USA > Massachusetts > Middlesex County > Somerville > Report of the city of Somerville 1878 > Part 7
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With this brief statement, we now respectfully ask your attention to a brief consideration of the water contract, between our city and Charlestown, specially referred to this Board by the City Council. We are in entire accord with the sentiment expressed in the inau- gural address of his Honor the Mayor, that " this is the most im- portant issue before us this year." We have ever appreciated its importance, and from the first have regarded it as a question of
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vital interest to our citizens. That we have been faithful in the discharge of the duties which it has devolved upon us, we know : whether our efforts have been in any degree successful is a matter to be determined. Within the two weeks succeeding our first election (1877), a meeting with the presidents of the Chelsea and Everett Water Boards was had for the purpose of concerting measures to secure a modification of the contract.
The whole subject was then new to us, and we, in common with all others. supposed that a modification was the only available mode of relief. During the first year Mayor Belknap and others, at our request, had repeated interviews with the president and other members of the Boston Water Board, and asked for and urged that some equitable modification of the contract might be made. The other Water Boards, co-operating with us, pursued a similar course, and spared no pains to secure the desired result. Our requests and demands were met with fair promises followed by evasions. Our grievances were stated ; the onerous and unjust burdens imposed upon us, under their construction of the contract, were explained ; the equity and justice of our claims were urged. The result was the same, - broken promises, and nothing more. On the 6th of November last, the representatives of the different Water Boards met at the office of the Boston Water Board, and a conference was had, the result of which was a promise on the part of the Boston Water Board to make us a proposition within two weeks from that time. This was postponed from time to time, until, after repeated solicitations, a meeting was appointed for that purpose, to be held at their office on the 9th of the present month. On the morning of that day our counsel received a communication from them, indefinitely postponing the meeting. No reasons there- for were assigned, no explanation made. We have never received from the Boston Water Board any proposition for an adjustment, although, for a long time, we had every assurance that such an event was about to transpire. The nearest approach to a propo- sition ever made was in an interview between our counsel and the president of the Boston Water Board, in which the latter stated that his Board had informally considered the matter, and would, he thought, recommend that we be allowed an additional drawback of five and perhaps ten per cent ; but as had been previously stated to the president of this Board, they would not permit Somerville to collect her own water rates, nor would they entertain the idea of a new contract.
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The allowance of ten per cent upon our water rates would give Somerville about $5,000 and Boston more than twice that amount, - an arrangement, as will be seen more fully hereafter, by no means conducive to the interests of Somerville. It certainly would have been injudicious for us to make a proposition to Boston, under such circumstances, and we never have done so. We have never made any proposition, informal or official, based upon meter rates or otherwise, and never intended so to do until we had received one from the Water Board of Boston.
It was for a long time supposed that the power to dictate terms rested with Boston : we now affirm, without any misgivings, that Somerville has not only the right, but the power, under the contract, to compel Boston to submit the question of compensation for our water supply, and all matters therewith connected, to the arbitra- ment of three disinterested persons. It remains for Somerville alone to determine whether she will longer submit to the dictation and temporizing policy of her sister city. On the 23d of July, 1878, the following order was passed by the Board of Aldermen of Somerville, and on the 24th of the same month was passed in concurrence, by the Common Council.
" Ordered, That the contract of September 21st, 1868, with Charlestown, for supplying Somerville with water, be referred to the Water Board, with authority to take such measures as they may deem expedient to secure an equitable adjustment or reform of said contract."
In pursuance of the authority thus given, the Board instructed the president to employ counsel, and take in charge the matter thus committed to them.
The president at once entered upon his duties, counsel was employed, and the matter placed in his hands, with instructions to report as early as practicable upon the expediency of applying to the courts for an adjudication as to the validity of the contract.
After a careful examination of the law, and the facts applicable to the case, counsel reported that it was inexpedient to litigate the matter in the courts, as Somerville had a better remedy under the provisions of the contract itself. We deem it, gentlemen, incum- bent upon us, at the present time, both in justice to ourselves, and to you, as the representatives of the tax-payers of Somerville, to lay before you, as briefly as we may, the conclusions arrived at by us and our reasons therefor.
