authority that I shall abstain from citing authorities thereon.
The case is in marked contrast with the case of the Long Branch Commission v. Tintern Manor Water Co. (N. J. Ch.) 62 Atl. 474. There the water rates were fixed by the defendant, a private water company, and the question was how much the water company ought to charge in the aggregate, and how that amount should be distributed between the municipality at large and the citizens, and, again, as between the citizens themselves. Manifestly, this court was the only tribunal which could stand between a private corporation and the municipality and its citizens. Besides, the question of jurisdiction of this court was distinctly waived, and both parties agreed to submit to it the question of the reasonableness of the water company's charges. At the hearing herein a large amount of evidence was gone into and admitted, under objection, showing the total cost of defendant's works and the present income therefrom, with the object of showing that it was charging and collecting from the individual water takers more than the circumstances required. The argument was put forth that the defendant and its officers were putting the whole cost of maintenance upon the water takers, and that the city, as such, was obtaining not only a moneyed profit on the investment, but were using a large quantity of water for public schools and drinking fountains and sewer flushing and the like, free of charge, and that the general rates to the water takers should be reduced, and a portion of the interest, charges, etc., for maintaining the works should be charged to and collected from the taxpayer at large. I came to the conclusion during the production of the evidence, for the reasons just stated, and am confirmed therein by further consideration that this court cannot and ought not to deal with that question. It is not either within the proper scope of the bill or within the general jurisdiction of the court. And farther on in the production of the evidence I understood and the minutes show, that counsel for the complainant acquiesced in the view I expressed, that the complainant's right to relief must be based wholly on an unjust discrimination between his house and that of other houses in the city.
For the elucidation of the only question— discrimination—left in this case I was assisted by the evidence of two well-known and eminent hydraulic engineers, Mr. Vermule for the complainant, and Mr. Sherrerd for the defendant, and the merits and demerits of the two systems of fixing water rates, namely, that by the fixture and that by the measure or quantity used, were gone into at length. All hydraulic engineers agree that the fixture system, which was almost exclusively in use in East Orange when the city assumed control of the water supply, was, and necessarily is, very unequal in its application. This is owing, in part, to the fact that the number and character of the fixtures does not ordinarily indicate the number of the consumers and the amount consumed by each, and more especially in this case, because the city was and is thoroughly sewered, so that there is no cheek to the waste of water by carelessness in leaving faucets open, and by leaky fixtures. All admit that the meter system is the fairer of the two, provided provision is made for casting a part of the burden of the construction and maintenance of the works upon the public at large, so as to reach unimproved property facing upon water mains, and to equalize, in part, the difference in frontage of individual dwellings. All agree that no system can produce precise equality.
Before dealing with the evidence of these gentlemen I will notice another circumstance. When the city commenced to supply itself from the old works and was obliged to purchase water from Newark, it found that it was using about 108 gallons per day per head of its population of 25,000. This is a most extravagant use of water for a city like East Orange which is composed almost entirely of residences and having within its boundaries no factories or other establishments consuming an unusual quantity of water. I am thoroughly convinced, and I think I may say it is almost common knowledge that such a city can actually use no more than from 30 to 40 gallons per head per day for strictly domestic purposes. Street sprinkling and washing and sewer flushing may, in the dry season, increase that consumption to 50 and possibly CO gallons per day per head. All beyond that is pure waste. Now, the city of East Orange immediately set about investigating and testing means for a reduction of that excessive consumption. The result was that it succeeded very shortly in reducing the consumption to between 80 and 90 gallons per head. One test it made was to install meters in a considerable number of ordinary houses, and ascertain the amount of water that was consumed before notice was served on the occupant that the house would be charged by the quantity consumed, and then observing the effect upon the amount of consumption after the notice was served that it would be charged by the meter. The result of this test, as detailed by its local superintendent and engineer, Mr. Reimer, was astonishing to anybody who, by experience and observation, had not been already convinced that the difference would be very great. The consumption in some instances, as I recollect the evidence, was reduced toone-tenth of the amount previously passing through the meter. And in all these instances, as observation was made of the number of persons occupying the house in which the test was made, with the result that it was shown that after the parties were notified that they were to be charged by the quantity used, the consumption fell to between 37 and 40 gallons per head per day. This per capita consumption was verified by the amount consumed by the complainant's house during the period here in question. Acting upon this Information the municipal authorities decided to place meters in all boarding houses, and did so, including the complainant's, so that if the authorities were justified in resorting to classification, as I think they were, and as the authorities cited by the defendant hold, they have worked no greater injustice upon the complainant than upon every other house kept as a boarding house in the city.
