Alabama Water Co. v. City of Jasper

• Decision Date: 15 May 1924
• Docket Number: 6 Div. 165.
• Citation: 211 Ala. 280,100 So. 486
• Parties: ALABAMA WATER CO. v. CITY OF JASPER, FOR USE OF CAIN.
• Court: Alabama Supreme Court

100 So. 486

211 Ala. 280

ALABAMA WATER CO. v. CITY OF JASPER, FOR USE OF CAIN.

6 Div. 165.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Bill in equity by the City of Jasper, for the use of R. A. Cain against the Alabama Water Company. From the decree respondent appeals. Affirmed.

Bankhead & Bankhead, of Jasper, for appellant.

Curtis Pennington & Pou, of Jasper, for appellee.

ANDERSON C.J.

The contract involved was between the water company and the city of Jasper, for the benefit of the citizens and taxpayers. The city could no doubt maintain the present bill in its own name for the benefit of its citizens and taxpayers; this right, however, on the part of the city, would not preclude a citizen or taxpayer from resorting to the courts for the negative means of preventing the violation of a public duty arising out of the contract, by an injunction, when he has a particular and direct interest in the violation of said duty by the respondent. He can no doubt do this in his own name; the relief sought being the enforcement of a public duty rather than the specific enforcement of the contract, generally speaking.

We see no impropriety, however, in the amendment, making the city a nominal party complainant, as the complainant is not a party or privy to the contract, though made by the city for the benefit of himself and other citizens and property owners. Section 2490 of the Code of 1907; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Smith v. Yearwood, 197 Ala. 682, 73 So. 384.

This he could do, with or without the consent of the city, and the remedy of the city is to require security for cost by application to the court, but which is of no concern to the appellant. Ex parte Randall, 149 Ala. 640, 42 So. 870. The amendment making the city the nominal complainant did not work an entire change of parties. Cain was still the real, as he had been before the sole and real, party complainant. Cowan v. Campbell, 131 Ala. 211, 31 So. 429.

Under the terms of the contract:

"The water company agrees that all extensions of cast iron pipe to the present system of mains shall be 6 inches in diameter or larger, provided the connection can be made with 6-inch pipe."

The proof in this case shows that a 6-inch connection can be made by the main in question at a small cost to the company, notwithstanding one of the connections contemplated by it is a 4-inch main or pipe. In other words, while it may be easier and a little cheaper to connect the present main at one end with a 4-inch main or pipe, the proof shows-that is, the weight of the evidence-that it is feasible to make a 6-inch connection at a cost of not exceeding $150, and thereby comply with the terms of the contract, which will prove a material benefit to the property owners along said main, especially in case of fire.

True this complainant is not such a privy to the contract as would enable him to maintain a suit for property destroyed by fire by reason of the water company violating the contract with the city. Lovejoy v. Bessemer, 146 Ala. 374, 41 So. 76, 6 L. R. A. (N. S.) 429, 9 Ann. Cas. 1068. But he has a particular and direct interest in the main in question, different from the general public, and can maintain an appropriate...