APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Ben C. Hill, City Attorney, for Appellant.
Mr. Milton M. Cohan, for Appellees.
[39 Ariz. 169] McALISTER, C. J.
In this action, certain residents of Menlo Park subdivision, adjacent to the city of Tucson, sought to recover from the latter amounts they had been required to pay for domestic water in excess of the sums paid by those living within the corporate limits of the city, and from a judgment in their favor the city appeals.
[39 Ariz. 170] The Pima Realty Company, it appears from the record, owned Menlo Park subdivision, a tract of land just outside the western boundary of the city of Tucson which had been divided into lots and blocks and whose streets and alleys had been dedicated to the public. In 1914 the company desired to install in the streets and alleys of this subdivision a water distributing system for the benefit of it and those residing thereon, and to carry out this purpose it proposed to the city that it be allowed to purchase water therefrom. These negotiations resulted in a contract between it and the city of Tucson in June of that year by which the latter agreed to extend the necessary water-main to its western boundary line and permit the company to connect its water distributing system therewith at that point and thereafter to receive water from the city under the conditions set forth therein. By the terms of this agreement the company was to pass under the control and management of the city as soon as the water was turned into it and thenceforth was to remain under such control as fully as though it belonged to the city. The contract provided further that "the said system shall be under and subject to the same rules and regulations
as now or hereafter prescribed for the city's water system and consumers of water therefrom and the same rates for water shall be charged and received."
Pursuant to this agreement the city furnished water to this subdivision up to March, 1926, when by ordinance it required the residents thereof to pay a water charge fifty per cent. in excess of that the residents of the city were compelled to pay and has since that time collected this excess charge. Plaintiffs allege that neither they nor the original parties to the contract consented to this change in the agreement, [39 Ariz. 171] that the excess charge is unlawful and that they paid it under protest. They asked for an accounting of the excess amounts they had paid the city for water, that they have judgment against the city for such amounts and that it be restrained from collecting them in the future.
The answer was a general denial and following a hearing the court rendered judgment that the city make an accounting of the excess water charges collected by it from the plaintiffs up to May 12, 1927, the date on which Menlo Park subdivision became a part of the city, and that it pay each plaintiff the sum such accounting showed to be due him. It was from this judgment the city appeals.
Several errors are assigned but they raise only two questions, the first of which deals with the meaning of the contract, the contention of appellant being that it is plain and unambiguous in its terms and does not require the city to furnish water to the residents of Menlo Park at the same rates it charges those residing in the city. It was upon this theory that the mayor and city council acted in 1926 when, after deciding that it was necessary to equalize the rates between the consumers inside and those outside the city and that, due to the fact that those living within the corporate limits paid city taxes while those living beyond them did not, an equal footing between these two classes in the matter of rates would be established if the latter were required to pay fifty per cent. more for water than the former, they passed an ordinance to effectuate this result and in it made no exception of the residents of Menlo Park but compelled them along with other outsiders, notwithstanding the contract, to pay the additional fifty per cent.
It is clear to us from the language of the contract that the Pima Realty Company and the city both intended [39 Ariz. 172] that during the life of the agreement the residents of Menlo Park would be charged the same rates for domestic water that consumers in the city were charged. The provision that the distributing "system shall be under and subject to the same rules and regulations as now or hereafter prescribed for the city's water system and consumers of water therefrom and the same rates for water shall be charged and received" could have no other meaning. While it is true, as contended by appellant, that this provision permits a change in the rules and regulations governing the water system as then existing, it does not, as appellant also argues, stop with this idea, but goes further and provides specifically that "the same rates for water shall be charged and received," and this statement, when considered in connection with the admitted purpose of the contract and the language used to express it, is reasonably susceptible of no other construction than that the city could charge the residents of Menlo Park and receive from them the same rates for water it collected from residents of the city and none other. It was not necessary, as appellant contends, that the words, "charged residents of the city," be used after the word, "rates," before this idea is conveyed.
However, to clear up any ambiguity that appellees felt might exist relative to the rates to be charged residents of Menlo Park the court over the objection of appellant permitted one Tom K. Richey, who, when the contract was agreed to as well as for some time before, was counsel for the Pima Realty Company and as such present at several meetings of the city council when the contract was discussed, to testify that it was understood by the parties that "the rates were to be the same as the rates charged its consumers here in the city," and this ruling is assigned as error. As we view it, there is no ambiguity in [39 Ariz. 173] the contract relative to the charges for water and therefore, no occasion for an explanation of its terms, but the admission of the testimony was not prejudicial since it placed upon the agreement a meaning which varied in no degree from that clearly conveyed by its language and, hence, could not have been construed otherwise in the absence of the statement of the witness.
The fact that the agreement recognized the right of the city to change and regulate the rates whenever it saw fit did not, as contended by appellant, authorize it to place appellees on a different rate from that charged those residing within its limits, nor did the fact that the ordinance placed all outside residents in the same class relieve it from the duty of living up to this particular provision of ...