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Los Angeles herald. [volume] (Los Angeles [Calif.]) 1890-1893, October 12, 1890, Image 3

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WATER METERS
Not to Be Placed on Pipes
Supplying Customers.
The Ordinance of the Council
Declared Void. %
All Injunction Granted by Superior
Judge Shaw.
It is Contrary to Law, and Therefore Void,
That Water Meters Be Placed on
Water Pipes at the Option of
I the Company.
Judge Shaw yesterday gave a very
important decision in a matter which
affects both water consumers and the
water companies. It is in the suit of
Sheward against the Citizens' Water
company. The defendant placed a
meter on the pipes supplying the plain
tiff, and the corporation claimed that
under a city ordinance they had a right
to do so. An injunction was applied
for by Mr. Sheward from the superior
court,and it was granted on the ground
that the ordinance is unconstitu
tional.
The decision is as follows:
The defendant is a corporation en
gaged in the business of furnishing
water for domestic use to the inhabi
tants of a portion of the city of Los An
geles. The plaintiff is a resident of that
portion of the city supplied by the de
fendant, and is dependent upon the de
fendant for his water for domestic use.
The defendant has placed a water meter
on the pipes supplying the plaintiff,
and has charged the plaintiff for water
according to the amount used by him
as indicated by the meter, claiming the
right to do so by virtue of a city ordi
nance passed February 24,1890. The
plaintiff refused to pay the sum charged,
and tendered a smaller sum. The sum
tendered was the amount due by the
house rates fixed by the ordinance.
The defendant refused to accept this
sum and threatened to cut off the water.
Thereupon the plaintiff begun this ac
tion to enjoin the defendant from
cutting off the water from his prem
ises.
The case depends on the validity
and effect of the ordinance fixing water
rates passed by the city council on Feb
ruary 24,1890.
This ordinance fixes two rates, one to
be determined by the size of the house
and lawn, and" by certain specific
uses, the other by the amount of water
consumed as shown by a meter. - Con
cerning the use of a meter the ordinance
provides that "any person or corpora
tion furnishing water to the inhabitants
of the city of Los Angeles shall have the
right, in all cases where there is a large
consumption or waste of water, to apply
a meter and collect the following water
rates;" and then follows a schedule of
meter rates.
It is clearly shown by the pleadings
and affidavits in this case that the meter
rates fixed by the ordinance were more
than three times as high for the months
of July and August as the house and
lawn rates. The plaintiff's rate, com
puted by the house and lawn rate, was
$6.20 per month, whereas by the meter
rate as fixed by the ordinance it was
$21.25 for July and $19.60 for August.
It is not shown that there was any waste
of water. There was a large consump- ,
tion of water by the plaintiff, but it does
not appear that the use was any more
than necessary.
The plaintiff claims that the ordinance
is void because the sum to be paid is un
certain, because the rates fixed are not
equal and uniform, because the meter
rates are unreasonably high, and becauss
it discriminates between persons, or
gives the company power to discrimi
nate.
Section 6 of the act of March 7,1881,
(2 Deer, codes p. 137), and section 549 of
the civil code make the following provis
ions on this subject:
" Sec. 6. Rates for the furnishing of
wafer shall be equal and uniform.
There shall be no discrimination made
between persons, or between persons
and corporations."
" Sec. 549. All corporations formed
to supply water to cities or towns must
fnrnish pure, fresh water to the inhab
itants thereof for family uses, so long as
the supply permits, at reasonable rates
and without distinction of persons."
That the ordinance is not uncertain
because the meter rates are not the same
as the house rates is settled by the case
of Water Works vs. San Francisco, 82
Cal., 286. In that case the court says:
" The rates are definitely fixed, and the
fact that there may be one price for the 1
consumer who has a meter and a differ
ent price for one who has none does not
render the ordinance uncertain."
The same case also decides that in a
case like the one under consideration the
courts cannot inquire whether the rates
fixed are reasonable or not. Speaking
of the duty of the board of supervisors
of Sau Francisco to fix reasonable rates,
the court says:
"But the courts cannot, after the
board has fully and fairly investigated
and acted, by fixing what it believes to
be reasonable rates, step in and say its
action shall be nullified because the
courts, upon a similar investigation,
have come to a different conclusion as
to the reasonableness of the rates fixed.
