Alabama Water Co. v. City of Attalla
Decision Date | 15 May 1924 |
Docket Number | 7 Div. 451. |
Citation | 211 Ala. 301,100 So. 490 |
Parties | ALABAMA WATER CO. v. CITY OF ATTALLA. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Bill in equity by the City of Attalla against the Alabama Water Company, for specific performance of a contract to furnish water, and injunction to restrain the exaction of higher rates for service than those provided by the contract. From a decree granting the relief prayed, respondent appeals. Reversed and remanded.
Knox Acker, Sterne & Liles, of Anniston, Hood & Murphree, of Gadsden, and Eyster & Eyster, of Albany, for appellant.
Harwell G. Davis, Atty. Gen., and Hugh White, Asst. Atty. Gen., for Alabama Public Service Commission, amicus curiæ.
Goodhue & Lusk and E. O. McCord & Son, all of Gadsden, for appellee.
The primary question is: Did the trial court commit error in enjoining appellant from changing the rates for water supplied the inhabitants of the city of Attalla, and charging the rates fixed by the Alabama Public Service Commission? The contract between the city and the water company is of date September 30, 1916. The order of the Alabama Public Service Commission is of date October 1, 1921, and was sought to be made by authority of the act of October 1, 1920 (Gen. and Local Acts Sp. Sess. 1920, p. 38). The lease contract in question had not the approval of the Public Service Commission.
The suit is a collateral attack on the order of the Alabama Public Service Commission. The general rule of law is that such an order or judgment will be sustained on collateral attack unless the same be void. Acklen v. Goodman, 77 Ala. 521; Hamilton v. Tolley, 209 Ala. 533, 96 So. 584; Miller v. Thompson, 209 Ala. 469 Alexander v. Nelson,
42 Ala. 462. See also, Martin v. Hall, 70 Ala. 421, motion for summary judgment against constable and sureties on official bond; Wightman v. Karsner, 20 Ala. 446, challenging the order of court of commissioners of roads and revenue; Barron, Adm'r, v. Tart, 18 Ala. 668, motion by administrator to quash an execution and to retax costs. The distinction between a direct and a collateral attack for the purpose of avoiding or correcting a judgment or decree is adverted to in Hamilton v. Tolley, 209 Ala. 533, 96 So. 584; Miller v. Thompson, 209 Ala. 469, 96 So. 481; and authorities collected in Edmondson v. Jones, 204 Ala. 133, 85 So. 799.
The order of the Public Service Commission made the subject of this suit might have been reviewed by an appeal to the circuit court of Montgomery county in equity, and then by appeal to this court, as provided in section 62 of General and Local Acts Special Session 1920, p. 56. This procedure was not observed by the city of Attalla; and its bill praying injunction to prevent the Alabama Water Company collecting the rate fixed by the Public Service Commission is merely a collateral attack on the Commission's order fixing a different rate to be charged consumers of water furnished by that corporation.
The jurisdiction and powers of the Alabama Public Service Commission that are given expression in sections 17 and 18 of the act, supra, are:
The Commission's "powers and jurisdiction" are, among other things, declared in section 66 as follows:
Proceeding on the assumption that the lease contract in question is subject to this general statute, we are dealing with the order of a Commission with general powers and jurisdiction which are exclusive in respect of rates, service regulations, etc. With this understanding of the powers and jurisdiction of the Public Service Commission, we may inquire of the procedure to an order or judgment in the premises. In section 28 is contained provisions for complaint and investigation by the Commission after notice and a hearing on complaint, or of its own motion whenever it deems that the public interest so requires. The order to be entered is thus indicated in the statute: Section 31.
Provisions of section 55 are that a substantial compliance by the Commission with the requirements of the act will give effect to its orders, etc.; and provisions of section 68 are:
"Every order of the Commission shall be in writing, and in cases of importance may be accompanied by an opinion, setting forth in brief the facts on which the commission has based its order."
The order of the Commission sought to be collaterally assailed recited, among other things, that the Commission had jurisdiction to act in the premises, stated the respective contentions of the parties, adverted to the salient provisions of the lease contract, found that the property belonged to the city of Attalla, and that its people are served by the said waterworks. It is further recited that evidence was offered of the reasonableness of the "rates in this case," of the expenditures by the water company and its predecessors, etc., and what the company had expended under the lease contract. It is then recited that the Commission found the disbursements required would aggregate the sum of $12,283.09. The "final order" is:
To continue reading
Request your trial-
Alabama Public Service Commission v. Mobile Gas Co.
... ... Davis v. Packard, 6 Pet. 41, 8 L.Ed. 312. Such is ... the rule in this court. Alabama Water Co. v. City of ... Attalla, 211 Ala. 301, 100 So. 490, 493; Alabama ... Public Service ... ...
-
State ex rel. Wilkinson v. Murphy
... ... WILKINSON v MURPHY. 6 Div. 431. Supreme Court of Alabama January 31, 1939 ... Rehearing ... Denied Feb. 21, 1939 ... Gray v. Johnson, ... 235 Ala. 405, 179 So. 221; Walden v. City of ... Montgomery, 214 Ala. 409, 108 So. 231; Miller v ... Marx, 55 ... legislature. Alabama Water Co. v. City of Attalla ... 211 Ala. 301, 100 So. 490. See, also, ... ...
-
Austin v. Tennessee Biscuit Co.
... ... TENNESSEE BISCUIT CO. et al ... 6 Div. 150 ... Supreme Court of Alabama" ... March 29, 1951 ... Rehearing Denied May 10, 1951 ... \xC2" ... ...
-
Phenix City v. Alabama Power Co.
... ... When so, it can be ... made to extend during the corporate existence of the utility ... City of Owensboro v. Owensboro Water Works Co., 243 ... U.S. 166, 37 S.Ct. 322, 61 L.Ed. 650 ... A ... franchise grant, as we will show, is the creation of a ... property ... 557, 6 L.R.A.,N.S., ... 781, 117 Am.St.Rep. 20. Though sometimes subject to ... revocation by the State: Alabama Water Co. v ... Attalla, 211 Ala. 301, 100 So. 490; Union Dry Goods ... Co. v. Georgia Public Service Co. 248 U.S. 372, 39 S.Ct ... 117, 63 L.Ed. 309, 9 A.L.R. 1420; ... ...