City Cleaning Co. v. Birmingham Waterworks Co.

• Citation: 204 Ala. 51,85 So. 291
• Decision Date: 15 January 1920
• Docket Number: 6 Div. 995
• Parties: CITY CLEANING CO. v. BIRMINGHAM WATERWORKS CO.
• Court: Supreme Court of Alabama

85 So. 291

204 Ala. 51

CITY CLEANING CO. v. BIRMINGHAM WATERWORKS CO.

6 Div. 995

Supreme Court of Alabama

January 15, 1920

On Rehearing, February 5, 1920

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by the City Cleaning Company, a partnership composed of R.R Hudson and W. Gilmore against the Birmingham Waterworks Company, for damages for cutting off their water. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

W.T Edwards, of Birmingham, for appellants.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

Where the bill of exceptions does not purport to set out all, or substantially all, of the evidence, reasonable presumptions will be indulged in favor of the ruling of the trial court. Crow v. McKown, 192 Ala. 480, 482, 68 So. 341, L.R.A.1915E, 372; Brannon v. City of Birmingham, 177 Ala. 419, 422, 59 So. 63; Sou. Hdw. & Supply Co. v. Standard Equip. Co., 165 Ala. 582, 585, 51 So. 789; McDonald v. Wood, 118 Ala. 589, 596, 24 So. 86; Gen. A.F. & L. Ins. Co. v. Shields, 9 Ala.App. 214, 220, 62 So. 400. In the condition of the record, we will not review an instruction predicating a finding upon the evidence.

The question of primary importance sought to be presented, whether the waterworks company may make and enforce discriminatory rates to the several members of a class, has been answered in the negative by our court. B.R., L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565, 570; City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900; City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 384, 30 So. 445; State ex rel. Weatherly v. Birmingham Waterworks Co., 185 Ala. 388, 64 So. 23, Ann.Cas. 1916B, 166; Birmingham Waterworks Co. v. Brown, 191 Ala. 457, 459, 67 So. 613, L.R.A.1915D, 1086; Birmingham W.W. Co. v. Hernandez, 196 Ala. 438, 71 So. 443, L.R.A.1916E, 258; Birmingham Waterworks Co. v. Truss, 135 Ala. 530, 33 So. 657.

On the trial the questions, "Do you know whether or not they have been furnishing water for the same people for $2.25 since that?" (turning the water on), and "State whether or not, after the water was turned back on, the defendant accepted $2.25 minimum charges per quarter, or the same amount you had tendered them before they cut the water off," were sought to be propounded by plaintiffs, to which defendant's objections were sustained, and exceptions reserved. The purpose was to show that the $2.25 tendered was the minimum charge per quarter to customers of the class of which was their landlord, and to which plaintiff insists they were entitled. Such evidence tended to show that the $6.75 minimum quarterly charge, demanded by defendant of the plaintiff at the time such tender was made, was discriminatory against them as tenants. The owner of the building testified he had leased the entire building to plaintiffs and that "they were the owners during the lease."

We take judicial knowledge of the ordinances of the city of Birmingham (Acts 1915, § 7, p. 294; Birch v. Ward, 200 Ala. 118, 75 So. 566; B.R.L. & P. Co. v. Kyser, 82 So. 151), and are advised of the water rates to owners or occupants of such buildings by the terms of the ordinance having application. Ordinance of City of Birmingham, 289-C, adopted February 24, 1915. The pertinent ordinance is divided into:

"Section First. Flat Rates. *** For dwelling of three rooms, or less, $1.50 per quarter. *** Store, shop, office or restaurant, each, according to size and occupation, $1.50 to $2.00 per quarter"

--and:

"Section Second. Meter Rates. *** Where a meter is placed upon a service pipe supplying water to two or more stores, shops, offices or restaurants (the owner paying the water bill for the entire premises) the minimum quarterly charge shall be two dollars and twenty-five cents ($2.25) for three stores, shops, offices or restaurants, or less, and proportionate thereto, based upon the total number, where there are more than three stores, shops, offices or restaurants so supplied by one service pipe."

The premises in question were described by its owner as being a double house--

"two stores under one roof, with separate entrances to the two stores, then there was in the middle a stairway upstairs eight rooms upstairs, all entrances separate, the eight rooms were ordinary size, all building had altogether one meter."

He indicated the course of water from the street as follows:

"It comes from the street to the right-hand store, and through the second store and upstairs; had a closet and sink in the store. *** The same service pipe went around to the other store *** (where there was a closet and a sink); then the same service pipe went upstairs; water-closet and bathtub upstairs. There were three departments of the store, each having separate entrances, and all supplied by the same

...