There must be actual fraud in fixing the
rates, or they must be so grossly and
palpably unjust and unreasonable as to
amount to the same thing." (ibid p.
306.)
There is nothing alleged or proven
in this case to show that the
city council in fixing the rates
acted either unfairly, arbitrarily,
or without due investigation. In the
absence of any showing to the contrary,
it may be presumed that the council
performed its duty and acted upon its
judgment and discretion after a proper
investigation. Unless the contrary is
alleged and proven, the court has no
power to revise its action or declare it
void.
The defendant contends that this case
also decides, in effect, that the fixing of
a house rate and a meter rate differing
in amount does not make a distinction
of persons nor allow a discrimination.
The case, however, does not decide this
in terms, nor does it discuss the ques
tion. It simply decides that providing
two different methods of computing
rates does not render the ordinance un
certain. The question whether it al
lowed a distinction of persons or a dis
crimination bltween persons was not
raised. The ordinance was held void on
other grounds;so that the question was
not necessarilf involved in the decision
of the case. There is, besides, a mani
fest distinction between the ordinance
considered ii that case and the one
under consideration here. In that case
the ordinana) gave the consumer the
option to a»ply a meter at the com
pany's experso, and ii the consumer de
THE LOS ANGELES HERALD; BTmi^A^M^^Lm.^^C^^^^n,^^^
manded it, the use oi a meter was com
pulsory upon the company. But the
company had no power to apply a meter
of its own motion or without the consent
of the consumer. The company, there
fore, could not discriminate between
persons. And as every consumer has
the same right to demand a meter at his
option, there was no discrimination
made by the ordinance itself. Its pro
visions applied alike to all. But the
ordinance* of this city gives the
option to the company and makes
its decision compulsory upon the con
sumer. And it may apply a meter to
the premises of one man and refuse to
apply it to the premises of another sim
ilarly situated. It may thus make the
most arbitrary distinctions and discrim
inations at its own will, and regardless
of equality or uniformity. In the case
of two residents using about the same
quantity of water, the company could
indulge in the most obnoxious favorit
ism, by applying a meter to the prem
ises of the one who might happen to in
cur its displeasure, and thus make the
very discrimination and distinction of
persons which the statute expressly pro
hibits. It is claimed that the meter
rates do not, for an entire year, average
much higher than the house rates. This
does not help the case. It only gives
the company a greater opportunity to
discriminate. It is not obliged by the
ordinance to continue the meter meas
urement for any definite time. It may
apply the meter to its enemies during
the part of the year when the meter
rates are higher than the house rates,
and when less water is required and the
house rates are greater, it may take off
the meter and require the payment of
bouse rates.
The ordinance is also uncertain in its
operation. The company has no author
ity to attach a meter unless there is a
large consumption, or a waste of water.
What is a large consumption? Who is
to decide: the company, the consumer,
or the courts ? It will often be difficult
to determine whether a particular
amount is "large," or only ordinary. The
greatest confusion and uncertainty may
arise in the application of this por
tion of the ordinance. In case of
dispute a court of equity must be the
final arbittre, or in an action at
law to recover the rates a jury might be
demanded. The decisions would depend
on the evidence produced. This would
not be the same in any two cases. The
decisions of similar cases would be dif
ferent and the greatest uncertainty must
ensue. Inequalities and differences
would arise, and the object of the stat
ute would be defeated.
For these reasons, I am of the opinion
that the portion of the ordinance pro
viding for meter rates at the option of
the company is contrary to law and
void.
The injunction must therefore be
granted, and it is so ordered.
October 11, 1890.
Lucien Shaw,
Judge.
DAVID A. STERN.
Where the Little Painter Sleeps For
ever.
Citizens of Los Angeles prior to the
past few years, all will readily recall to
mind D. A. Stern, the little sign painter,
whose figure was so familiar on the
streets for many years. By quiet in
dustry and good habits the little Ger
man amassed quite a considerable for
tune. He then retired from active bus
iness, after putting up a very nice build
ing on the west side of Spring street,
between First and Second. He then
' went to his old home in Germany to see
his relatives. While there he was taken
111 and died. His property went
to his relatives. By the terms of
the will, Major J. R. Toberman
was made executor, and also about
$3,000 was set apart to erect a proper
monument in Evergreen cemetery to
the memory of Stern. This was to be
made of marble, but when the matter
was taken in hand, it was discovered
that this sum would put up but a very
paltry affair in that stone. An appli
cation was made to the courts, and
granted to change the material to gran
ite fro mthe hills of Southern California.
