State. and the noble work in which they are engaged. I to deny to the plaintiff any relief against the We recognize also the faithfulness and fidelity with which the work of instruction was performed under its alleged contract with the board of education, but, with our view of the mandate of the Constitution, we are compelled Judgment must therefore be entered in favor of the defendant, and it is so ordered. All the Judges concur. OREGON SUPREME COURT. chise to that effect. 2. The fact that a pipe laid by a water company along a street in the exercise of its franchise was laid under an agreement with certain persons who paid the expense that they should have the exclusive use of the water and that the company should not tap the pipe without their consent unless it first repaid them for the pipe will not relieve the company from its obligation to supply water to all persons living on said street who may apply for it on reasonable terms. 3. Mandamus is an appropriate remedy to compel a water company to supply water to a person who has a right to it. (December 14, 1891.) of the city of Albina, for the purpose of conducting water through the city. Sec. 2. That the ditches for laying pipes shall be sunk two feet, and the pipes for conducting the water shall be under the surface or level of the established grade eighteen to twenty inches on all improved streets, and no pipe shall be laid so as to interfere with the construction of sewers: provided, that nothing in this ordinance shall be construed so as to grant any exclusive right or privilege of conducting water into the city: provided, further, that said water company shall in no case charge more than one dollar per month for the first faucet, and fifty cents for each additional faucet, in the same building, for family use, or at a private dwelling-house," etc. That the purpose and object of granting to said company the right to lay water-mains in the streets of said city was that the citizens of said city might be furnished with a supply of pure and wholesome water. That by virtue of the authority conferred by said ordinance, the defendant laid down a four-inch water-main in and through Tillamook Street, in the then city of Albina, from the east line of the original townsite of the city of Albina to the west line of Twenty-Fourth Street, in Irvington, and connected the said main with the main on Mar APPEAL by the defendant from a judg-garetta Avenue, in said city, and for nearly a ment of the Circuit Court for Multonomah County sustaining a demurrer to the answering and awarding a peremptory writ of mandamus compelling the defendant to permit plaintiff to tap a water main for the purpose of securing a water supply. Affirmed. Statement by Lord, J.: The This is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook Street, and allowing him to connect therewith a service-pipe, etc. facts alleged, in substance, are these: That the defendant is a corporation, the business of which, among other things, is to furnish the city of Albina, and the inhabitants thereof, with water. That it is operating under a franchise granted to said company by the council of the city of Albina by virtue of an ordinance, as follows: An ordinance granting the right of way through the streets for laying pipes for the purpose of conveying water through the city. The city of Albina does ordain as follows: Section 1. That the Albina Water Company, its successors and assigns, be, and are hereby granted the right and privilege of laying pipes through the streets NOTE. For notes on mandamus, see Fleming v. Guthrie (W. Va.) 3 L. R. A. 53; Commercial Union Teleg. Co. v. New England Teleg. & Teleph. Co. (Vt.) 5 L. R. A. 161. year past has been pumping water, and con- There is no provision requiring the company to supply the inhabitants of the city with water. The fact that the defendant was organized to supply the inhabitants of Albina with water does not of itself impose a duty upon the company to supply whoever may apply. Paterson Gas-Light Co. v. Brady, 27 N. J. L. 245. 72 Am. Dec. 360. Innkeepers and common carriers are bound to receive all who properly apply to them, but this is a duty peculiar to them. Other bailees and persons engaged in other employments are at liberty to demand an unreasonable price before they will undertake any work or trust, or to reject employment altogether. See Redfield, Railways, 293, 294, and note. Having enumerated certain obligations, none other can be imposed by implication. The maxim expressio unius est exclusio alterius applies. Mr. J. C. Moreland for respondent. done for the avowed purpose of debarring the | Albina for the purpose of conducting water residents on said Tillamook Street, between through the city." the original town-site of Albina and Fourteenth Street, and particularly the plaintiff, from the use of water from said main. That the plaintiff is without any legal remedy in It cannot be successfully claimed that by the premises except the writ of mandamus, etc. the act of laying down a pipe in the streets of The defendant denies that, under the authority Albina and conducting water through it in conferred by said ordinance, it laid down a the exercise of a right conferred by this ordifour-inch or any water-main in or through Til-nance, the company thereby placed itself under lamook Street, in said city, as alleged; or con- obligation to any inhabitant of Albina to supnected the said alleged main with the main on ply him with water. Margaretta Avenue, in said city; or for nearly a year past, or for any time, has been pumping water through said alleged main; but the defendant alleges the fact to be that Ellis G. Hughes and C. H. Prescott are owners of the tract of land known as Irvington" and "John Irving's First Addition," east of Fourteenth Street, in Albina; and