A PPEAL by defendants from a judgment | Waterworks v. San Francisco, 82 Cal. 286, of the District Court for Ramsey 6 L.R.A. 756, 16 Am. St. Rep. 116, 22 Pac. County in plaintiff's favor in a suit to en- 910, 1046; 27 Am. L. Reg. N. S. 277; Kennejoin the shutting off of the water supply bec Water District v. Waterville, 97 Me. from plaintiff's premises. Affirmed. 185, 60 L.R.A. 856, 54 Atl. 6; Moore v. St. The facts are stated in the opinion. Paul, 48 Minn. 331, 51 N. W. 219. Messrs. James C. Michael and Louis R. Frankel, for appellants: The board had power to fix so-called imum rates. Water boards and water companies must furnish to all alike and for any legitimate min-purpose that water may be used. Haugen v. Albina Light & Water Co. 21 Or. 411, 14 L.R.A. 424, 28 Pac. 244; 30 Am. & Eng. Enc. Law, 2d ed. pp. 426, 427; Wiemer v. Louisville Water Co. supra; Farwell Farmers' Warehouse Asso. v. Minneapolis, St. P. & S. Ste. M. R. Co. 55 Minn. Ladd v. Boston, 170 Mass. 332, 40 L.R.A. 171, 49 N. E. 627; Souther v. Gloucester, 187 Mass. 552, 69 L.R.A. 309, 73 N. E. 558; Wagner v. Rock Island, 146 Ill. 139, 21 L.R. A. 519, 34 N. E. 545; State ex rel. Weise v. Sedalia Gaslight Co. 34 Mo. App. 501; Goe-8, 56 N. W. 248. bel v. Grosse Pointe Waterworks, 126 Mich. 307, 85 N. W. 744; Wilson v. Tallahassee Waterworks Co. 47 Fla. 351, 36 So. 63; State ex rel. Vits v. Manitowoc Waterworks Co. 114 Wis. 487, 90 N. W. 442; Smith v. Capital Gas Co. 132 Cal. 209, 54 L.R.A. 769, | 64 Pac. 258. Messrs. Young & Lightner, for respondent: A municipality or water company is required, in fixing rates as they relate to a business affected with a public interest, to make such rates reasonable, fair, and such as yield reasonable compensation. 30 Am. & Eng. Enc. Law, 2d ed. pp. 418, 422, 424-426; Powell v. Duluth, 91 Minn. 53, 97 N. W. 450. The municipality must furnish water to all similarly situated, without discrimination. Wagner v. Rock Island, 146 Ill. 139, 21 L.R.A. 519, 34 N. E. 545; San Diego Land & Town Co. v. National City, 174 U. S. 739, 757, 43 L. ed. 1154, 1161, 19 Sup. Ct. Rep. 804; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 61 L.R.A. 33, 93 N. W. 546; Sheward v. Citizens' Water Co. 90 Cal. 635, 27 Pac. 439; State, Red Star Line S. S. Co. Prosecutors, v. Jersey City, 45 N. J. L. 246; Turner v. Revere Water Co. 171 Mass. 329, 40 L.R.A. 657, 68 Am. St. Rep. 432, 50 N. E. 634; Shepard v. Milwaukee Gaslight Co. 6 Wis. 539, 70 Am. Dec. 479; State ex rel. Milsted v. Butte City Water Co. 18 Mont. 199, 32 L.R.A. 697, 56 Am. St. Rep. 574, 44 Pac. 966; Haugen v. Albina Light & Water Co. 21 Or. 411, 14 L.R.A. 424, 28 Pac. 244; Rockland Water Co. v. Adams, 84 Me. 472, 30 Am. St. Rep. 368, 24 Atl. 840; Crumley v. Watauga Water Co. 99 Tenn. 424. 41 S. W. 1058; Mobile v. Bienville Water Supply Co. 130 Ala. 379, 30 So. 445; American Waterworks Co. v. State, 46 Neb. 194, 30 L.R.A. 447, 50 Am. St. Rep. 610, 64 N. W. 711; Griffin v. Goldsboro Water Co. 122 N. C. 206, 41 L.R.A. 240, 30 S. E. 319; Wiemer v. Louisville Water Co. 130 Fed. 251; 1 Dill. Mun. Corp. §§ 320-322; Spring Valley Jaggard, J., delivered the opinion of the court: The petitioner and respondent estab lished in its large building, used for wholesaling merchandise, an automatic sprinkling system, connected at its own expense with the water mains of defendants and appellants, the board of water commissioners of the city of St. Paul. At the top of the building was a tank filled with water, which maintained a pressure through the pipes in the building equal to the pressure in the mains. When the temperature at any place in the building would rise sufficiently to melt the metal coverings over small holes in the pipes of the sprinkling device, water escaped, the pressure in the pipes would be reduced, and water would flow in from the city mains automatically through a valve. When the apertures of the pipes were closed no city water from the mains was consumed, except incidentally to fill the tank from the general service pipes in the building when they were not otherwise filled, as from wells on the premises. The sprinkling connections were not metered, because the use of meters would deprive the owner of the building of great reduction in insurance otherwise obtainable. The amount of water consumed by smaller pipe connections for general purposes having no connection with the sprinkling system was measured by meters. In 1905 defendants adopted, among other rules, the following, which are the only ones affecting this controversy: Rule 22 prescribed charges for premises using automatic sprinkling systems exclusive of hydrant charges, proportioned to the size of mains installed. Rule 23 fixed the rental of private fire hydrant service. Rule 24, which is the one upon the construction of