On Application for Eehearing.
Monroe, J.The first proposition contained in the brief filed in support of the application for rehearing is, that, “The Court erred in the statement” that the most important books, showing the charges and collections made by the city, have been lost, the defendant, to whom they were delivered with the works, and who had possession “of them for “several years thereafter, being now unable to account for them.” The books thus referred to are those showing the rates charged by the city, for water furnished by measurement,. as contra-distinguished from those showing the “flat” rates charged, to small consumers. It is not denied that they were delivered to the defendant, with the works, nor is it denied that they were in the possession of the defendant for several years thereafter, nor, yet, is it denied that they were called for by the plaintiff for the purposes of the trial of this case in the district court arid that the defendant was unable to produce them. It is said, however, that the court has erred in attributing undue importance to the particular books mentioned, and in intimating, in the statement quoted, and throughout the opinion, that the defendant appears “in the very equivocal position of a spoliator of evidence.”
We avail ourselves of the oportunity to say that it was not the purpose of the opinion handed down, nor is it the present purpose, to charge the defendant, either directly or by implication, with deliberately spoilating or suppressing evidence of any kind. We think, and we shall endeavor to show, more clearly than we have done, that the books in question bear such an important relation to this case, as to furnish, now, almost the sole measure of the obligations of the defendant and *32of the right of the public and of the State in the matter of the charges for water supplied by measurement, and hence, that it was the duty of the defendant to have preserved them in safety and in such a manner as that the State and the public, as parties in interest, could at all times have obtained access to them; but, that the defendant has failed to discharge that duty, and that the loss of the books is attributable to it’s gross negligence, the beginnings of which appear to have been co-incident, in point of time, with it’s determination that it would no longer be governed, in the matter of it’s charges, by the rates which had been paid to the city, and which were recorded in those books; and, for these reasons, that the defendant is not in a position to complain of any reasonable indulgence extended to the plaintiff in it’s effort to establish the contents of the books by secondary evidence.
It was stated by one of the counsel for the defendant, in oral argument before this Corut, that, by referring to the briefs in the cases of Ernst & Co., and Stewart & Rickert vs. N. O. Water Works Co., it would be found that the missing books had been brought up with the appeals in those cases, and had been filed, in the originals, in this court, fifteen years ago; and it was also stated that an unavailing search had been made for them in the clerk’s office; and these statements are reiterated in the brief which we are now considering. It does not appear that any such return was made to the subpoena duces tecum issued for the purposes of the trial in the district court, .or that .the search referred to was instituted at that time; and, as the “ease” of Ernst & Co., with which that of Stewart & Rickert was argued in this court, was admitted in evidence on that trial, over the objection of the counsel for the defendant, who still insist upon their objection, and further insist that nothing Was offered or admitted save the “record,” we should hardly have expected that they would rely, as they are now doing, upon the briefs in that case, as showing that the defendant was able to account for the books which it was unable to produce when called upon, and this more particularly as it was stipulated that the transcript, in the ease of Ernst & Co., on file in this court, should be used for the purpose of the appeal, and it does not appear that the briefs attached thereto were ever called to the attention of the district judge. We have, nevertheless, in response to the invitation of the counsel, examined the briefs in the eases mentioned, as also the transcripts, and, having extended our inquiry to the cases of Levy; Allen & Syme, Louis Ruch; and Warner & Hoelzel, against the defendant, which “cases” or *33“records” were also offered in evidence on behalf of the plaintiff, we find the following state of facts, to-wit:
In the month of October, of the year 1883, that being the second, business, year, dating from April, 1882, of the administration of the waterworks under the defendant’s new president, and of the operation of what that officer reported ás “a proper and reasonable advance “ in the great majority of the assessmentsthe plaintiffs above named instituted suits in which they alleged and complained, that they were engaged in rice milling in New Orleans, and required steam power; that their only means of obtaining water for that purpose was through the works controlled and operated by the defendant, since the defendant was claiming and exercising the exclusive privilege of furnishing the water supply to the inhabitants of New Orleans; that, by law, and by the terms of it’s charter, the defendant was bound to furnish the water required by them at the rates paid to the city upon March 31st, 1877, but, that defendant refused to receive payment at those rates, refused to furnish water unless. much higher rates were paid, and had threatened to harass the plaintiff unless it’s demands were complied with; and, that the plaintiffs feared that it would cut off their water supply entirely unless restrained from so doing, and they prayed for injunctions and for judgments decreeing that they were entitled to water at the rates paid to the city upon March 31st, 1877.