Coming now to the evidence of the experts. The theory of Mr. Vermule is that the charge by the gallon fixed by the municipal authorities is much higher, about double, that of the charge by the faucet, and to make them equal, he thinks the charge by the gallon should be reduced from $2.25 per 1000 cubic feet, which is 30 cents per 1000 gallons, to 15 cents per 1000 gallons. He reaches that result by the following mathematical reasoning: The present annual income from the domestic consumers is $03,500. Now, Mr. Vermule takes the quantity of water which is daily supplied to the city, as measured at the pumping station, and after allowing about 10 per cent. for waste and loss, he shows that if the city received pay for all that actually passes through the faucets of its consumers at 30 cents a 1000 gallons it would receive an income from those consumers of at least double the amount it actually now receives.
The answer of Mr. Sherrerd to this reasoning is twofold. First, that it is by no means certain that the high proportion of water at the pumping station or receiving reservoir assumed by Mr. Vermule to reach the faucets of the consumers is reliable, but says that statistics of other cities and towns show an average of much less reaching the faucets and much more being lost in distribution. And in the second place he argues that if all the water used for domestic purposes were measured and the consumers charged for it by the gallon the amount consumed would be reduced from between 80 and 90 gallons per head to in the neighborhood of 40 gallons per head. This reasoning is fully sustained by the experience of other towns and cities, and by the experiments of Mr. Reimer, the East Orange engineer above referred to. They showed that as soon as consumers were notified that they were to he charged by the gallon or cubic foot they stopped the enormous waste they had been indulging in, and confined themselves to actual use, and reduced their consumption accordingly.
To this reasoning Mr. Vermule replies that it is not worth while for the city to install meters in all the dwellings at a great initial expense of $60,000 or more, and maintain them thereafter at an annual expense in reading and repairs of $2 or $3 each, because, he says, the saving in pumping will not equal the increased cost due to the interest on the first cost of the meters and the annual inspection and repairs. He says the city already has an ample pumping plant which is not worked up to its most economical capacity in order to supply the city; that it has accommodations at its plant for and has in its employ three complete shifts of engineers and firemen that are able to pump in 24 hours much more water than the city at present uses with all its waste, and that the only saving will be in a trifle of coal. This aspect of the case is really, for reasons already stated, in my judgment, not within my province. But since it was gone into so extensively I will venture to say that, In my opinion, Mr. Vermule's theory is not well founded. If the city can, with 2 shifts of men. working 14 or 15 hours a day. instead of 3 shifts, pump all the water that is necessary for the city, it can certainly save one shift of men. besides the coal. Moreover, since it is the duty of the city to equalize as nearly as practicable the burden of the maintenance of the water plant, much may be said in favor of the position that such duty Involves the establishment of a universal meter system, and the counsel for the defendant declared that it was the intention at present of the city to establish such a system. Moreover, I will venture the observation that it is a serious question whether it is entirely consistent with a sound public policy and true civic virtue to encourage and persist in such a wanton waste of potable water as is now the fashion in many cities, and was exemplified in that of East Orange. Mr. Vermule estimates that he has procured for that city a supply of 12,000,000 gallons a day and has fortified it by buying the land for a considerable distance in each direction from the driven wells which supply it, so that no other municipality can ever encroach upon that supply. Now, is it quite right for the city of East Orange to secure for itself a supply of water three or four times that which it can ever need for the legitimate supply of all the population that can, in all human probability, ever become inhabitants of its territorial limits to the exclusion of others equally meritorious who may hereafter need it? There are those who assert that it is the duty of the government to regulate, distribute, and limit the amount of potable water that any one centre of population can appropriate for itself. But the defendant met this argumentation on the part of thecomplainant so far as regards its unjust discrimination against it by some actual experiments.