which in particular the decision of this case rests, was as follows: "Rule No. 24. In all cases where charges for water actually furnished by the board of water commissioners by means of meter rate shall exceed the sum due to the board of water class of service under like conditions." It refers in this connection to Christian & C. Grocery Co. v. Bienville Water Supply Co. 106 Ala. 124, 17 So. 352. It also contends that there is no inherent right to the use of water conferred upon a citizen simply by the enactment of the law creating the water department, that the latter must be supplemented by a contract regulating its use, and that the relation of the city to the user of water is that of contract. Powell v. Duluth, 91 Minn. 53, 59, 97 N. W. 450. There can be little controversy, especially as to the latter part of these contentions, as general propositions of law. But in this case, as will subsequently appear, the city had made only unreasonable rates, had insisted upon the payment of them by the petitioner, and proposed to sever connections unless illegal rates were paid. It did not appear that petitioner had failed or refused to pay a proper rate. In view of the course of trial and of the argument here, however, the merits of the controversy are before the court in accordance with current appellate practice. That practice construes liberally what matters are presented for adjudication upon review, and inclines to finally determine the merits of a controversy. This is especially true where it is apparent that no injury will ensue, and that the result of a disposition on technical or formal issues only will be to have the very questions presented brought up on another appeal after the case had been sent back to the trial court for obvious, but not apparently useful, amendments. Any other mode of procedure would result in only futile trouble, expense, and delay. There is an especial reason for deciding the merits of cases like this, involving public or semipublic questions. commissioners on account of service fur- | pelled to install new connections for this nished for automatic sprinkling systems, hydrants, or large services, then the proper officers of the board are authorized to remit, and there shall be remitted, to any such consumer, all charges due to said board of water commissioners on account of services furnished for automatic sprinkling systems, hydrants, or large services, and provided, further, that wherever the charge for automatic sprinkling systems, hydrants, or large services exceeds the sum due for water furnished under meter rate, then any such consumer shall be given credit for all payments under meter rates." Rule 8 was amended at this time. It prescribed the minimum charges for service pipes one inch or over, exclusive of those supplied dwelling houses, flats, and churches; that is to say, rule 8, as amended, applied to general consumption through large connections equipped with meters, and rule 22 to sprinklers having smaller connections equipped with meters. The meter customers would, under the rules, get credit on sprinkling charge for water consumed up to the point of the minimum charge fixed by amended rule 8. The minimum monthly rate fixed for service pipes equipped with meters under the amendment to rule 8 was the same as the minimum rate for sprinkling connections with like dimensions under rule 22. | The petitioner was charged by the water commissioners for consumption through meter service pipe $4.60, for each of the several months involved. This amount was credited on the sprinkling rates and bills sent for the balance of $20.39 per month. Payment of this amount was refused. The water commissioners notified the petitioner of their intention to shut off its water connection. Thereupon it began this suit to enjoin the commissioners from so doing. The trial judge having found these facts in sub- 2. The first question on the merits is stance, and that "the rates fixed in said whether the rules were impartial or disrules were arbitrary, exorbitant, and un-criminatory. "The board insists that the reasonable," concluded that, as a matter of only way in which it can place the unmelaw, the rules were void and plaintiff was tered sprinklers as nearly as possible upon entitled to an injunction. From the judg-the same basis as those using meters in ment entered accordingly, this appeal was large connections was to give them credit taken. for water consumed through their small 1. The water board raises a preliminary meter service pipes, which they all had. question. "The respondent, before bringing This was the reason for the adoption of this action, did not, in any manner, seek an rule 24. It puts them all on a uniform adjustment of rates with the water board, basis." In point of fact, however, a unior