The Levy case was tried and there was judgment for the plaintiff from which the defendant appealed, and lodged its appeal in this court in October, 1885. The other plaintiffs were represented by the same counsel, and, beyond the issuance of the injunctions prayed for by them, further proceedings in their cases appear to have been, in th>? meanwhile, suspended.
Upon the trial of the Levy case, the rates charged by the city, as shown by the books in question, and as charged by the defendant during the four years immediately following it’s acquisition of the works, were established by the testimony of the gentleman, who, during that time, had been the defendant’s president. We make the following excerpt from that testimony: “Did you ascertain in any way the rates that had been charged by the city immediately previous to your taking charge? A. I was guided by that. Q. Hów do you mean? A. The assessment of the previous years. (Objection). Q. Were you informed as to what the assessments of previous years had been? A. I found them in the books. Q. Were the books containing those *34assessments in the possession of the Water Works Company at the time you took charge? A. Yes, sir. Q. You say you were guided by J-hem in making your assessments for the first year? A. Yes, sir. Q. Do you mean by that that you took those assessments ? A. I do, ,Q. And proceeded to collect on that basis? A. I did, that, is, as much as possible. Q. How long- was that course continued? A. Until the time I left there. (Cross-Ex.) Q. Did you leave those bo-oks with the waterworks company at the time you left? A. Yes, sir.”
The transeript of appeal in the case in which this testimony was +f'k°n', and which by agreement of counsel we were to have used (subject to the objections urged) for the purposes of the instant case, cannot be found, and when the original opinion was prepared, not having taken into consideration the sources of information to which we are now referred, we were unable to say whether the books, themselves, had been offered.' In the brief filed on behalf of the defendant in the cases of Ernst & Co. and Stewart & Rickert, however, we find the following statement, to-wit: “At this time,” (i. e. when the Levy case was tried) “ the books in which the water rates of the city were recorded were missing and could not be found. -Since then they have been found and are in evidence in this case, being brought up in the originals, by stipulation.” The cases of Ernst & Co. and Stewart & Rickert were tried in 1886, after the judgment in the Levy ease had-been affirmed on appeal, and there were judgments for plaintiffs, as in the Levy case, which were also affirmed on appeal. So that, in the Levy case, the books in question being missing, the plaintiff obtained judgment upon establishing, by means of the testimony of the defendant’s former president, “the water rates of -the city” recorded therein, and otherwise proving that the amount demanded of him exceeded those rates. And, thereafter, the books being produced and offered on behalf of the defendant, Ernst & Co. and Stewart & Rickert obtained like judgments, before another judge of the district court, and in this Court, upon establishing the same facts, by means of the boolcs, as well as of the relevant testimony which had been given in the Levy case, and which was admitted by consent of the counsel on both sides; following which, as we understand the evidence, like judgments were rendered by the district court in the cases of Allen & Syme, Louis Ruch, and Warner & Hoelzel; and, from these last mentioned judgments no appeals were taken. The transcripts in the cases of Ernst & Co. and Stewart & *35Biekert were lodged in the office of the clerk of this Court in March, 1887, and the judgments appealed from were affirmed in May of the same year. The books in question, brought up in the originals, and not incorporated in the transcripts, were, in all probability, not filed at all. If they were filed tbe records of this court fail to show it.