The circumstances under which the contract was made are, in brief, as follows : Somerville asked of Charlestown the privilege of
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taking water from the Mystic Water Works, for the supply of the city. This was granted, and a contract entered into by which Charlestown was to appropriate the greater portion of the water rates of Somerville, until the indebetedness incurred by Charlestown for the construction of the water works should be extinguished.
The first question to be considered is, What "Water Works " are here contemplated? Do they include the works of distribution and service in the city of Charlestown? Do they include those also of any other towns and cities which Charlestown might construct in connection with the main works? If they include one, they include all. Did either of the parties to the contract so under- stand it? We answer emphatically, No. The contemporaneous circumstances, the statements of the parties, at the time and since, and the injustice and wrong which must inevitably result from any other interpretation, are conclusive proof of the truth of the answer.
The contracting board, on the part of Somerville, consisted of gentlemen of intelligence and sagacity, who had the interests of Somerville in charge, and it is illiberal and unjust to impute to them an intent reconcilable only with lack of intelligence or breach of faith.
The law construes contracts reasonably. It recognizes no forced or unnatural construction ; and if the term "Water Works" is susceptible of two interpretations, the one will be adopted most in accordance with justice and equity. Charters for water supplies are not granted for speculative purposes. They are purely sani- tary measures, enacted for the purpose of supplying the people with pure water at the lowest rates. The charters themselves pro- vide for the protection of other parties. In some instances the terms of compensation are defined, and in all cases equity is the governing principle.
Under the provisions of her charter, Charlestown might lay and maintain the distribution and service pipes in Somerville, in which case she was forbidden charging the inhabitants of Somerville more for water rates than she did the inhabitants of her own city. Charlestown having constructed her main water works could, with great propriety, demand that Somerville or any other city, desiring their use, should contribute equitably towards the payment of the indebtedness incurred therefor, and we respectfully submit that the ' Water Works " thus referred to will admit of but one meaning. That they mean, simply and only, the main works, -the works
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used in common by the parties, the works alone in which Somer- ville could have any interest, and the works from which other towns and cities draw in common their supplies.
Having thus briefly considered what the " Water Works " re- ferred to in the contract are, we ask your attention to the question of compensation for our water supply.
As we have before suggested, it is the policy of the law in this Commonwealth that, as far as practicable, pure water should be within the reach of all ; and it is not in accordance with its spirit to permit a corporation whose main works run through a sparsely settled district, to charge exorbitantly for its water supply, and prices must not be excessive or prohibitory, but just and equitable under all the circumstances of the case. Sparsely settled towns and cities cannot afford to pay the same prices for their water supply as more densely populated cities, for the reason that their distribution works must of necessity be more expensive in proportion to the amount of rates received. Somerville, with her forty-five miles of distribution pipes, realizes less than one half the amount from her water rates that Charlestown realizes with her twenty-nine miles.
Again, Somerville should not pay the same pro rata prices for her supply, as Charlestown, for the reason that Charlestown has advantages connected with her supply that Somerville has not. In case of scarcity of water, Charlestown must be first supplied, - Somerville must wait until it rains ; Charlestown has the power to construct the main works in such manner as to be most conducive to her convenience and interest. If Boston wants a new force main, for the accommodation of her East Boston citizens, it is con- structed, and Somerville must contribute to the payment thereof. If the times are hard, and a $100,000 sewer is to be built, the city council of Boston passes an order that none but her own citizens shall be employed upon the works, although Somerville must help pay for it. Taking into account the extra privilege merely, which Charlestown enjoys, it would seem but reasonable that she should contribute more liberally for her supplies than others less favored. In support of our views upon this point, we cite the analogous case of Salem and Beverly, determined in 1876, by commissioners appointed by the Supreme Court. The commission consisted of gentlemen eminent in the law, of high standing, and qualified in every respect for the position. Salem had constructed water works in connection with Wenham Pond. Beverly desired the use of those works for her own supply. The only question in contro-
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versy was that of compensation. To state the case briefly, Salem proposed that Beverly should pay as compensation the actual cost of pumping the water used by Beverly and also pay such propor- tion of the interest, at six per cent, upon the cost of the works used in common by the parties as the water rates of Beverly were to those of Salem. This principle of determining the compensation was adopted by the commission, and an award in accordance with it was made by the commissisners and is now in force. It will be perceived that, in this case, no part of the expense of maintenance was laid upon Beverly. No allowance was made for interest upon expenditures while the works were in process of construction. No allowance was made for furnishing capital, for loss of head of water, or for depreciation and wear and tear. The rule here laid down is simple and at once commends itself to our minds as just and equitable ; we shall therefore adopt it, in determining the rate of compensation which Somerville should pay for her water supply.