attempt to arrive at a contract with the form basis did not result, either in the prinboard for service; neither does the respond- ciple of the rule or in its actual operation. ent ask the court to ascertain and deter- If the post office undertook, to a limited exmine a reasonable rate and tender pay- tent, to deduct the postage on one class of ment of the rate so determined, but, on matter from the postage on another, or if a the contrary, it asserts the bold proposi- railway company allowed, to a limited extion that it is entitled to the service by tent, a rebate on freight rates to the amount law, without contract or compensation. If of passenger tickets bought, there would this be true, then the board can be com- be a similar and certainly illegal discrim 3. The second question on the merits concerns the right of the city to make any charge whatever for this sprinkling connection. Among the pertinent considerations pressed upon our attention are the following: The city is put to an expense generally by virtue of the sprinkling connections, or specifically because of any necessity to maintain a given hydrostatic The mechanical contrivance is ination. A more nearly analogous case of | borne (C.C.) 76 Fed. 319; 6 Current Law, equally clear illegality would be the per- 1871. mission, to a limited extent, to deduct from ⚫ water charges the amount paid for street paving or sewer construction, where the city operated the water system directly. The rules here involved enable persons having a sprinkling assessment and using also meter service to pay the sprinkling charge by the purchase of meter service. There is no more reason why they should be entitled to satisfy this public charge by buy-pressure. ing water than by buying anything else. such that sufficient water pressure is mainThe discrimination resulting in fact is ap-tained within the building to resist the parent from the difference in charges shown pressure in the pipes. Further, while the by the record to have been made to indi- city has a right to make a charge for waviduals of the same class for the identically ter consumed for ordinary purposes, it has same service. For example, five owners of no right to charge for water supplied for pipe connections are all charged for pipe protection from fire. As a matter of fact connections described as “2-4" a monthly no charge is made or could be made for rate of $1249; the amounts deducted for water used by the fire department in exmeter service are, respectively, $2, $2.25, tinguishing a fire, although a single indi$3, $9, and $13. As a result these various vidual only would be benefited thereby. Inowners are required to pay for exactly the dividuals should not be required to pay same service the balance for sprinkling con- water rates as a penalty for increasing nections in the following sums, respectively: the sufficiency of the fire department at $10.49, $10.24, $9.49, $3.49, and nothing. It their own expense by providing extraordiis trifling with figures to deny that this nary and sufficient means of extinguishing constitutes a demonstration of discrimina- fires immediately when they start. We are tion. The effect is plainly more aggravat- of opinion that the argument does not jused than merely discrimination between tify the conclusion. So long as water supmembers of the same class. It constitutes plied for protection against fire is a purediscrimination against ordinary household-ly public service, under the control and ers and ordinary users of water. They suf-management of municipal authorities genfer in point of law and to an undertermined extent in point of fact from the wrongful act of the board in failing to make a proper charge for both the sprinkling connection and for the metered service, and in failing to collect both. It is no answer to reply that they would not suffer practically, because the water board would illegitimately make more money by compelling a certain part of the community, nolens volens, to buy water from it. It is obvious that, whether it is so designed or not, the practical effect of the rules is to compel prop erty owners to buy water from the city, and not to take it from anyone else or from their own wells, under the penalty of having to suffer this discrimination. It is admitted that, if the rule is discriminatory, it is void. It would serve no useful purpose to cite the authorities for so obvious a proposition. Many of them will be found collated in the brief for the petitioner. The most nearly similar cases to which our attention has been called are Warsaw Waterworks Co. v. Warsaw, 161 N. Y. 176, 55 N. E. 486; Mobile v. Bienville Water Supply Co. 130 Ala. 379, 30 So. 445; San Diego Land & Town Co. v. National City (C. C.) | law requires the terms of that contract to 74 Fed. 79, 174 U. S. 739. 