Griffith v. Vicksburg Water Works Co. , 88 Miss. 371 ( 1906 )

Mayes, Special J,

delivered the ojbnion of the court.^*

We approve the action of the chancellor in dissolving the injunction on this record. This conclusion makes it unnecessary to pass upon some of the questions argued by the briefs of counsel.

We do not hold that this injunction should have been dissolved because of res adjudícala by the record in federal court cause No. 41. The subject-matter of the controversy -was not the same as the subject of this. There it was, in the main, an attempt on the part of the city to disavow, under and by virtue of the act of 1900, its contract with the water supply company for a hydrant service. Here the controversy, in the main, is the right of the city, under the ordinances of 1903 and 1904, to demand damages on unpaid bills under certain conditions, and to regulate the rates for private consumers. Indeed, it is manifest that cause No. 41 could not have involved the validity of these later ordinances, since they were not enacted, and the act of 1904, which authorizes some of them, was not passed until about two years after the filing of the bill in that cause. Neither do we hold that the injunction should be dissolved because of any res adjudicaba in federal court cause No. 79; and this for the reason that when the order of dissolution was made there had been no final judgment in that cause, and the matter was pending in the federal court on a preliminary injunction merely. It is true that we find in this record what purports to be a final decree; but on its face it purports to have been rendered several months after the injunction was dissolved in this cause, and the chancellor’s notes of the evidence on which the motion to dissolve was submitted to him make no mention of this decree, as, indeed, it could not. That final decree has no proper place in this record, and it is not considered. We do hold that the injunction was properly dissolved, for the reason that, in and by the filing in the federal court of the bill in cause No. 79, the federal court competently acquired jurisdiction of the very same questions involved in this cause and sought to be litigated herein. That bill was filed, and jurisdiction invested in the federal court, before this suit was begun; and the chancellor, as we think, correctly dissolved the injunction, because, under those conditions, the filing of the bill herein was improper, the matter being already in litigation by the city in another court of competent jurisdiction. Sharon v. Terry (C. C.), 36 Fed. Rep., 337 (1 L. R. A., 572, notes); Moran v. Sturges, 154 U. S., 256 (14 Sup. Ct., 1019; 38 L. ed., 981) ; Starr v. Railway Co. (C. C.), 110 Fed. Rep., 3, and cases therein cited.

The fact that the bill in this cause was filed by individual citizens and taxpayers, and the bill in cause No. 79 was filed by the city in its corporate capacity, is immaterial. The rule is well settled that a municipal corporation represents its citizens in litigation in respect to matter of general interest as to which all citizens and taxpayers have a common and similar interest. That rule is applicable here. It would be an intolerable burden to the courts and to the water company, or to any other quasi public enterprise similarly conditioned, if, notwithstanding their litigation with the municipality, and a settlement by the courts in such litigation of the extent of the right of such company, the whole question could be reopened at any time, by any private citizen who saw proper so to do, in a controversy over the most trifling amount. McIntosh v. Pittsburg (C. C.), 112 Fed. Rep., 705; Harmon v. Auditor, 123 Ill., 122 (13 N. E. Rep., 161; 5 Am. St. Rep., 502); Elson v. Comstock, 150 Ill., 303 (37 N. E. Rep., 207); McEntire v. Williamson, 63 Kan., 275 (65 Pac. Rep., 244) ; Cannon v. Nelson, 83 Iowa, 242 (48 N. W. Rep., 1033) ; Dicken v. Morgan, 59 Iowa, 157 (13 N. W. Rep., 57); Locke v. Commonwealth, 113 Ky., 864 (69 S. W. Rep., 763) ; Tax Payers v. Tax Collector, 49 La. Ann. Code, 1039 (22 South. Rep., 311) ; Ashton v. City, 133 N. Y., 187 (30 N. E. Rep., 965; 31 N. E. Rep., 334; 28 Am. St. Rep., 619) ; Stallcup v. Tacoma, 13 Wash., 141 (42 Pac. Rep., 541; 52 Am. St. Rep., 25) ; Robbins v. Chicago, 4 Wall., 657 (18 L. ed., 427) ; Treeman on Judgments, sec. 178. We decline to follow the decision in Griffin v. Goldsboro Water Company (N. C.), 30 S. E. Rep., 319 (41 L. R. A., 240), in holding that while a water company, which accepts an ordinance by which a maximum rate is fixed, is bound, and cannot exceed the same because of its contract, yet such rates are not binding upon consumers, who have a right to litigate against unreasonable charges. This holding, it seems to us, practically denies the power of a company, under a contract embodied in its charter giving the power, so to fix a rate as to bind a private consumer at' all. It opens a never-ending and limitless field of litigation. It is well settled that the courts cannot fix a rate; and if, proceeding duly under statutes enacted for that purpose, the municipality cannot do so, or authorize the company by contract to* do so, and thereby bind the citizens, then there is no authority by which it can be done.

