[237 U.S. 33, 34] Mr. Charles Louque for plaintiffs in error.
[237 U.S. 33, 35] Messrs. Walter L. Gleason and Isaiah D. Moore for defendant in error.
Memorandum opinion by direction of the court. By Mr. Justice Holmes:
This is a petition to have an act of the Louisiana legislature (1908, No. 270) and ordinances of the respondent board declared unconstitutional as impairing the obligation of a contract between the property taxpayers and the city of New Orleans. The statute makes it the duty of the board to require all inhabited premises in the city to be connected with the mains of the public water system 'and to take therefrom at least such water supply as shall be used on said premises for drinking and domestic purposes, exclusive of sewerage, at rates to be fixed.' The contract supposed is that the water for drinking and domestic purposes should be free. The constitution of the state, art. 232, forbids taxation above a limit, which has been reached, except for permanent public improvements by vote of the property taxpayers in the place concerned. In this case the taxpayers petitioned the city to levy a special tax of 2 mills per annum for forty-three years for the acquisition of a system of waterworks and purification of the water, and for the construction 'of a free sewerage system, with free water therefor.' The proposition was adopted by special election, ordinance, statute, and con- [237 U.S. 33, 37] stitutional amendment, and this adoption is relied upon as making a contract to the above effect. Under the rules of the board, 1,000 gallons per quarter are allowed free, for flushing closets, but rates are fixed and charged for water otherwise used. These charges were held to be consistent with the actual contract, if any, by the supreme court of the state.
The argument for the plaintiffs in error is that as all water that goes into the sewers is sewerage after it gets there, the arrangement required that all such water should be free. But the character of the water that is to be free is determined before it reaches the sewer. It is water 'therefor,'-that is, for a free sewerage system; or, in other words, water that is discharged into the sewers for the purpose of insuring the working of a free sewerage system. According to the finding of the supreme court the allowance for that purpose is liberal. The original statute of August 18, 1899, that was ratified by the Constitutional Amendment, itself provided that the board should 'have power to fix the rates to be charged private consumers of water, and to collect the same from all persons who use water (except for sewerage purposes only) from the public water supply of the city of New Orleans,' etc. 21. Obviously, drinking or bathing water is not used for sewerage purposes, although it goes into the sewer after it has served its end, whereas water used for flushing closets does go into the sewer for sewerage purposes, simply to make them work. The act of 1908 goes no farther than that of 1899, and there is no ground for invoking the jurisdiction of this court.