
    MUNICIPAL CORPORATIONS — ORDINANCES—WATER RENTS.
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Margueritte L. Hutchins v. Cleveland (City) et al.
    Control of Municipal Waterworks Vested in Board of Public Service.
    Under Rev. Stat. 1536-100, 1536-618, 1536-674 et seq. (Lan. 3102, 3093, 3126 et seq.), the placing of water meters on the service pipes connecting a private residence is within the administrative discretion oí the board of public service of a municipality, and that part of an ordinance that affects that power is illegal and void. Hence, an intention or threat by such a board to attach a meter to a residence will not be restrained by injunction, by reason of an ordinance that provides that such meters shall be attached to residences only on request of the owner.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ VÍ4-627, 752-759. — Ed.]
    Appeau from Cuyahoga common pleas court.
    H. A. Beckerman, for plaintiff.
    N. D. Baker, city solicitor, for defendant.
   WINCH, J.

This case is in this court on appeal, and was argued upon a demurrer to the petition, in which the plaintiff seeks'to enjoin the placing of a water" meter upon the service pipe supplying her residence with water. The amended petition, after setting forth that the plaintiff is the owner in fee simple of certain premises in the city of Cleveland, proceeds as follows:

“Plaintiff states that on or about the twenty-first day of August, a. d. 1901, and on the fourteenth day-of February, A. d. 1903, 'Section 999 of the revised ordinances of the city of Cleveland was amended as follows: Ordinance 44559-A, section No. 1:
“ 'Breweries, colleges, county buildings, distilleries, gas works, hotels, malt houses, packing houses, soap factories, livery stables, steam engines, tanneries, theatres, railroad depots, railroad shops, and standpipes, manufactories, and other establishments other than residences, not herein enumerated, if deemed advisable by the board of public service, .shall be metered by the waterworks department. Residences shall be metered only on request of the consumer at the expense of the water department, provided that in case of waste or other improper or unauthorized use of water, of which satisfactory proof has been furnished to the water department, a meter may be set without the consent of the consumer. ’
“Plaintiff: further states that said defendant through the board of public service for the city of Cleveland, has threatened and is about to place, and will place, unless restrained therefrom by order of the court, a water meter upon, premises of said plaintiff, without her consent and without proof of waste, improper or unauthorized use of water upon the part of said plaintiff. That said action contemplated by said defendant is illegal, and in contravention of plaintiff’s personal rights as a citizen and taxpayer of this county and state, and in direct violation of the city ordinance herein set forth.”

Then follows an allegation that said water meter is so constructed as to render the water unfit for household consumption and a menace to health, but upon the hearing- it was agreed that this allegation of the petition should be abandoned and not considered by the court.

The sole question raised by the demurrer is whether the placing of water meters upon service pipes to private residences is within the administrative discretion of the board of public service, or is controlled by the legislative enactment of the city council, above, referred to.

A consideration of the nature of the act sought to be enjoined will assist in determining the controversy thus arising, for the provisions of the municipal code upon the subject are not explicit.

Meters are used for the purpose of measuring the quantity of water furnished or consumed. The price charged for water furnished is based upon the quantity used, as shown by the ' meter. There are other methods of fixing water rates, but the meter system is conceded to be a reasonable and proper method. A meter is of use also in determining whether there has been a waste or other improper or unauthorized use of water.

Is the choice of the means by which water rates shall be fixed' or the use of water by consumers limited, a legislative or administrative function ?

It would seem to be a detail of administrative management, and so we should hold, if there is no provision of the municipal code which clearly makes it the duty of the city council to legislate upon the subject.

Laning Rev. Stat. 3102 (B. 1536-100) provides:

“All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. * * *
“15. To provide for a supply of water, by the construction of wells, pumps, cisterns, aqueducts, waterpipes, reservoirs and waterworks, and for the protection thereof, and to prevent unnecessary waste of wafer, and the pollution thereof, and to apply moneys received as charges for water to the maintenance, construction, enlargement and extension of the works,” etc.

Revised Statutes 1678 (Lan. 3091; B. 1536-615). “The council shall have the management and control of the finances and property of the corporation, except as may be otherwise provided, and have such other powers and perform such other duties as may be conferred by law.”

Laning Rev, Stat. 3093 (B. 1536-618). “The powers of council shall be legislative only, and it shall perform no administrative duties whatever, etc.

Laning Rev. Stat. 3126 (B. 1536-674). “In every city there shall be a department of public service which shall be administered by three •or five directors and the number of said directors shall be fixed by ordinance or resolution of council. * * * They shall make their own rules and all regulations for the administration of affairs under their supervision. ’ ’

Laning Rev.' Stat. 3127 (B. 1536-675). “The directors of public service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all public institutions, except where otherwise provided in this act.”

Laning Rev. Stat. 3129 (B. 1536-677). “The directors of public service shall have the management of all municipal water, lighting and heating plants,” etc.

The above provisions are quoted from the municipal code now in force, adopted in October, 1902. By the former general municipal code, adopted in 1869 (66 O. L. 149), the control of the waterworks of all cities and villages was vested in a board of three trustees, known as the trustees of waterworks, elected by the qualified electors of the corporation, and their powers and duties, as well as the council’s powers and duties respecting the waterworks _ of ^ cities and villages were set out in Chap. 25 of said act, comprising Secs. 334 to 360 inclusive. By the revision of 1880, these sections became Rev. Stat. 2407 to 2433 (see Lan. 3682 to 3709) inclusive and, with the exception of Rev. Stat. 2408, which provided for the election of trustees of the waterworks, have never been repealed. They are yet in full force, though, of course some sections have been-modified by amendment.