The contract was let to Wm. Delcey of
112 North Los Angeles street, and now
the monument is erected in a very
choice spot in the cemetery. A Herald
reporter in walking through the place
a day or two ago was attracted by the
noble shaft and went across to see it.
While he was looking at it the sexton
came up and said the shaft is 24 feet
high. The monument is 34 feet high
from the ground. The shaft is all one
piece and weighs 9 tons, and the lowest
stone in the base is feet square,
and weighs 10 tons. It is one piece.
This inscription is engraved on the
north face of the shaft:
DAVID A. STERN,
Born
December 25th, 1824,
in VaOha Grand Duchy of Sachsen, Wermar
and Eisenach,
Germany;
Died
September 18th, 1887.
On the base is the name:
STERN.
The whole monument is very fine.
The granite is of a very compact grain,
of a fine grey color and takes a high de
gree of polish. The stone was cut in
the quarry of Mr. Declaz, near Colton,
and is ample proof of the fact that there
is a superior quality of granite in this
section. It is probably the best stone
in the world.
Ready to Bnild at Once.
There has been some discussion as to
the probability of the projectors of the
Electric Belt railway proceeding at once
with the work of building their road.
As throwing light on this matter, we
give below a telegram received in this
city yesterday:
"San Francisco, Oct. 11. 3 p. m.
"J. A. Muir, Southern Pacific company,
Los Angeles:
"Electric franchise is for bona fide road
building purposes, not for a speculative
sell-out. The road will be begun imme
diately and pushed ahead as rapidly as
the enterprise will permit, and as fast
as any reasonable person could expect,
consistent with the welfare of the city
and of all parties at interest.
"Money is here now and immediately
available for ten miles of road, and par
ties expect to have cars running over at
least twenty miles of track within the
first year. They will aim to construct a
magnificent system of low-priced, safely
rapid and thoroughly efficient street
locomotion, and one that will be
a pride to the city and its officials grant
ing franchise.
"The electric system as now perfected
is every way the best for city uses, and
when ,once introduced people will won
der how they have done without it; but
like all new things, it takes a little time
to be understood. You know the par
ties interested in this undertaking, and
you know they are abundantly able to
carry it tto completion in the best of
manner, and you can safely, assure
others youN have never been connected
with a more genuine enterprise.
\ "F. V. McDonald."
DEAD IN BED.
A Peruvian Dies Suddenly of Heart
Disease.
Coroner Weldon held an inquest yes
terday afternoon upon the body of Jos6
Alvarez, a native of Peru, 56 years of
age, who was found dead in his room in
the Clinton block yesterday morning.
It was learned from the testimony
taken before the jury of inquisition that
Mrs. Helen Rule, who occupied aj room
in the Clinton block adjoining lhat of
Alvarez, saw him on Wednesday night
last, between 10 and 11 o'clock, in the
hall of the lodging house. Hp then
complained of pains in the regioi of his
heart. After he had entered his! room,
Mrs. Rule heard a sound as of some one
falling, and a woman who occupied the
room directly over that of Alvarpz sub
sequently said she heard a noife as of
some one moaning about that tiiae. No
attention was paid to the sick man,
however, until 8:30 o'clock yesterday
morning, when a man called to «cc him.
After knocking at the door several times
without receiving any response, the vis
itor inquired of Mrs. Rule as to Alvarez,
and at her suggestion looked over the
transom. Seeing that Alvarez was
stretched upon his bed in an unnatural
position, the man called the attention
of the landlady to her boarder, and pro
curing the key of the room, entered it
and found that Alvarez had been dead
for some time. The coroner was noti
fied and the body was removed to the
morgue. The jury, on learning the
facts as above stated, returned a verdict
of death from natural causes.
THE CITY ATTORNEY
Files His Report for Tomorrow's
Meeting of the Council.
The following report of the city
attorney upon the matters which were
referred to him at the last meeting of
the council, will be presented to that
body tomorrow:
To the Honorable City Council
of Los Angeles,
Gentlemen: I have prepared and
present herewith ordinances for the
opening of Flower street, Vignes street
and Kohler street, as per instructions.
