Franke v. Paducah Water Supply Co.

JUDGE PRYOR delivered tiie opinion oe the court. Tbe appellant brought this action against the appellee to recover damages for the refusal of the latter to permit him to exercise his calling as a plumber, in refusing permission to him, or those who desired to employ him, to connect the plumbing done by him in any manner with the water mains of the appellee. The court below ad [469] judged that the facts alleged by him did not authorize a recovery and dismissed his petition. The appellee, the Paducah Water Supply Company, had, by some contract with the city, the right to maintain water-works in the city of Paducah, and to lay down its pipes and mains in and along all the streets and alleys for supplying water for domestic and other purposes for the period of forty years, with the privilege on the part of the city to purchase the works within a certain period. The appellee is the successor of I. A. Jones & Co., of the city of St. Louis, and its pipes and mains have been established under the contract with the city, the validity of which (the contract) is not involved in this case, nor is the right of the appellee to lay down and operate its pipes in the streets of the city to the exclusion of the appellant questioned. The obligation of the appellee is to furnish water for public and. private use, those taking water for private use being required to construct and keep in repair, at their own expense, tlm pipes and fixtures on their premises that connect with the main or pipes of the company in the streets. The city, on its part, agrees to pass all ordinances necessary to protect the property of the company from damages, and in accordance with this agreement an ordinance was passed providing that “ whoever shall, by himself, or by “ any person acting under his authority, use or take water “ from any part of the works of said company without a “ license or permit, or shall, without-authority from said “ company, open, hitch to, dig out, cover over,' deface, “destroy, remove or obstruct any fixtures” connected [470] with said water-works, shall be fined not less than five nor more than fifty dollars. The appellant, in the legitimate prosecution of his calling as a plumber, desired to construct or connect by pipes, to be laid on the premises of a number of citizens, with the mains or pipes of the company in the street, so as to provide water for the families and dwellings oí those who proposed to avail themselves of the privileges or benefits of the contract between the city and the appellee. He was met with a refusal by the company for the reason that he had not been licensed by them to follow his vocation, and for the additional reason that he had failed to execute a bond, payable to the company, in the penalty of one thousand dollars, to pay it any damages that might be sustained by reason of the negligent exercise of his work or his action as a plumber. These requisites to the exercise of such a calling are prescribed alone by the regulations and by-laws of the company, and are alleged to be valid because the company has the right to manage and control its own property, and to prescribe the terms upon which they will enter into business transactions with others. By the terms, of the contract between the city of Paducah and the appellee, it has been permitted to exercise this valuable right of appropriating a part of the streets to its own use in consideration that it will furnish water to the city and its inhabitants, and, while the company is under an obligation to lay down pipes in the streets and alleys of the city so as to make the water accessible to the citizen for his private use, by a connection with pipes to be constructed and paid for by the ; [471] owner of the premises, there is no obligation requiring the company to furnish the citizen with the connecting pipes, or any right on the part of the. company to enter and lay down pipes upon private property for that purpose, and the citizen must, therefore, contract with the company or some other person for the construction of these connecting pipes. It is insisted that the company, under its charter, can select the person who is to contract with the citizens, and that no one without a license from that corporation can -discharge such a duty, and not even then without executing a bond to the company, with such a penalty as it may prescribe. When the company undertook the performance of this public duty it devoted its property, including its mains, to the public use; and, while it will be permitted to control and use its property for the purposes contemplated, it has no right to prohibit such a connection with its main pipes as is necessary for the supply of water to the private dwelling or for private use, or to dictate to the owner who he shall employ for that purpose, or prevent one whose education and experience fit him for the business of a plumber, from laying down pipes and connecting them .with the main pipes of the appellee. The second-section of the ordinance adopted on the 28th of February, 1887, and approved in March following, confers no power on the company to prescribe the qualifications of a plumber or the conditions upon which he shall exercise his occupation, and if such a power had been ■conferred it would be in plain violation of the fundamental law of the city. A delegation of power to one [472] corporation or to one man in a city of determining who shall exercise a particular trade, and to provide penalties for misconduct or neglect in the discharge of his duties, is also in plain violation of the organic law of the State. The effect of this legislation on the part of the appellee is to destroy the trade and profession of the appellant, and to compel the citizen either to employ the company,, or some one named by it, and none other, to enter on' his premises and perform labor for his private use, that the company is under no obligation whatever to perforan. That the connection should be properly made can not be questioned, and by one competent to make it, but the right of determining who is qualified is not with the company. That the council of the city may require a license of all plumbers for the protection of its people from fraud and imposition may be conceded; but when such power is conferred upon a corporation, it is such a delegation of legislative control as can not be sanctioned. In this case the exercise of- appellant’s vocation in the city where he lives is destroyed, and the rights of the citizen placed in the hands of the corporation, to be disposed of as the-corporation may see proper. In our opinion the facts alleged present a cause of action, and therefore the judgment is reversed and remanded, with directions to overrule the demurrer, and for proceedings consistent with this opinion.