Having decided upon the question as to what the "Water Works " referred to in the contract are, aud the rule of compensa- tion for the water supply, we will next consider what portion of the water rates should be appropriated by Charlestown to the extin- guishment of the debt for construction.
We submit that Charlestown, after deducting from the water rates in her hands a reasonable sum as compensation for the water supply, should appropriate the remainder to the extinguishment of the debt. We cannot conceive that a compliance with the contract, under its most liberal construction, will admit of any other possi- ble course. In fact, the justness of this propositon we regard as too self-evident for comment.
This rule or method, however, to be just, must be uniform, and must apply to all parties using the works in common. Charles- town must deduct only a pro rata sum from her water rates, and appropriate the balance in the same manner. What is fair for Somerville is fair for Charlestown. If, by reason of superior privi- leges, the water supply of Charlestown is of more value than that of Somerville, and costs more, as it should, it is but equitable that the excess of cost should be borne by Charlestown alone ; other- wise Somerville will contribute more for her supply in proportion to the water rates than Charlestown. To illustrate, suppose the water rates of Somerville and Charlestown are equal in amount, and 20 per cent is deducted from Somerville's water rates for her supply, and 30 per cent from Charlestown as the cost of her supply,
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it will be seen that Somerville contributes 80 per cent, and Charles- town only 70 per cent of their respective water rates towards the extinguishment of the debt of construction. 'Each party should contribute in the proportion that its water rates are to the aggre- gate rates of all parties using the works in common.
If the whole cost of pumping, and the interest upon the cost of the " Water Works " accruing while used by the parties, are deducted from the total amount of water rates minus the drawbacks, the remainder will be the exact amount to be appropriated to the extinguishment of the debt for construction, in which case each party will pay for its own supply, and contribute its proportionate share towards the payment of said debt. The law presumes that Charlestown has appropriated the water rates, in accordance with the true intent and meaning of the contract, and no compli- . cated method of keeping accounts will avail to the contrary. By the provisions of the contract, Somerville and the parties having simi- lar contracts are entitled to certain drawbacks for the water rates collected by Charlestown to defray their expenses of distribution. The method of determining the drawbacks is so ingeniously devised, that when applied to Charlestown she receives within a fraction fifty per cent more, from the same amount of water rates, than Somerville and Chelsea combined.
In our statement of accounts between Somerville and Charles- town, we propose, to save any question, to allow Charlestown the full amount of drawbacks, according to the letter of the contract. These amount in the aggregate to the sum of $293,288.28, more than four times the amount received by Somerville.
We now solicit your attention to the Construction Account.
The books of the Charlestown and Boston Water Boards have been so kept that it is morally impossible for any person, upon an inspection of their accounts, to determine accurately the cost of the main works. The difficulty arises from the fact that the accounts of the main and city works are intermingled and confused. It would require a tribunal with authority to examine parties and papers to determine with precision the facts.
We have carefully examined the accounts as submitted in their reports, and collated the various items therein set forth, and as the result of our examination we now state unhesitatingly that the sum of $1,000,000 is in excess of the entire cost of the construction of the Water Works, prior to May 1, 1878.
