The opinion
RESPONSE TO APPLICATION FOR REHEARING.
De GRAFFENRIED, J.
On this application for a rehearing, it is argued that this court, in effect, has held that the water company may not voluntarily establish a uniform rate less than the maximum rate fixed by the ordinance contract referred to in the above opinion. It is also argued that this court has, in said *475 opinion, held, in effect, that said ordinance contract cannot he altered by legislative action taken either directly by the state or by the state acting through the city.
In the above opinion we have confined ourselves to the questions presented by the record, and we have undertaken to decide no other questions. The above points which it is claimed on this rehearing have been decided, in effect, by the above opinion, have not been before us for review, and they have not, of course, been decided by us. Those points, not being raised by this record, cannot in this case be passed upon by this court.
(2) In so far as the question which, in this case,, we have determined, is concerned, we think that the true rule at common law on the subject was correctly stated by the Supreme Court of New Jersey in the following language: “The business of the common carrier is for the public, and it is his duty to serve the public indifferently. He is entitled to a reasonable compensation, but on payment of that he is bound to carry for whoever will employ him, to the extent of his ability. A private carrier can make what contract he pleases. The public have no interest in that, but a service for the public necessarily implies equal treatment in its performance, when the right to the service is common. Because the institution, so to speak, is public, every member of the community stands on an equality as to the right to its benefit, and, therefore, the carrier cannot discriminate between individuals for whom he will render the service. In the very nature, then, of his duty and of the public right, his conduct should be equal and just to all. So, also, there is involved in the reasonableness of his compensation the same principles. A want of uniformity m price for the same hind *476 of service under like cvreumstances is most unreasonable and uovjust, when the right to demand it is common. It would be strange if, when the object of the employment is the public benefit, and the law allows no discrimination as to- individual customers, but requires all to be accommodated alike to individuals, and for a reasonable rate, by the indirect means of unequal prices some could lawfully get the advantage of the accommodation and others not.” — Messenger v. Penn. R. R. Co., 37 N. J. Law, 531, 18 Am. Rep. 754 .
To the same effect is Fitzgerald et al. v. Grand Trunk R. Co., 63 Vt. 169 , 22 Atl. 76 , 13 L. R. A. 70. Indeed, we think that the great weight of modern authority sustains the conclusions which have been expressed by this court in the above opinion.
Tbe application for a rehearing is overruled.
Anderson, C. J., and McClellan, Somerville, and Gardner, JJ., concur. Sayre, J., dissents. Mayfield, J., not sitting.