I present herewith an ordinance
authorizing property owners to con
struct a sewer on portions -of Hope and
Third streets.
Also an ordinance giving the tax and
license collector seven deputies during
the month of October.
In the matter of the petition of J. H.
Cordyce, I would advise that the city
engineer be instructed to provide the
street superintendent with a map show
ing the lines of Yale and Adobe streets,
and the lines of any excavations made
in said streets by E. Bouton and his
lessees, or any other person; and that
after procuring said maps, said
street superintendent at once compel
said Bouton or such other persons as
may have excavated in said street to re
fill" said streets, to grade and put the
same in as good and perfect condition
as they were before said excavations
were made. Regarding the parcel of
land mentioned in said petition, as hav
ing been appropriated by private per
sons, and being the property of the city
of Los Angeles, if your honorable body
considers it advisable to authorize the
making of an abstract of said lot I will
carefully examine the abstract and de
termine whether or not the city has any
interest in said land.
I have notified Joseph Scheerer, the
contractor who laid the pavement on
Main street between First and Third
streets, to repair the same at once, or
Eroceedings will be commenced upon his
ond.
In the matter of prohibiting the Elec
tric railway company from laying their
track on Los Angeles street, until they
should have reimbursed the property
owners the amount paid for paving Los
Angeles street between the tracks of
said company, and for two feet on each
side thereof; I have advised with the
street superintendent, and with Mr.
Manspeaker,representing said company,
and am informed by Mr. Manspeaker
that'his company will pay the claims of
all property owners for a rebate of such
amount of said paving as comes between
their tracks and for two feet each side
thereof, immediately upon the return of
Mr. D. McFarland, which he is informed
will be today, said claims to be based on
measurements made by Mr. Scheerer,
who originally laid said pavement.
Respectfully submitted.
Charles McFarland,
City Attorney.
COURT NOTES.
Little Legal Incidents Which Occurred
Yesterday.
Nina J. Avers, whose husband Mark
Ayers deserted her two years ago, was
yesterday granted a divorce from him
by Judge Wade.
Wm. Jefferson was ordered discharged
from custody yesterday by Judge
Cheney. He had been held to answer
for the embezzlement of a horse and
buggy two weeks ago, while intoxicated.
The district attorney thought that there
was not enough evidence to convict the
man and the case was dismissed.
TUFFREE'S SUIT.
A Motion for a Non-Suit Denied by
Judge Van Dyke.
Even as the celebrated case of Jarn
dvce ys. Jarndyce in Bleak House, that
other remarkable suit ol Tuffree vs.
Brock, is progressing slowly before
Judge Van Dyke in department four of
the superior court. Yesterday after
noon the plaintiff rested and a motion
for a non-suit was argued. Is was de
nied, and the defendant, tomorrow, will
introduce testimony to show that Tuf
free is not entitled to the 700 acres com
prising Timm's point.
PRACTICAL TESTS.
AM Astonishing Offer—Some of the Be*
pile*.
The San Francisco papers of recent date aon
talned the following offer:—
"As an evidence ol the ability of Joy's lege
table Sarsaparilla to prevent sick headache), we
Will give to the first twelve responsible poison*
who will apply at OHr office a bottle free if they
will agree that after their headaches have been
enred that they will admit the fact over their
signatures."
This offer so startllngly asserted the efficiency
of the remedy that many accepted, and the let
ters of the parties, nearly all of whom responded,
are probably the most convincing attestations
that any remedy ever received. The following
is a sample of those received: —
I have been subject to billons headacha and
constipation for several years past; In (act,have
been compelled to take a physio everyjother
night or else I would have a headache an* dull,
mean feeling. I have taken that bottle of Joy's
Vegetable Sarsaparilla, and have derived great
benefit tram it. and Intend continuing it f After
my own experience I can heartily adriaj thos*
troubled with biliousness and constipation to
trytt. OUI %HAB. *, ktjoHOtW
IX Loous* Avenue, Baa lr<ncisoo.
FRANK, GRIT * CO.
Grand Opening
OF A
NEW > DRY > GOODS > STORE.
SPRn^x^CTvco^"o^
The residents of Los Angeles and vicinity are respectfully invited to attend our Grand
Opening on
Tomorrow, Oct. 13, '90
As we will then have on exhibition the largest, choicest and most complete stock of
DRY GOODS over shown by any house [at its inauguration] in the State of California.