In any event, after the litigation, for the purposes of which they were deposited in the clerk’s office, had terminated, the defendant, as the owner and depositor, was at liberty to have withdrawn them, and, as no one else had that right, it is not unreasonable to suppose, in the absence of evidence to the contrary, that the books were withdrawn by it, rather than that they should have disappeared by reason of any failure on the part of the clerk properly to discharge his duty as custodian. If they were so withdrawn, and have since been lost by the defendant, as they appear to have been lost during the trial of the levy case, it is not surprising that the search recently-made by counsel no doubt in the utmost good faith, in the clerk’s office, was barren of results. If the defendant did not withdraw the books, after the cases of Ernst & Co. and Stewart & Eickert were decided, it seems to us tha; some explanation should he offered for it’s failure to do so, for this court had, then, three times, decided that .the rates paid to the city, as recorded im, those boohs, were the rates by which the defendant was bound to regulate it’s charges during the many years of its prospective existence, and the information afforded by the books was, therefore, of vital concern in the matter of the discharge by the defendant of it’s obligations under its contract and of the protection of the rights of the state and of the city of New Orleans and its inhabitants, as parties to, and beneficiaries of, that contract, since, as the years pass, it can well be understood that it becomes not only difficult but impossible to obtain that information from any other source. Whether, therefore, the defendant withdrew the books, and lost them, or whether they have been lost by reason of it’s failure to withdraw them, the indisputable fact is, that, having the exclusive control of records affording information by means of which it was bound to regulate it’s charges for water sold by measurement, it has so exercised that control as to dispossess itself of those records and to cut off the parties against whom such charges are to be made from access to that information, and, having done so, it now assumes the right to enforce a tariff of charges established by itself.
It is said that the court erred “in using as evidence in this cause *36the records in the cases of Isaac Levy and of others as against this defendant for the reason that "the using of the records in said cases was objected to as being res inter alios acta and inadmissible in evidence, and admitted over objecton, and to which admission exceptions were noted and reserved; and that the evidence adduced in said causes was neither offered, nor admitted, in evidence on the trial of this case.”
. The consideration, moving to the State, in the contract, the violation and non-fulfillment of which is the cause of action set forth in the petition of the State, was the defendant’s obligation, among others, to furnish the inhabitants of New Orleans with water, at a certain price. The State alleges that the defendant has violated that contract, and the law, by exacting a price for the water furnished by it in excess of that so agreed upon and authorized. It can hardly be denied that the individuals, for whose benefit, and with respect to whose water supply, the State entered into the contract with the defendant, and granted to it the monopoly which it enjoys, are competent witnesses in this case to show that they have been overcharged and that they have complained of the overcharges, and it is admitted, in the argument, now presented on behalf of the defendant, that such individuals had, and have the right to go into court, contradictorily with the defendant, and without making the State a party, for the enforcement of that contract with respect to such overcharges. And, yet, we are told that the fact that those individual beneficiaries have obtained relief by means of judgments, against the defendant, decreeing such violations of the contract sued on to have been committed is irrelevant to the present issue. We do not find it necessary to discuss this proposition.
It is further contended that the offers made by the plaintiffs were of the “records” in the cases mentioned and that such offers did not include the evidence, and hence, that such evidence should not be considered for the purposes of the case now under consideration. It is only necessary to say, in answer to this, that we have not considered the evidence referred to except that of the ex-president of the defendant company, which, it is admitted, was specially offered.
It is said that “the court erred in admitting, or using, the alleged testimony of Edward Toby, alleged to have been given in the case of Isaac Levy vs. New Orleans Water Works Company, which alleged testimony was admitted over defendant’s objection and a bill of exceptions reserved to the admission of the same, and this court also erred as to the weight and effect to be given to said testimony, if admitted.”