that in pursuance of an agreement entered into between the said Hughes and Prescott, for the purpose of sup plying water to the property in Irvington, and said John Irving's First Addition, the defend ant laid down in said Tillamook Street a supply pipe for said Hughes and Prescott, for which pipe the said Hughes and Prescott paid, for the sole purpose of supplying said lands with water. That said pipe is owned by said Hughes and Prescott, and is under their absolute control. That the defendant has no right to tap the same, except with the consent of Hughes and Prescott, without paying the said Hughes and Prescott the sum of $3,600, the cost of laying the same. That the business along the line will not justify the defendant in incurring the expense of purchasing said service-pipe and converting it into a main. That defendant has repeatedly applied to said Hughes and Prescott for leave to tap said service pipe, without having to pay the price charged therefor, but they wholly refuse to give consent for the defendant to do so. De nies that the defendant's refusal to tap said main or refusal to supply the plaintiff with water is willful, or without lawful cause, or that the same is done with the avowed or any purpose of depriving the residents of Tillamook Street, or the plaintiff, from the use of water from the alleged main, but alleged that the reason for not supplying the plaintiff with water from said service-pipe of said Hughes and Prescott is that it cannot do so without becoming liable to pay said Hughes and Prescott for said pipe the sum of $3,600, which sum the defendant is not now prepared or able to pay, and for the further reason that the water which would be used along said street will not justify the expenditure, etc. The plaintiff demurred to the new matter stated in the answer, and when the cause was heard the court sustained the demurrer, and gave judgment making the writ peremptory, from which this appeal is taken. Messrs. Dolph, Bellinger, Mallory & Simon, for appellant: The rights conferred are defined, and in terms too specific to admit of dispute. The language is: "That the Albina Water Company, its successors and assigns be and are hereby granted the right and privilege of lay ing pipes through the streets of the city of Lord, J., delivered the opinion of the court: From this statement of the case, as presented by the pleadings, the court below held that, when the defendant entered upon and laid down its water mains in the street, in pursuance of the privilege granted by the ordinance. it became bound to supply every abutter upon the street with water. The contention for the defendant is that the ordinance does not impose the duty upon it to furnish water, but only, if it shall furnish water, that the charge therefor shall not exceed a certain sum hereia specified; that the grant is to lay pipes through the streets for the purpose of conducting water through the city in the mode prescribed, and so as not to interfere with the construction of sewers; but that it contains no provision requiring it to supply the city or its inhabitants with water; hence the ordinance imposes no duty upon the company to furnish water to anyone. In whatever form the argument is presented, it rests essentially upon this contention. While admitting that it is a corporation organized to supply the city and its inhabitants with water, and that the city, by its ordinance, granted it the right to lay water-mains through its streets for the purpose of carrying into effect the objects of its incorporation, it insists that the ordinance is the measure of the rights conferred and the obligation imposed, which, by its terms, only grants "the right and privilege of laying pipes through the streets of the city of Albina for the purpose of conducting water through the city," under the conditions imposed, without "a word in the language of the grant from which it could be inferred that the company is placed under any obligation whatever to supply any inhabitant of the city with water." Counsel says: "If N. J. Eq. 755." the ordinance had imposed upon the company | company, and to the implied obligation asthe duty of supplying the inhabitants with sumed by the company in accepting the grant. water as a part of the conditions of the grant, If it were a grant for mere private uses, emsuch a conclusion might be supported; but powering the corporate body to withhold servwhere no such duty is imposed, and nothing ice at pleasure from all persons, the company is said except that, when the company fur- would be without the right to occupy the pubnishes water, it shall charge no more than a lic streets for the laying of its pipes, and, of certain rate per month, they fail to see the course, the grant of eminent domain for such soundness of the reasoning which makes it the private purpose would be void. In this reduty of the company to furnish water." It is spect, in my judgment, the conclusion in the thus seen that it is the absence of any express Paterson Case was erroneous, and in conflict provision in the ordinance, imposing the duty with the views expressed in the Tide- Water upon the defendant to supply water, upon Case, 18 N. J. Eq. 518, 90 Am. Dec. 634, and which the argument and the case for the de-in National Docks R. Co. v. Central R. Co. 32 fendant is predicated. The effect to be given to the fact that the defendant company was incorporated, under the law, to furnish water to the city and its inhabitants, and the implied obligation which the defendant assumed by accepting the grant or franchise under the ordinance, is entirely overlooked. The defendant is treated as a private corporation, the business of which is private, and not of a public nature, and to meet a public necessity; and, as a consequence, that it should not be subjected to