9
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We find in their report for 1871 their construction account stated, and as they term it classified.
This account, which includes the cost of the " new lines supply main," fixes the whole cost of construction up to Jan. 1, 1872, at the sum of $1,356,175.15. This includes the entire cost of the " Water Works," Charlestown city distribution and service works, and a portion of the distribution and other works of Somerville, Medford, and Chelsea. We shall therefore, in our computation of the accounts, adopt the liberal estimate of $1,000,000 as the cost of the " Water Works " up to May 1, 1878, the close of their last fiscal year. We cannot with our present facilities determine, except by a general estimate, the relative standing of the parties on the first day of January, 1869, three months and nine days after making the contract.
The accounts are made up for the entire year, and as nearly as we can determine upon a general average, we are of the opinion that the relative standing of the parties was about the same, there being no appreciable difference either way.
We shall, therefore, make Jan. 1, 1869, our starting point, and reckon therefrom.
The process of computation, as already foreshadowed, is as follows : -
We deduct from the aggregate amount of receipts from water rates each year,
First. - The drawback to be allowed Charlestown according to the formula set forth in the contract.
Second. - The amount of compensation for the entire supply to parties using the " Water Works" in common. The remainder we apply each year to the extinguishment of the debt for construc- tion.
By the yearly application of this process, it will be perceived that as the debt is reduced, in the same proportion the interest is reduced, and as the payment of interest constitutes a part of the compensation, that also must be correspondingly reduced. It certainly would not be accepted as sound doctrine to require us to pay for the use of the works after we had paid our proportional part of their cost.
We deem it unnecessary in this report to enumerate in detail the amounts of compensation for the water supply during the period referred to. We give to you the result of our computation, and we find that the compensation for the entire supply of water, to all
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parties, from Jan. 1, 1869, to May 1, 1878, amounts to the sum of $649,864.82.
The receipts from water rates, from Jan. 1, 1869, to May 1, 1878, inclusive, are as follows : -
From Charlestown, gross
$970,317 07
66 E. Boston, net
426,946 79
6 Chelsea, .
326,991 16
66 Somerville, 66 264,004 46
Everett, 66
27,212 65
$2,015,472 13
The account fully stated is as follows : -
MYSTIC WATER BOARD).
Dr.
To receipts from water rates $2,015,472 13
Cr.
By cost of construction . $1,000,000 00
" compensation for water sup- ply . 649,864 82
" paid to Charlestown as draw- backs 293,288 28
1,943,153 10
Surplus on hand and unappropriated .
$72,319 03
This statement, which we do not pretend is exact, as it is made up in part by estimate, is sufficiently liberal towards Boston, the party in interest, to warrant the assertion that the indebtedness con- templated in the contract has been extinguished, and that we are, if unable to agree upon the terms for a future water supply, entitled to the arbitration of commissioners. We want no modification of the contract : we want the collection of our own water rates ; we want the compensation for our future water supply determined and the status of Somerville in this matter fixed. When these events tran- spire, our works will be self-sustaining and a surplus also afforded for a sinking fund. The Mystic Water Works, up to the date of our contract, were never self-sustaining ; and the Boston Water
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Board now modestly asks us and " the adjacent towns " to pay the deficit thereby occasioned. They ask us to pay the interest upon the cost of their main works, for a period of six years prior to our connection with them. They ask us to pay the cost of Charles- town's distribution and service works and their maintenance, and fourteen years' interest upon the whole. They ask us to pay all their water debt, principal and interest, and in the mean time to let the debt incurred for the construction and maintenance of our own works accumulate, and they very courteously inform us that, after they have perfected the distribution, and furnished every sink, bath- room, and water-closet in the Charlestown District with service pipe, and all paid for from the common fund, they will then inform us upon what terms they will furnish our future water supply. The Boston Water Board affect to believe that the contract enjoins such absurd obligations upon us. If they do in truth entertain such an idea, we beg leave to say that the submission of the matter to a commission of three disinterested men will quickly dispel the illu- sion. During the present fiscal year a sewer in connection with the works has been constructed, at a cost, as we are informed, of $103,000, and a new force main has been built at a cost of $28,600, both of which, we have no doubt, should be charged to construction. Assuming that the receipts of the present year are the same as those of the last, viz., $270,000, the cost in- curred for these works is already paid and a balance of the present year's receipts unappropriated. In the contract is this provision, " that if any arrangement shall hereafter be made for a supply of water to any town or city, upon terms deemed more favorable to them, the town of Somerville shall be entitled to be placed upon equal footing."