*37In support of this criticism, it is contended that the typewritten document, purporting to contain testimony given by Mr. Toby (who is defendant’s ex-president), in the Levy case, and offered as such, was not sufficiently identified, and this finds some support in the fact. But the Levy “case” and the “cases” of Ernst & Co. and of Stewart & Sickert were also offered, with the stipulation that the transcripts, in this court, should be used; and, whilst the transcript, in the Levy case is missing, we find, in the trasncripts in the other two cases, the testimony of Mr. Toby, given in the Levy case, offered and admitted, by agreement ; and, in the brief filed by the defendant’s counsel, in the two last mentioned cases, to which brief we have been especially referred for the purposes of the present application, that testimony is reproduced and made the subject of criticism. It can hardly be said, therefore, to lack identification. But, it is said, the testimony was not admissible, per se, and the typewritten instrument would have been admissible “only as a memorandum, made by a third person, and recognized by the witness as constituting a correct repository of facts, which he, many years ago, knew to be true, and which facts were perpetuated in the document in question,” therefore, as Mr. Toby was unable either to'recognize the instrument or to remember the facts which it purported to perpetuate, the testimony should not have been admitted. Sir J. Stephens, in his “Digest of the Law of Evidence,” states the common law rule applicable to the question to be, that “Evidence given by a witness in a previous action is relevant for the pujóse of proving the matters,in a subsequent- proceeding, or in a later stage of the same proceeding, when the witness is dead, or insane, or so ill .that he will probably never be able to travel, or is kept out of the way by the adverse party, or, in civil, but not, it seems, in criminal, cases, is out of the jurisdiction of the court, or, perhaps, in civil, but not in criminal, cases, when he cannot be found; provided in all cases: (1) That the party against whom the evidence' is to be given had the right and opportunity to cross-examine the declarant, when he was examined as a witness: (2) That the questions in issue were, substantially, the same in the first as in the second proceeding: (3) That the proceedings, if eivil. were between the same parties, or their representatives in interest. (4) That, in criminal eases, the same person is accused upon the same facts.” Stephens Dig. Art. 32.
There is no doubt that the defendant in the instant case -had the right, and the opportunity, to cross-examine the declarant when the was *38examined as a witness, and that it availed itself thereof The questions at issue in the Levy case were, whether the defendant was charging more for water furnished in quantities than had been paid to the city, and whether, in so doing, it was violating the law of it’s existence and of the state; and it was upon those identical issues that this case has been decided. It is conceded in the present argument that Levy and the other rice millers had the right to bring their suits on the identical contract, made, in their behalf, by the State, upon which the State, itself, brings the present suit. It is said, however, that the witness was neither dead, nor insane, nor sick, nor inaccessible, but, when put on the stand, was unable to identify the document purporting to contain his former testimony, which had not been written by him, or to remember the fafcts therein staked. Mr. Chase, in his edition of Stephens’ Digest, says: “There are three cases of refreshing memory: (1) When the witness, by referring to the writing, is enabled to recollect the facts, and can testify, in reality, from memory: (2) When the witness, after referring to the writing, does not recollect the facts and yet remembers that he made or saw the writing when the facts, were fresh in his mind and that it then stated the facts correctly: (3) When the witness, after referring to the writing, neither recollects the facts, nor remembers having seen it before, and yet, from seeing his handwriting therein (as in signature, contents, or both), is enabled to testify to its genuineness and correctness.
Chase’s Stephens’ Dig. Arts. 136, 341-2, notes.
But the reason upon which they are founded is somewhat broader than the rules as thus stated by the text writers, and the courts have not hesitated to appeal to the former when the latter have been found too narrow for the ease to be decided. Thus, what matters it whether the witness, who is unable to remember the facts testified to on the former trial, identifies the instrument in which his testimony is preserved, or whether the genuineness of such instrument is established by the admission of the person against whom it is offered, or in- some other satisfactory way, so long as the witness is able to say that the testimony as given was true ? Mr. Toby could not have been expected to identify a typewritten instrument which he had never before seen, but he could testify, and he did testify in substance, that, if the testimony contained in the instrument exhibited to him was that given by him'in the Levy case, it was true and he stood by it, though, by reason of the lapse of time (fifteen years) and his age, he was no longer able *39to remember the facts testified to. And that it was the testimony so given by him in the Levy case is abundantly shown by the admissions and evidence to which we have already referred.
“Where a witness has given his deposition, and, afterwards, upon being called to the stand to testify, his memory of the transaction fails, his deposition may be read in evidence by the party calling him.” Jact? vs. Woods, 29, Pa. St. 325.
In Lawson vs. Jones 61 How. Pr. 424, the question was, whether a party who had been examined on the first trial and was rendered incompetent by the death of his adversary before the second trial could have his testimony, given on the former trial, read at any subsequent trial, and Judge Daly (of the Court of Common Pleas of N. Y., the entire bench concurring) held, that “There is no substantial reason why the testimony in such trial should not be read. The party was on the stand, and could have been cross- examined, and the same opportunity for scrutiny and for contradiction existed as if the jury had agreed upon a verdict. The objection, taken upon appeal, that the testimony cannot be read by the stenographer, who took it down on the former trial, from his notes, but must be produced in the form.of depositions, reduced to writing and subscribed by the party, is not good. Such a rule would exclude all testimony taken in the manner authorized by law, and render the Code inoperative.” Eice on Ev. Yol. 1, pp. 395-6.