duties or obligations that are not binding upon other private corporations. In support of this view, the only authority cited and relied upon by the defendant is Paterson Gas-Light Co. v. Brady, 27 N. J. L. 245, 72 Am. Dec. 360. In that case the court was urged to assert the doctrine that gas companies, like common carriers and innkeepers, were bound to accommodate the public, but refused on the ground that the lack of precedents upon the subject could only be based upon the strong presumption that there was no principle of law upon which such a view could be supported. The court says: "The company may organize; may make and sell gas or not, at their pleasure; and I see no more reason to hold that the duty of doing so is meant to be imperative than to hold that other companies incorporated to carry on manufactories, or to do any other business, are bound to serve the public any further than they find it to be their interest to do so. It was earnestly insisted on the argu ment that the community have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like innkeepers and common carriers, and that, if no precedent can be found for such a decision, this court ought to make one. But that there is no authority for so holding in England or Amer ica, where companies have been so long incorporated for supplying water and gas to the inhabitants of numerous towns and cities, affords a strong presumption that there is no principle of law upon which it can be supported." But this case and its reasoning was directly disapproved and overruled in the subsequent case of Olmsted v. Morris Aqueduct Proprs., 47 N. J. L. 333, in which the court says: "In that case [Paterson Gas Light Co. v. Brady] Mr. Justice Elmer declared that the company was under no legal obligation to supply gas to all persons having buildings on the line of their pipes, upon tender of reasonable compensation. He rested this view on the ab sence of any express provision in the charter imposing such duty upon the company. This decision fails, however, to give due effect to the purpose of the Legislature in creating the This view is certainly more in accord with recent decisions establishing the doctrine that it is mandatory upon corporations of this sort to supply one and all without distinction. The defendant by incorporating, under the statute, for the purpose of supplying water to the city and its inhabitants, undertook a business which it could not have carried on without the grant of eminent domain over the streets in which to lay its pipes. It was by incorporating for this purpose, and in accepting the grant, it became invested with a franchise belonging to the public, and not enjoyed of common right, for the accomplishment of public objects, and the promotion of the public convenience and comfort. Its business was not of a private, but of a public nature, and designed, under the conditions of the grant, as well for the benefit of the public as the company. "Such a business," says Mr. Justice Harlan, "is not like that of an ordinary corporation, engaged in the manufacture of articles that may be quite as indispensable to some persons as are gas lights. The former articles may be supplied by individual effort, and with their supply the government has no such concern that it can grant an exclusive right to engage in their manufacture and sale; but as the distribution of gas in thickly populated districts is, for the reason stated in other cases, a matter of which the public may assume control, services rendered in supplying it for public and private use constitute, in our opinion, such public services as, under the Constitution of Kentucky, authorized the Legislature to grant to the defendant the exclusive privileges in question." Louisville Gas Co. v. Citizens Gas-Light Co. 115 U. S. 683, 29 L. ed. 510. And, in another case, the same eminent judge said: "The manufacture of gas, and its distribution for public and private use, by means of pipes laid down under legislative authority, in the streets and ways of a city, is not an ordinary business in which everyone may engage, but is a franchise belonging to the government, to be granted for the accomplishment of public objects, to whomsoever, and upon what terms it pleases. It is a business of a public nature, and meets a public necessity, for which the State may make provision." New Orleans Gas-Light Co. v. Louisiana Light & H. P. Mfg. Co. 115 U. S. 650, 29 L. ed. 516. It must, then be conceded that the defendant is engaged in a business of a public, and not of a private, nature, like that of ordinary corporations, engaged in the manufacture of articles for sale; and that the right to dig up the streets, and place therein pipes or mains for the purpose of 2 conducting water for the supply of the city | purpose of supplying cities with water." and its inhabitants, according to the express Morawetz, Priv. Corp. $1129. The books are purpose of its incorporation, and the business replete with illustrations of this principle as in which it is engaged, is a franchise, the exer- applied to water companies, gas companies, cise of which could only be granted by the telephone companies and others in the performState, or the municipality acting under legis-ance of public duties. In Lumbard v. Stearns, lative authority. In such case, how can the 4 Cush. 61, it was held that if an aqueduct defendant refuse to supply water to one and corporation, established for the purpose of all, without distinction, whose property abuts supplying a village with pure water, should upon the street in which their pipes are laid, undertake, capriciously and oppressively, to upon the tender of the proper compensation? enhance the value of certain estates by furnishThe defendant company was organized to sup- ing them with a supply of water, and depreciply