Mr. Sherrerd testified that a sort of general introduction of meters into the city of Newark took place very recently (notoriously for the purpose of checking waste) and that he chose 53 of those houses, in which meters had been placed, as they came on the water department books, omitting factories and what may be termed not ordinary cases, and he applied to them the annual charges by the figures found in the East Orange scale (which is the same as the Newark scale) as they were recorded on the Newark books just prior to the insertion of the meters, and he found that the total amounted for one year to $1,151.25. He then took the readings of the meters of the same houses as recorded on the Newark water department books, and applied the East Orange charge of 30 cents per 1000 gallons, and found that it amounted to $1,169.87, a difference of $18.62. or an increase of about 1 1/2 per cent. He was severely cross-examined as to the choice of these 53 water takers, and left me entirely satisfied that they were fair samples of the sort of houses found in East Orange. If this is a fair test it shows that there is no difference between the rate by the fixture and by the meter at 30 cents per 1000 gallons. Further, Mr. Sherrerd swears that the Newark meter rate for domestic use is 15 cents per 1000 gallons, one-half of the East Orange rate, and when he came to install meters in these dwellings in Newark he found the income very seriously reduced in ail small dwellings or dwellings with small families, who were willing to take the trouble to economize, and he found himself obliged to charge an initial or minimum rate of $4 each year in order to make up in part for the loss. He found that the Newark rate was too low; that is, lower than is sufficient to keep up the income of the department to the proper level. Newark supplies a great number of factories and fixes a low rate to them by way of encouragement. Further, defendant's engineer produced 15 instances in East Orange where the result of introducing meters and charging by the gallon was absolutely to reduce the amount below the fixture rate. By the fixture rate the 15 houses were charged $421 per year. By the gallon those charges amounted to but $399.15 per year.
But another test was applied by me at the hearing which in some respects may be considered more satisfactory than that of Mr. Sherrerd, just recited. The receipts by the city from domestic consumers amounted in one calendar year to $93,500. The population by the late census was 25,000, which shows a charge of $3.74 per head. Mr. Vermule thought that the actual population was 27,500, which would be at the rate of $3.40 per head. A close examination of the complainant's water bills from October 1, 1904, to September 1, 1905, shows a consumption for the 11 months of 25,267 cubic feet, which was divided as follows:
| From October 1, 1904, to May 8, 1905.......................... | 31,000 cu. ft. |
| 14,800 | |
| The amount consumed was....... | 16,200 cu. ft. |
A new meter seems then to have been placed, the total reading of which up to August 31, 1905, was 9,067 cubic feet, making a total of 25,267 cubic feet, which at $2.25 per 1,000 cubic feet comes to $56.85. One-eleventh of that is $5.17, which added to $56.85 would make the total cost for one year of $62.02. The same treatment of the number of cubic feet shows the total for the year to have been 27,504 cubic feet or 75% cubic feet per day, which is equal to 566 gallous per day.
Now the family occupying the complainant's house as tenants consisted of a husband and wife and 3 servants and 10 steady bed boarders and 5 table boarders. If we count the actual family occupying the beds at 15 we have them consuming at the rate of 37.7 gallons per head per day. If we count the table boarders at half heads we have them using a little over 32 gallons per head. This rate of consumption agrees with what Mr. Sherrerd estimated it ought to be in a house like that, used for purely domestic purposes, and it corroborates and agrees with the numerous test meters placed by Mr. Reimer in other houses. This result as to a natural and legitimate per capita consumption of a city like East Orange is particularly significant because, as by the contract between complainant and his tenants he assumed the burden of paying the water bills, the tenants and their boarders had no particular pecuniary interest in being saving in the use of water. Now, to ascertain how much this amount of $02.02 is per head we divide it by 15, if we count only the bed boarders, and we have $4.13 each per day, or a sum a trifle more than the whole amount collected came to, divided by the population. If we count in the 5 table boarders, we have them paying at the rate of $3.10 each per year. If we count the 5 table boarders as 2 1/2 persons, as I think we should, because water is used in preparing food and washing dishes and table linen, we have them paying $3.54 each. This result shows that the complainant has not been seriously overcharged. But complainant's bills show, as before remarked, that for six months, namely, from February to July inclusive, a considerably larger amount was used than for the other five months, which indicates some leak or carelessness during that period, so it is not certain that the average amount which I have found used by and charged to the complainant is not greater than it would have been if proper economy had been used. If, then, the complainanthas been charged for the use of the water in his house a sum of money no greater per capita of its occupants than that charged per capita to the other inhabitants of the city, it is difficult to see how he has been injured or discriminated against. Presumably his tenants have had and used all the water they needed. If so, all they or he has lost is the privilege and opportunity of wasting a large quantity of water which has probably been indulged in and enjoyed by his neighbors.