We might say the same thing in this case, since the testimony of witnesses in civil eases is taken in most, if not in all, of the district courts of this state by stenographers, and is not signed by the witnesses. And this practice is recognized in other jurisdictions, where the rule referred to by Judge Daly, predicated upon the practice which had obtained before courts and litigants had begun to avail themselves of the services of stenographers has been disregarded. Thus, Mr. Bradner says: “A transcript made by an official stenographer and duly certified by him to be a verbatim transcript of his notes of the evidence given upon a former trial is admissible.” (Citing, Bridgman vs. Carey, 62 Vt. 1; Com. vs. McCarthy, 152 Mass. 577; Com. vs. Doughty, 139 Pa. St. 383; Stege vs. State 127 Ind. 15; State vs. Byers 16 Mont. 565).
Bradner on Ev. 477, (and notes).
It is further suggested that the court erred in the matter of the weight and effect to which the testimony of Mr. Toby is entitled, and we *40are invited to consult the brief filed by the defendant’s counsel in the “Edwards’ record as showing the contents of the missing books, excerpted in rebuttal of that testimony. This is probably a typographical error, and we assume that the counsel is referring us to the brief •in the case of “Ernst & Co.,” in which we find excerpts such as those indicated. But this court had before it at that time not only the excerpts made by the defendant’s counsel, and other excerpts made by the counsel for the plaintiff, but it had the books themselves, as also the testimony of Mr. Toby, and it, nevertheless, reached the same conclusion as had been reached in the Levy case, the judgment in which was predicated upon the testimony of Mr. Toby, without books or excerpts. We find nothing in the case as now presented, therefore, to justify us in holding that we, or our predecessors, have committed the error suggested.
It is said that “the court erred in multiplying by ten (through a clerical error) the average amounts realized by the defendant from the sale of water by it pumped from the Mississippi river and distributed through its mains to the people of the city of New Orleans, which clerical error is vitally important, because, apparently, showing a revenue derived by defendant from it’s sales of water ten times greater, in the average per gallon, than justified by the evidence, even as construed by the court.” This error is admitted, but it does not affect the conclusion reached. The purpose was to show that, from a certain date, the defendant received more money for less, or for an equal quantity of, water, than had been received, by the city, and that the average amount received per gallon, was larger. In order to establish the latter proposition, the total amounts received by the city and by the defendant were divided by the number of gallons pumped by them, respectively, and the quotients were stated in tens when they should have been stated in units. As the same error was committed on both sides the only cause of complaint lies in the fact that it was made to appear that the average amount, per gallon, received by both the city and the defendant, was larger than it really was. Beyond this, we agree with the learned counsel that the proposition as demonstrated, to-wit: that the defendant received more money for less water and a larger average price, per gallon, than the city, would be insufficient, in itself, to support the judgment rendered. The fact proved was, however, merely one of a number, leading to the same conclusion, and used in a process of inductive reasoning to establish that conclusion. It might have *41been omitted and the result would have been t-he same.
It is said that the court erred “in finding that the rates charged by the defendant are, or were, at any time, greater than any city tariff, or alleged city tariff, either the so-called “Hatch” tariff, or the alleged tariff of 1870, and that there is no evidence in the record showing or tending to support such finding.” No attempt was made to show that the rates enforced by the defendant exceeded those established by either of the tariffs mentioned. On the contrary, it was distinctly held that the “Hatch” tariff had been abandoned; that the tariff of 1870 had never become operative; and that the only question to be determined was whether the defendant’s charges have been in excess of those actually made by the city, in March, 1877, as shown by the boohs of the city. The defendant’s president, elected in 1882, referring, in his annual reports from time to time, to the “dissatisfaction” and “little natural remonstrance” which resulted from his advancing the price of water, was at some pains to say that the advances were within the company’s “authorized tariff.”