water to the city and its inhabitants, and ate that of others by refusing it to them, such the franchise granted by the city authorities was conduct would be a plain abuse of their franthe means necessary to enable it to effect that chise. Shaw, Ch. J., said: "We can perceive purpose. Without the franchise, the object no ground on which to sustain the argument for which the company was incorporated would that this act does not declare a public use. fail and come to naught. It could not carry The supply of a large number of inhabitants on the business of supplying the city and its with pure water is a public purpose. But it is inhabitants with water without authority from urged that there is no express provision therethe city to dig its streets and lay pipe therein in requiring the corporation to supply all famfor conducting or distributing water for public ilies and persons who should apply for water and private use. It was not organized to lay on reasonable terms; that they may act capripipes, but to supply water, and the grant was ciously and oppressively; and that by furnishing to enable it to do it, and thereby effect the pub- some houses and lots, and refusing to supply lic purpose contemplated. When the defend- others, they may thus give a value to some ant incorporated to carry on such a business, lots and deny it to others. This would be a we may reasonably assume that it was with plain abuse of their franchise. By accepting the the expectation of receiving a franchise act of incorporation, they undertake to do all the from the city, which, when conferred, it would public duties required by it.” This is cited undertake to carry on according to the pur- with approval in Lowell v. Boston, 111 Mass. poses for which it was organized. By its ac- 464, 15 Am. Rep. 39, and in Olmsted v. Morceptance of the grant, under the terms of its ris Aqueduct Proprs., supra, in which Pater incorporation, it assumed the obligation of sup-son Gas-Light Co. v. Brady, 27 N. J. L. 245, plying the city and its inhabitants with water along the line of its mains. It could not dig up the streets and lay pipes therein for conducting water except to furnish the city and its inhabitants with water. That was the purpose for which it became a corporation and the grant of the city was to enable it to carry it into effect. And "if the supplying of a city or town with water," as VanSyckel, J., said, "is not a public purpose, it is difficult to conceive of any enterprise intrusted to a private corporation that could be classed under that head." Olmsted v. Morris Aqueduct Proprs., supra. As the defendant could not carry on the business of supplying water without the franchise, the city must have intended in granting such franchise to charge it with the performance of the duty it undertook for the public by the terms of its incorporation, and the defendant, in accepting the benefits of the grant, must have assumed the performance of such duty. In a word, the acceptance of a franchise, under such conditions, carries with it the correspond. ing duty of supplying the public with the commodity which the corporation was organized to supply to all persons without discrimination. It may be laid down as a general rule," says Mr. Morawetz, "that whenever the aid of the government is granted to a private company, in the form of a monopoly or a donation of public property or funds, or a delegation of the power of eminent domain, the grant is subject to an implied condition that the company shall assume an obligation to fulfill the public purpose on account of which the grant was made. The same rule applies to companies invested with special privileges, at the expense of the public, for the 72 Am. Dec. 360, is distinctly disapproved and overruled. In Shepard v. Milwaukee Gas Light Co., 6 Wis. 539, 70 Am. Dec. 479, the company had the exclusive right of supplying the city of Milwaukee with gas. The plaintiff, a merchant doing business on a street containing one of the defendant's mains, fitted up his establishment with the necessary pipes and fixtures for lighting the same with gas. He applied to the company for a supply, tendering at the same time five dollars in advance payment therefor. He was required, as a condition precedent, to sign the printed rules and regu lations of the company. He declined to do so. The company refused to waive the point, and suit was brought to recover damages suffered by the plaintiff because of such refusal. After discussing the question at great length, the court held that the company was bound to furnish gas to the citizen who has made all necessary preparation to receive the same, upon compliance by the citizen with such reasonable terms as the company may rightfully impose. But the court declares that the fact of an exclusive right to manufacture and sell gas in the city would imply an obligation on the part of the company to furnish the city and citizens with a reasonable supply upon reasonable terms; that when the nature and objects of the corporation are considered, namely, the exclusive right to manufacture and sell gas for the purpose of lighting the city and dwellings and business places of its inhabitants, how can it be urged that this is a mere private corporation for the manufacture and sale of a commercial commodity. In Williams v. Mutual Gas Co., 52 Mich. 499, 50 Am. Rep. 266, the action was for damages for the failure of the defendant to furnish the plaintiff with gas, as plaintiff the statute, as regards discrimination? Any person or corporation engaged in the telephone business, operating telephone lines, furnishing telephonic connections, facilities and services to business houses, persons and companies and discriminating against any person or company can be compelled by mandate, on the petition of such person or