This Immense Stock will comprise all the latest styles and novelties in
Silks, Velvets, Black and Colored Dress Goods,
Laces, Gloves, Hosiery, Ladies' and Child
ren's Muslin and Merino Under
wear, Corsets, Linens,
Flannels, Blankets
And the countless other articles that go to make up the Stock of a Metropolitan Dry
Goods House, and which represents, in the aggregate, an actual investment of
— < TWO HUNDRED THOUSAND DOLLARS. t>—
Having the best connections in all the leading European and American centers of
trade, our goods are all purchased direct from the Manufacturers, with few exceptions,
thus doing away with the middleman's profits, and enabling us to place them on sale at
prices that other houses cannot hope to meet. In a word, we embark in the Retail Dry
Goods business of this city with
THE LARGEST STOCK,
THE LATEST STYLES,
THE FINEST GOODS and
THE LOWEST PRICES.
We ask a careful examination of our Immense Stock, and Matchless Values, at the
hands of a critical public, as both goods and prices will bear out our assertions in every
particular.
SPRING ST., COR. OF THIRD, LOS ANGELES.
MERCHANT TAILORS.
SIMPSON'S FINE TAILORING PARLORS,
Los Ancreles Theatre Building, up stairs.
Telephone 284.
TO ORDER.
$3.50
AND UPWARD,
SUITS
TO ORDER
•15.00
AND UPWARD,
GABEL'S,
308 STOCKTON ST.
8ran0h.424 KEARNY St.
345 NORTH MAIN ST.
ST. ELMO HOTEL.
wf
JOE POHEIM
THE TAILOR,
Has Just received an immense stock of Fall and
Winter Woolens and is making Suits to order at
40 percent less than any other Tailor on the
Pacific Coast.
Elegant English Serge and Cheviot
Suits, to order, from VMS to 535
Fine Dress English Worsted
Suits, to order, from »30 to »40
(Cost elsewhere from $55 to $75)
Fine French Beaver and Pique
Suits, to order, from *35 to »45
(Cost elsewhere $60.00 to $90.00).
French Cassimere
Suits, to order, from »35 to 545
Overcoats, fine Silk Linings,
from •»» to S4O
And other garments in proportion. Perfect fit
and best of workmanship guaranteed or no sale.
Rules of self-measurement and samples of cloth
Bent free to any address, or application to
JOE POHEIM, The Tailor,
ill and m S. Spring Street,
LOS ANGELES.
PRICES TO SUIT THE TIMES.
No. 6 Bertha (a 5-hole) Ranee * 9.00
No. 7 Bertha (a 5-hole i Range 10.00
No. 8 Bertha (a 5-holel Range 13.00
I am overetockedTwith Gasoline Stoves and am
selling them at
$4 Less Than Eastern Prioes.
EVERY STOVE GUARANTEED 1
A fine lino of Dry Air Refrigerators at very tow
prices. A full line of Medallion Ranges.
Stoves sold on the installment plan at]
. F. E. BROWNE'S
mia-tf 136 8. Main St., opp. MoU Market
Wm k PACKARD,
"Is it true that you sell best quality Lily Hams for
best Lily Hams, 14)$c a pound; best Rex
[ W r 'S l, t, I shall buy my Hams of you in the
[ ByM Z-_JB future. I have been paying 16c for Lilys where I deal."
341 and 343 S. Spring St., bet. 4th and sth.
BARTLETT'S
JEWELRY « MIC HOUSE
Has Removed to
129 N. SPRING ST.
NEXT DOOR TO PEOPLES' STORE
glkW" SOUTH FIELD WELLINGTON JgM
L.UMP&-
WHOLESALE ti MTAU.
The Best Domestic Coal In the Market.
Oak, Pine and Juniper wood sawed and split to Order.
HANCOCK BANNING,
Importer of S. F. Wellington and Foreign Steam Coal,
YARD, 838 N. Main St. Telephone 1047. m29-tf OFFICE, 130 W. Second St Telephone 3
S. H. BOTTERFIELD, A^l°Sil er
315 S. Spring Street. TEMPLE BLOCK GAXLERTf
1 CABINETS, 98 PER DOZEN.

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