The evidence shows that the governing body of the city, when it undertook the, to it, quite novel task of arranging its schedule of rates, acted with due care and exercised the best judgment of its members. It inquired into the rates charged in many other towns and cities and by private companies. The meter rate adopted is not higher than that charged in many other towns and cities. Every presumption must be made in favor of the validity of the action of such a body. In this case there is not the least reason to suspect the good faith of each of its members, nor to suspect that any one of them supposed that any inequality of burden would result from the enforcement of the rates adopted. I mention this aspect of the case because I do not wish it to be understood that if I had come to a different conclusion on the facts I should have felt justified in interfering in the absence of some positive fraudulent conduct on the part of the city authorities.
It is further to be remarked that the action of the city authorities in fixing the rate in question was experimental. They had not, at the moment, any data by which they could intelligently deal with the question before them. They have since ascertained the whole cost of their new works and the cost of their maintenance and administration. It is entirely within their province to determine how that expense should be distributed between the taxpayers at large and the water consumers, and it is quite probable that when they come to act upon their experience they will see fit to reduce the rate of water by measure. I have pretty carefully examined the various authorities cited by counsel so far as they have come within my reach. One which seems to me to be very much in point and to go much farther than it is necessary to go here is Parker v. City of Boston, 1 Allen (Mass.) 361 (1861). That, as here, was a bill in equity to restrain the city of Boston from enforcing against the complainant, a hotel keeper in that city, certain water rates assessed upon him. There, as here, the water board, under authority of the city, was empowered to fix rates and did so by an ordinance, and according to it the plaintiff's hotel, being valued at over $15,000, was charged $3 per year for each bed for boarders and lodgers. But the city also had the right, under the ordinance, if, upon inserting a meter in the hotel it appeared that it used over 10,000 gallons per day, to charge a minimum rate of 2 cents per 100 or 20 cents per 1,000 gallons. This was done in that case with the result that the assessment was raised from $57.40 for three months up to $206.19, the amount charged by the meter. The bill was dismissed and all the remarks of the court, found particularly on pages 307, 368 are applicable here. I will not transcribe them. The head note is as follows: "An assessment for a quarter of a year, made by the water registrar under the direction of the water board of Boston, at the rate of 2 cents for each 100 gallons of water used in a hotel in Boston, the daily consumption of which, as measured by a water meter placed therein under the provisions of the city ordinance, exceeds 10,000 gallons a day, is legal; although water meters have been put into only a portion of the hotels in Boston, and although the assessment, if made according to the provisions of the city ordinance applicable to hotels into which no water meters have been put, would have amounted to only about one-fourth as much."
I will refer to some of the other cases reported. San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 460, 62 Am. St. Rep. 261; Spring Valley Waterworks v. San Francisco, 82 Cal. 286, 22 Pac. 910, 1046, 6 L. R. A. 756, 16 Am. St. Rep. 116. These and several others of the same character were cases where the municipal authorities fixed rates for a private company supplying the municipality with water. Los Angeles v. Los Angeles City Water Co., 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 886; Los Angeles City Water Co. v. Los Angeles (C. C.) 88 Fed. 720; Wagner v. Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519; Exchange Building Co. v. Roanoke Gas and Water Co., 90 Va. 83, 17 S. E. 789; Mobile v. Bienville Water Supply Co., 130 Ala. 379. 30 South. 445; Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240; Shevard v. Citizens' Water Co., 90 Cal. 635, 27 Pac. 459; Young v. Boston, 104 Mass. 95.
I will therefore advise a decree that the bill be dismissed, with costs.