company discriminated against, to furnish the petitioner a like service as furnished to others." State v. Nebraska Teleph. Co. 17 Neb. 126, 52 Am. Rep. 404; ComTeleg. Co. 61 Vt. 241, 5 L. R. A. 161; State v. Bell Teleph. Co. 36 Ohio St. 296. A corporation undertaking by its acceptance of a public franchise, to perform a certain service, can be by mandamus compelled to perform that service. People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 6 Cent. Rep. 39, 58 Am. Rep. 484; Vincent v. Chicago & A. R. Co. 49 Ill. 33; Farmers L. & T. Co. v. Henning (Kan.) 17 Am. L. Reg. N. S. 266. claimed was the defendant's duty. The court | business being common carriers of news, what says: "The questions presented and argued are the rights of the public, independent of before the judge of the superior court by counsel for the defendant were: first, the plaintiff could not recover, for the reason that the defendant was under no legal obligation or duty to supply any citizen of Detroit with gas. . The court below disagreed with the defendant's counsel upon this point. I agreed with the judge of the superior court that it is the duty of the defendant, upon reasonable conditions, to supply the citizens of Detroit who have their residences and places of business east of the center of Woodward Ave-mercial U. Teleg. Co. v. New England Teleph. & nue with gas, wherever the defendant has connected its mains and service pipes with the pipes and fixtures used at such residences and places of business, and the owners or occupants shall desire the same. The defendant is a corporation in the enjoyment of certain rights and privileges under the statutes of the State and charter and by-laws of the city, and derived therfrom. These rights and privileges were granted, that the corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be exercised. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than necessity; and the duty of this corporation imposed cannot, therefore, be well likened to that of an innkeeper or common carrier, but more nearly approximates that of the telegraph, telephone, or mill owner." Price v. Riverside Land & I. Co. 56 Cal. 431; McCrary v. Beaudry, 67 Cal. 120; Lloyd v. Washington Gaslight Co. 1 Mackey, 331; People v. Manhattan Gaslight Co. 45 Barb. 136; Gaslight Co. of Baltimore v. Colliday, 25 Md. 1; New Orleans Gaslight & B. Co. v. Paulding, 12 Rob. (La.), 378. The same principle applies to telephone companies, which are regarded so far as common carriers in their relation to the public that they must serve all members thereof alike in the transmission of messages. In Central U. Teleph. Co. v. State, 118 Ind. 206, the court says: "While it may not supply and take the place of the telegraph in many instances and for many purposes, yet in others it far surpasses it, and is and can be put to many uses for which the telegraph is unfitted, and by persons wholly unable to operate and use the telegraph. It has been held universally by the courts, considering its use and purpose, to be an instrument of commerce, and a common carrier of news. the same as the telegraph; and by reason of being a common carrier, it is subject to proper obligations, and to conduct its business in a manner conducive to the public benefit, and to be controlled by law. It is by reason of the fact that business men can have them in their offices and residences, and, without leaving their homes or their places of business, call up another at a great distance, with whom they have important business, and converse without loss of valuable time on the part of either, that the telephone is particularly valuable as an instrument of commerce. It being an instrument of commerce, and persons or corporations engaged in the general telephone The pipe which was laid by the defendant in Tillamook Street was laid under the franchise granted by the city, and it had no authority to lay any other kind of pipe or main than prescribed by the ordinance, or for any other purpose than conducting water to supply the city and its inhabitants, without discrimination, to all persons having buildings or lots on the lines of their pipe, upon tender of the proper compensation. There is no claim that Hughes and Prescott had any right to dig up the street and to lay such pipe. It could only be done by the defendant, so far as disclosed by this record, under the grant, in the mode prescribed, and for the purposes already stated. It is true it is alleged, in effect, that the pipe was laid along the street and in front of the property of the plaintiff for the exclusive benefit of Hughes' and Prescott's property, and for the sole purpose of supplying their lands with water. The street in front of the plaintiff's property was subjected to this public use for the special benefit of aiding in the sale of their property. Their object was to induce purchasers to buy land from them for homes in places of others whose property along the street abutted on the main. To favor them, the defendant, by virtue of the franchise granted, laid the pipe, but refused to supply the plaintiff with water from it upon the tender of the amount usually charged for such service. As neither Hughes nor Prescott are parties to this record. what rights or contractual relations they may bear to the defendant we neither know nor decide. We attach no significance to the words "supply-pipe" used in the answer. The pipe was laid along the street and in front of the lot of the plaintiff under the franchise granted by the city, and by the terms of its incorporation, to supply water to the city and its inhabitants. This being a public purpose, and the business of a public nature, the defendant must serve all alike, and for any discrimination mandamus is the appropriate remedy. We discover no error, and the judgment must be affirmed. |