43 L. ed. 1154, 19 be reasonable and impartial, or that advanSup. Ct. Rep. 804. And see Lanning v. Ostage is mutual and involves no expense, is early and under the fire department specifically, no direct charge to individuals is proper. When, however, a sprinkling connection is made with private premises, the situation is materially different. These premises and the primary causes of catastrophe to the building and of the consequent possible use of disastrous quantities of water are primarily under the control, not of the public, but of the owner. A peculiar personal service is provided for his benefit, which is not enjoyed in common by the community in general, but is available only to a limited class of individuals. It does not advance the reasoning in this connection to split hairs between the “use” and the "consumption" of water. As a matter of good sense the property owner beneficially employs the water mains for his own purposes and to his own advantage, although he may not, except in case of fire, actually draw any water from the pipes. It is necessary and proper that for this he should pay. In effect he gets something of pecuniary value from another, which that other is not compelled to give except on the basis of contract. That the 13, 56 N. W. 248; Richmond Natural Gas merely incidental or collateral. Such facts, olis, St. P. & S. Ste. M. R. Co. 55 Minn. 8, do not relate to the right to exact some consideration, however they may affect the extent of the charge which may properly be made. Counsel for the board argues soundly that "§ 19, chap. 9, of the charter, requires the city to pay the board out of general taxation for water furnished for general public fire protection, as well as water used at public fountains and watering places, and by the various departments of the city. If a charge may be made for public fire protection, certainly there should be no question of the right to charge for private use in that regard." The conclusion is reached that a charge can be made. How great that charge should be, in the view here taken, is not before us. On that subject no opinion is expressed. 4. The final question is whether the petitioner was entitled to an injunction. The trial court found that the damage caused by the act of severing the connection between the sprinkling system and the water main would be irreparable. Within the meaning of the term as here used, that finding was sustained by the evidence. The board further contends that there is not at present any contract between the city and petitioner, and that petitioner has no inherent right to a connection not based on contract. It does not follow, however, that for this reason an injunction should be refused. The water board is engaged in a vital public service. It has unequivocally and affirmatively recognized the class of Is service which it granted to the petitioner MISSISSIPPI SUPREME COURT. KOSCIUSKO OIL MILL & FERTILIZER V. WILSON COTTON OIL COMPANY. (-Miss. -; 43 So. 435.) Trust-illegal contract. A contract by a manufacturer of cottonseed products, in order to secure the withdrawal of a competitor from his territory. to deliver to him a certain amount of seed during the season and assume the contract by which the competitor's agency is established, is invalid under a statute defining a trust or combine as, inter alia, a combination intended to hinder competition in the purchase of a commodity, and rendering invalid every contract relative to the business of such trust or combine. (April 8, 1907.) A firmed. The facts are stated in the opinion. Whitfield, Ch. J., delivered the opinion of the court: This is a suit in assumpsit, in which ap charges and discriminations made by public pellant is the plaintiff and appellee is de utility corporations or bodies. fendant, wherein the plaintiff seeks to retained by it by reason of defendant's breach cover damages alleged to have been sus of a contract entered into between them on the 28th day of September, A. D. 1903. At the close of plaintiff's evidence the court, on motion of defendant, excluded same from consideration by the jury, and instructed the jury to find for the defendant, which was done by the jury, and judgment rendered accordingly. The statute which it is alleged makes the Note.