It is not a matter open to serious discussion in this state, since the decision by this court in the case of Stone v. Railroad Company, 62 Miss., 607 (52 Am. Rep., 193), decided at the April term, 1885, and before the act of 1886 (Laws 1886, p. 694, ch. 358), amending the charter of Vicksburg, was enacted, that a quasi public corporation may have a contract right to fix rates within a certain designated maximum, and that the rates so fixed are matter of contract guaranteed by the contract clauses of the United States constitution. In that decision the court was manifestly directing its observations to the binding character of the rates as between the company and the shippers; otherwise, the decision was practically meaningless and without point. The philosophy of the situation is simple. Granting that the company is lawfully invested with authority to fix its rates, then such rate being so fixed by'it within the maximum limit allowed by the charter, or allowed by the duly authorized ordinance, is by the courts presumed to be reasonable; and it is not permissible for each individual citizen, in every controversy that may arise, to have that question, once passed upon by the lawfully constituted public authorities charged with power in the premises, reojDened and litigated anew. In what we have said we do not intend to suggest any opinion or decision on .the question as to whether sec. 13 of the ordinance of 1886, whereby the city undertook to authorize the water company to fix its water rates, was legal and constituted a valid authority to that company or not. That is one of the principal questions which the federal court must determine in the litigation now pending before it. Bor the reasons stated, its determination is not necessary here; nor would it be proper, in view of the comity which is always scrupulously observed in cases of conflicting jurisdiction or efforts to create a conflict in jurisdiction between the sí ate and the federal courts.

It is claimed by ajjpellants that the chancellor’s decree was erroneous for the additional and special reason that the bill charged the water company with discriminating against the complainants in their rates; and it is also said that the denial of such discrimination by the answer is not sufficiently explicit. Without deciding that question, and without undertaking to decide whether this bill could be maintained on that branch of the case alone under the circumstances here presented, we hold that the order of dissolution is not reversible for the reason that the injunction itself, as shown by this record, was not against discrimination. The fiat runs thus: “You are directed to issue an injunction addressed to the defendant, the Vicksburg Waterworks Company, requiring it to refrain from cutting off the water or water connections between its water plant in the city of Vicksburg and the houses or residences of the complainants named in the foregoing bill until the amount owing by said complainants respectively to the said Vicksburg Waterworks Company shall be ascertained and determined by the court, and a reasonable opportunity given them to pay the same.” This fiat limited, therefore, the authority of the clerk in the issuance of the injunction writ, and it requires an injunction to issue whereby the defendant shall be restrained from cutting off connections until the amounts owing’by the complainants should be ascertained. The gravamen of the bill, as the same is drawn, consisted in the proposition that the rates demanded by the company were in violation of a schedule of rates fixed by the mayor and aldermen. The serious controversy in the case, therefore — at least the controversy presented with the most insistence and greatest elaboration — was the grave constitutional question which was already within the jurisdiction of the federal court; and on this bill as drawn it was obviously impossible to ascertain finally what the amounts owing by the said complainants respectively to the waterworks company were until that constitutional question so within the jurisdiction of the federal court should be fully determined by judicial decree. This being the case, there is nothing in this record to show any injunction ever issued against discrimination as such. Whatever consideration could be given under the bill to that charge would only be as incidental to the main question of the amounts due; and that main question could not be determined without considering and adjudicating the subject-matter, which was clearly and fully within the jurisdiction of the federal court in the suit already pending. We are not prepared to say that the chancellor erred, therefore, in dissolving the injunction, because of the allegation in the bill that discriminations were made; no injunction, so far as this record shows, having ever issued against discriminations as such.

In the brief of counsel for the appellee it is claimed that we should reverse the decree of the chancellor below in so far as it fixes the attorney’s fee on the dissolution of the injunction at $100; but we cannot act on that matter. There is no cross appeal. Bush v. Nance, 61 Miss., 237. We observe in the record what purports to be an assignment of cross-error filed with the chancery clerk on the 10th of February,' 1906. But this document so filed does not meet the requirements of the practice in respect to cross appeals.,

Let the judgment of the court below be affirmed.

* Chief Justice Whitfield, being akin to one of the parties recused himself and Edward Mayes, Esq, a member of the supreme court bar, was appointed and presided in this case in his place.