Even the special laws for certain cities did not repeal these sections. They sought to create in certain cities other boards with, additional functions, which should be governed also by, the waterworks statutes referred to, but the general statutes remained in full force all the time and were applicable to all cities and villages having waterworks. We therefore disregard all the special codes for Cincinnati, Cleveland, Columbus and other cities.

The code of 1902 repealed Rev. Stat. 2408, providing for the election of trustees of the waterworks and cast their functions upon the directors of public service in cities, by the sections heretofore referred to, and upon a board of trustees of public affairs in villages, specially providing that said board in villages should have all the powers and perform all the duties that are provided to be performed by the trustees of waterworks in the sections of the code of 1869, already mentioned. Revised Statutes 1808 (Lan. 3340; B. 1536-839). That the legislature understood and intended that said sections should apply to the waterworks of cities,- as well as villages, is made clear by an amendment to Rev. Stat. 2433 (Lan. 3709), adopted April 20, 1904 (97 O. L. 135), in which the following occurs:

“It shall be the duty of the board of public service or board of trustees, of public affairs of any municipal corporation to enforce the provisions of this section ’ ’ (referring to the prevention of -pollution of water supply).

If, then, we are correct in our conclusion, that Rev. Stat. 2407 to 2433 (see Lan. 3682 to 3709), above referred to, found as Secs. 1536-519 to 1536-544 in the sixth edition of Bates Annotated Ohio Statutes, apply to waterworks in cities as well as in villages, then we may look to said sections in considering the case made by the demurrer.

Revised Statutes 2410 (Lan. 3684; B. 1536-521) reads as follows.-

“The trustees shall be authorized to make such by-laws and regulations as they may deem necessary for the safe, economical, and efficient management and protection of the waterworks, and such by-laws and regulations shall have the same validity as ordinances, when not repugnant thereto, or to the constitution and laws of the state.”

Revised Statutes 2411 (Lan. 3685; B. 1536-522) reads:

“For the purpose of paying the expenses of conducting and managing the waterworks * # * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount, in such manner as they may deem most equitable, upon all tenements and premises supplied with water,” etc.

Section 2411 underwent séveral amendments after its original adoption in 1869 (66 O. L. 249, See. 338; 71 O. L. 109; Rev. Stat. 1880, Sec. 2411; 84 O. L. 10; 86 O. L. 364; 90 O. L. 198; 94 O. L. 57).' By comparison of the amendment in 71 O. L. 109 with See. 2411 of the revision of 1880, it is apparent that the codifying commission used the words “trustees or board,” inserting the words “or board” as referring solely to the board of trustees of waterworks, and not to any other board under any special government act.

We hold that in Rev. Stat. 2410 and 2411 (Lan. 3684, 3685; B. 1536-521, 1536-522) the words “trustees” and “trustees or board” now include under the present municipal code, the directors of public service in cities, and the board of trustees of public affairs in villages.

We have also concluded that water meters serve a twofold purpose, of providing a method of determining water rents and preventing waste or other improper or unauthorized use of water.

The “manner” or’ method in which water rents shall be assessed seems to be under the exclusive control of the directors of public service, by Rev. Stat. 2411 (Lan. 3685; B. 1536-522).

The matter of waste or other improper or unauthorized use of water, as well as the pollution thereof, seems to be within the concurrent jurisdiction of the city .council by Rev. Stat. 1.536-100 (Lan. 3102), clause 15, above quoted.

Was the ordinance relied upon within this jurisdiction of the city council ?

It appears upon the face of the ordinance that it was not passed for the purpose of preventing pollution of water, or protecting the public health, for it provides that hotels shall have meters, but that private residences shall not.

It is also apparent that, so far as it regards residences, the ordinance was not passed for the purpose of preventing unnecessary waste of water, for it says that residences shall not be metered, without the consent of the consumer, except in case of waste or other improper or unauthorized use of water.

Manifestly the only purpose of the council in passing that part of the ordinance which refers to residences and forbids metering them, was to regulate the manner of assessing water rents', for ■ residences.

That function is specifically conferred upon the directors of public service and with it the council cannot interfere; it has no concurrent jurisdiction over that matter conferred upon it by statute.

We therefore hold that so much of said ordinance as refers to residences is illegal and void. It follows that the directors of public service have a right to make a rule or regulation requiring residences to be metered and that such rule is not repugnant to any valid ordinance of the council.

So much of the said ordinance as requires the directors of public service to install meters is valid, and they are bound to follow such legislation, because it is within the .scope of the council’s authority to prevent waste of water, and their discretion as to the means to be used for that purpose, honestly exercised, could not be questioned by the directors or the courts.

"But here we have a plain attempt on the part of the city council to regulate the manner of assessing water rents, a thing beyond the powers of the council, and specifically imposed by law upon the directors of public service.

We think the demurrer to the petition is well taken and sustain it.

Judgment for the defendant.

Henry and Marvin, JJ., concur.  