We have procured from the Middlesex Registry of Deeds a copy of an agreement, dated Oct. 1, 1869, between Charlestown and Boston, for the water supply of East Boston, in which it is agreed that Boston may collect her own water rates, and receive therefor, from the rates collected, the annual sum of $2,500, which privilege she has enjoyed for a period of eight years. It would be a great convenience to the citizens of Somerville to pay their water rates at home, and the present mode of collections has ever been re- garded as a grievance. The refusal to permit Somerville to collect her own rates, and allow her a sum therefor corresponding with that of Boston, is clearly a violation of the contract. It will not
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be expected that in a report of this kind we should present all the facts and considerations bearing upon the subject matter of the contract. The views and reasons therefor, which we have here- with submitted, will, we believe, satisfy you of the correctness of our position, and also as to the course to be pursued in the future. We have procured and examined the reports of every Water Board in this State, and many in other States. We have availed ourselves of every source of information within our reach, and if the result of our efforts shall prove of advantage to the city we shall be sat- isfied.
This matter of the contract has rendered our labors, especially during the last six months, unusually arduous, but we beg leave to say that our services, although gratuitous, have been fully and cheerfully rendered.
The president, in retiring from the Water Board. begs leave to tender to the City Council his thanks for the courtesy and consid- eration he has ever received at their hands.
All of which is respectfully submitted
C. G. ROWELL. EDWIN S. CONANT. A. R. COOLIDGE. EDWARD FOOTE. JOSEPH A CHABUT.
SUPERINTENDENT'S REPORT.
-
To the Somerville Mystic Water Board :
GENTLEMEN, - The Annual Report of the Superintendent of the Somerville Mystic Water Works is respectfully submitted, compris- ing a statement of all work performed under my direction from Dec. 31, 1877, to Dec. 31, 1878.
Accompanying this report will be found an inventory of the stock, furniture, and tools belonging to the Water Works.
WATER PIPE LAID, GATES AND HYDRANTS SET IN 1878.
PIPE LAID.
GATES SET.
LOCATION.
8-in.
6-in.
4-in.
3-in.
2%-in.
8-in. 6-in. 3-in.
21%-in.
*John P. Squire & Co.
440
980
.
.
1
3
·
Newton Street
6
.
.
Emerson Street
18
1
.
.
Fountain Avenue
30
1
. ·
Villa Avenue
18
1
. .
Fremont Street
270
.
.
.
.
Totals
440
986
48
18
270
1
3
3
2
3
DISTRIBUTING MAINS.
The distributing mains have been extended during the year 1,762 feet. For the better protection of Squire's pork-packing establish- ment, at their request, 440 feet of eight-inch and 980 feet of six- inch pipe were made and laid from the eight-inch dead end on Medford Street near the Cambridge line, to the six-inch main in Somerville Avenue, near the Fitchburg Railroad crossing. Two hun- dred feet of the above six-inch pipe were used in connecting their large reservoir with the Somerville Avenue main. One six-inch gate
* Cost of manufacture and laying paid by John P. Squire & Co.
co | Hydrants Set.
·
.
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was set in Somerville Avenue upon the pipe leading to the res- ervoir, one six-inch gate upon this pipe at the reservoir ; also one six-inch gate in Somerville Avenue upon the new connecting main, and one eight-inch gate in Medford Street upon the new main. Three large Holyoke hydrants were set in the yard and connected with this main. The expense of this connection, which amounted to $1,725.85, was paid by John P. Squires & Co.
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