I concur in the conclusion of my associate, Judge Matthews.
It is stated in the second paragraph of the syllabus in the case of City of Barberton v. Miksch, 128 Ohio St. 169,190 N.E. 387:
"In the construction and maintenance of a system for supplying water to its inhabitants, a municipality acts in a proprietary capacity." See, also, City of Salem v. Harding, 121 Ohio St. 412,417, 169 N.E. 457.
I consider certain statements made in the opinion of my associate to be in conflict with those authorities.
In Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144,148, 198 N.E. 41, 101 A.L.R., 426, where the Barberton case is cited with approval, it is stated:
"This court held, in the first paragraph of the syllabus inState, ex rel. White, v. City of Cleveland, 125 Ohio St. 230,181 N.E. 24, 86 A.L.R., 1172:
"`A municipality, in so far as it acts in a proprietary capacity, possesses the same rights and powers and is subject to the same restrictions and regulations as other like proprietors.'"
In Western Reserve Steel Co. v. Village of Cuyahoga *Page 79 Heights, 118 Ohio St. 544, 552, 161 N.E. 920, it is stated:
"At the same time, because of its having entered the field of public utilities, there devolved upon the city of Cleveland certain duties toward the public of the territory it had undertaken to serve that were cast upon it, not by the contract, but because of the contract, among which was the duty to serve the utility to the public of the designated territory without discrimination, from the performance of which duty it could not absolve itself except by contract with the person to whom it owed the duty."
Many authorities are cited in support of that statement. The principle is incorporated in the syllabus quoted in the opinion of my associate.
The city of Cincinnati having seen fit in its proprietary capacity to assume to furnish water to some residents in Sewer District No. 1, Hamilton county, is subject to the same restrictions against discrimination as would apply to any public utility assuming a similar service.
Under such circumstances, therefore, those residents of Sewer District No. 1, who are refused a service granted to other residents, may have the benefit of a writ of mandamus, through which such discrimination may be eliminated.