The learned counsel, in a brief heretofore filed in this case, said:
“ Whilst we contend that the ‘Hatch,’ or ‘Bragg,’ tariff was, unques- “ tionably, the one in force in 1877, still, we cannot see that, ‘ in so far “ as this particular case is concerned, it will make much difference “ whether the one or the other” (the Hatch tariff or that of 1870) “be “ adopted, because there is scarcely a bill, of the five hundred, or more, “ offered in evidence by the plaintiff, which is -as high even as the rates “ allowed by the alleged tariff of 1870.” The gentleman who, as president of the company, administered its affairs during the four years, from 1878 to 1882, immediately succeeding it’s acquisition of the works, gave the following testimony in the Levy case, whilst under cross-examination, in 1885, by one of the present counsel for the defendant, to-wit:
“ Q. Do you know anything about any Bragg tariff? A. There “ was a tariff, I think it was the ‘Hatch.’ General Bragg was in charge “ of it during the city administration. Q. What do you know about “that? A. Well, that had been abandoned. Q. By whom? A. By “the city. Q. How do you know? A. By the books, by their “ hydrant books. Q. Tell us in what instance they had abandoned it ? “A. Because they had reduced their charges, they had been greatly “reduced and the city had been reducing it for several years. Q. “ What do you mean by the city ? A. The City Administrator of Water *42“Works. Q. When did-they abandon it? A. The books show that. “ They were the only evidence I had of it, for a year before I took “ charge.” It is also shown, as we think, that the rates charged by the city in 1877 were lower than those established by the unpromulgated tariff of 1870. In view of this testimony and of the express prohibition in the defendant’s charter to the effect that it should charge no more for water than was actually paid to the city in March, 1877, it is difficult to understand how it can be contended that the “Hatch” tarifE was in force at that date, or that the defendant could have had any other “authorized tariff” than such as was ■ to be found, and as the defendant actually found during its first four years of existence recorded in the books of the city.
It is said that the court erred “in applying the vague term ‘large “ consumers,’ not only to Isaac Levy, and the other rice millers, simi- “ larly situated, who sued for a reduction of water rates, in 1884, or “ thereabouts,” (the suits were brought in October, 1883,) “but to “ consumers using far less water than said Levy and others, and “in the “ failure to find what was meant by ‘large consumer,’ and who “ was “ entitled to be considered as a ‘large consumer.’ ” The whole course of the defendant, since 1882, and the arguments which it’s counsel have addressed to this court in the instant case show that it has proceeded upon the theory that because there was no regularly adopted and published tariff in force at the date of it’s acquisition of the works, the prohibition against it’s charging more for water than was actually paid to the city at that time must be read out of it’s charter and held to be of no effect; and, the books showing what was so paid having been lost, whilst under its control, the most strenuous effort has been made to exclude probably the only evidence which is now obtainable as to their contents. That evidence was introduced in the Levy case in the absence of the books; and, in the absence of the books, the district court and this court found that Levy, who was shown to have consumed 1,237,500 gallons of water during the milling season, of eight months, was overcharged, and that he was entitled to water at the price which he, and others similarly situated, had paid to the city, to-wit: at the rate of 15 cents per thousand gallons. Referring to the judgment appealed from, this court said: “The judgment is based on as reliable “ data as can be obtained. It is more favorable to the company than “ the computation warrants, but the plaintiff does not complain.” Levy vs. Water Works On., 38 Ann., 28.' The cases of Ernst & Co. and of Stewart & Rickert were afterwards tried, with the boohs, and. also, with *43the testimony, as to their contents, which had been given in the Levy case. What the books showed was, in view of the decision which had been rendered in the Levy case, the most important question to be decided, and it was elaborately argued. In one of the briefs to which we have been referred (that of the plaintiff's counsel) it was said: “Tour Honors, by examining those books may see that, although “ charges over fifteen cents a thousand gallons were made for water “where the annual consumption was less than a million gallons, yet “ there is no ease where the consumption of water was over a million “ gallons where the charge was over fifteen cents per thousand gallons.” In the brief filed on behalf of the defendant this statement was contested, and what purport to be extracts from the books were reproduced, and it was said, in regard to them: “The éxtracts cover a period of time “ when the city used meter measurements in estimating quantity. The “ average highest charge per thousand gallons during the period of “meter measurements was 26% cents. The average lowest 21 cents. “ The average amount paid for water 23%. The highest rate shown “ on the tables was 40 cents per 1000.”