-Upon the question of the effect of state anti-trust laws, see note to Straus v. American Publishers' Asso. 64 L.R.A. 719. contract in question void is, so far as its | at said place for appellant during the seed provisions affect this case, as follows: "An Act to Define Trusts and Combines, to Provide for the Suppression Thereof, and to Preserve to the People of This State the Benefits Arising from Competition in Business. "Section 1. Be it enacted by the legislature of the state of Mississippi, that a trust and combine is a combination, contract, un derstanding, or agreement, express or implied, between two or more persons, corpo. rations, or firms or associations of persons, or between one or more of either with one or more of the other: (a) In restraint of trade; (b) to limit, increase or reduce the price of a commodity; . . (d) intended to hinder competition in the sale or purchase of a commodity; (i) to unite or pool interests in the importation, manufacture, production, transportation, or price of a commodity,-and is inimical to the public welfare, unlawful, and a criminal conspiracy." "Sec. 3. Every contract or agreement to enter into or pursue any trust and combine, and every contract or agreement made by another with any trust and combine, or with any member of a trust and combine, for any purpose relative to the business of such trust and combine, is void, and cannot be enforced in any court." "Sec. 11. This act shall be liberally construed in all courts, to the end that trusts and combines may be suppressed, and the benefits arising from competition in business preserved to the people of this state." Laws 1900, chap. 88, pp. 125, 126, 129. It will be noted that the title of this act is "An Act to Provide for the Suppression of Combines and Trusts and to Preserve to the People of This State the Benefits Arising from Competition in Business," and that § 11 expressly requires all courts in this state to liberally construe this act, to the end that trusts may be suppressed and the benefits arising from competition in business preserved to the people of this state. On, prior, and subsequent to the 28th day of September, A. D. 1903, appellant and appellee were both engaged in the business of purchasing cotton seed and converting same into oil, meal, and other manufactured articles; appellant's mill being located at Kosciusko, and appellee's at Lexington, Mississippi. One Potts was president, and C. A. Jones was secretary and treasurer of appellant company, and G. A. Wilson was president of appellee company; both being corporations. On the 28th day of September, A. D. 1903, C. A. Jones came to Lexington for the purpose of establishing a seed agency for appellant, and entered into a contract with one J. M. Clower to purchase seed season then commencing. After this contract with Clower had been made, but as part of the same transaction, and just afterwards, the contract sued on was entered into between appellant and appellee, and what occurred relative to the making thereof can best be told in the language of Jones himself. He was asked this question: "Examine the paper now shown you, and see who wrote it, and when it was written." To which he made the following answer: "September 28th was the date. I wrote this contract, the one for Mr. Clower, and the one for the seed was written by Mr. Wilson. I came to Lexington under the instructions of Mr. Potts to establish a seed agency here and to secure a house and men, and I was instructed to go to Mr. Wilson and tell him we were not coming into his town through any personal animosity to him, but simply on a matter of business, as other people were buying in our town, and I made that statement to Mr. Wilson, and he brought up something about an agreement, and I told him where he could find Mr. Potts (that is, over the phone), and he claimed he never got him, and he did talk to our vice president, and he told him whatever I did in the premises was satisfactory; and I went to Mr. Wilson's house two or three times, and told him I was compelled to make arrangements here, and he made me a proposition to ship us 300 tons of seed, provided we would not buy here, and would hire Mr. Clower and turn the contract over to him, and he would pay this, pay his salary, and this contract was the outcome of that agreement." The contract referred to in the latter part of Jones's answer, and the one sued on, is as follows: This contract, made this the 28th Sept., 1903, by and between Wilson Cotton Oil Company, of first part, and Kosciusko Oil Mill & Fertilizer Company, of second part, shows that in consideration of (300) three hundred tons of sound cotton seed, to be shipped to the second party during the season 1903-4 by the first party at Lexington, Mississippi, prices then being paid from Sidon, Mississippi, or from points where the freight rate is not greater to Kosciusko, the second party has this day assigned to the first party a contract it has with one J. M. Clower to buy seed in Lexington, and the first party is to pay the salary and charges therein mentioned as they fall due each month, and to furnish a seed house and scales to use in buying seed during the months of October, November, and December, 1903, and to furnish money to pay for the seed bought by the said Clower, through |