Turning to the extracts referred to we find that they begin with water furnished in 1868 and that some of them show the charges made in 1876 and 1877, and others do not. In any event, it is evident that the averages thus arrived at had nothing to do with the question before the court, which was, what was the amount charged upon March 31st, 1877? And it must have been so considered since the position of the plaintiffs was sustained and there were judgments in their favor. It was, therefore, judicially ascertained, contradictorily with the defendant in the cases mentioned, that a person who used 1,237,500 gallons of water, or more, in eight months, was entitled to such water at the rate of 15 cents per 1000 gallons, and, although it was not held that a person using less would not have been entitled to it at the same rate, it seems fair to suppose, from the arguments presented, that a person using less than 1,000,000 gallons a year would have been required to pay a higher rate. These last mentioned cases were decided, as we have already stated, in 1887. The evidence in the instant case shows that, in 1894,.the Cosmopolitan Hotel used 4,838,695 gallons of water for which it paid the defendant at the rate of 30 cents per 1000. It is said that this was an exceptional case, but-no reason is given why it should have been so, except that the proprietor of the hotel paid his bills without objecting. That, we apprehend, is what the uncomplain*44ing mass of the people have been doing. If, upon the other hand, we believed that the only fault of the defendant lay in exceptional overcharges we should be willing to attribute such overcharges to error or accident. But such is not the case. In 1898, the defendant, acting upon the theory that it was bound by no established rates, published a tariff of its own making, in which we find the following:
“For daily average of 100 to 500 gallons, per 1000 gallons, 35 cents.
“ For daily average of 500 to 2000 gallons, per 1000 gallons, 30 cents.
“ For daily average of 2000 to 4000 gallons, per 1000 gallons, 25 “ cents.
“ For daily average of 4000 to 5000 gallons, per 1000 gallons, 20 “ cents.
“For daily average of 5000 to 10,000 gallons, per 1000 gallons, 15 “ cents.”
“ Consumption above 10,000 gallons, daily, special rates.”
From this it will be seen that a person consuming a maximum of 5000 gallons a day or 1,825,000 gallons per year was required to pay at the rate of 20 cents per thousand, which was five cents in excess of the rate for which it had been held, more than ten years before, that Levy was liable, though there was no appreciable difference in the average daily consumption, and the gross amount consumed in the twelve months would be nearly 600,000 gallons more than was consumed by Levy, as the latter used -the water during only eight months. ■ So, according to the defendant’s tariff, a person consuming a maximum of 4000 gallons a day, or 1,460,000 a year, would be charged at the rata of 25 cents per thousand. And yet, we think, within the meaning of the'Levy case, and the other cases which have been decided against the defendant, and within any reasonable interpretation of the words, that a person who uses 1,460,000 gallons of water a year is a “large consumer.” Beyond this, for the purposes of the present application, we have made a further and more critical examination of a number of the books showing the flat rates paid to the city, in the years 1876-7 and 1877-8, by small consumers, and we have satisfied ourselves that there was no error in the statement, contained in the opinion handed down that “the flat rates charged to the smaller consumers have been advanced and maintained by the company in excess of those exacted bj the city during the last year of it’s administration.”
The proposition that no decree of forfeiture should be rendered in this case, except upon a tender, by the State, to the defendant, of the *45bonds which were given by it’s stockholders in exchange for their stock, appears to us to be untenable. The defendant was established, as private corporations are usually established, by, and for the benefit of, its promoters, who held the bonds of the city of New Orleans, and as a measure of relief which, no doubt, many other creditors of the city would have been glad, at that time, to have had extended to them. The only consideration received by the State for the valuable privileges granted by it was the advantage which it was supposed would inure to a community of her citizens from the faithful discharge by the corporation of the obligations assumed by it, and the corporate and other franchises were granted upon the condition, that, if those obligations were not faithfully discharged, the franchises would he withdrawn. This was, and is, the law of this state, which entered into, .and became a condition of, the contract, and the decree of forfeiture is merely the enforcement of that condition. Rehearing refused.