Birmingham Waterworks Co. v. Windham

• Decision Date: 17 December 1914
• Docket Number: 988
• Citation: 190 Ala. 634,67 So. 424
• Parties: BIRMINGHAM WATERWORKS CO. v. WINDHAM.
• Court: Alabama Supreme Court

67 So. 424

190 Ala. 634

BIRMINGHAM WATERWORKS CO. v. WINDHAM.

No. 988

Supreme Court of Alabama

December 17, 1914

Appeal from City Court of Birmingham; J.M. Miller, Judge.

Suit by T.C. Windham against the Birmingham Waterworks Company to restrain the cutting off of the water from complainant's house and for a mandatory injunction requiring the company to accept a certain sum in full for water services for a certain period. From a decree granting the relief prayed for defendant appeals. Reversed and rendered.

Percy Benners & Burr, of Birmingham, for appellant.

Whitaker & Nesbit, of Birmingham, for appellee.

McCLELLAN J.

The rights and obligations of the parties to this cause and the correctness of the decretal order granting an injunction pendente lite restraining appellant from cutting off or discontinuing water service at the residence of the appellee depend upon the proper construction of the ordinance-contract entered into by the city council of Graymont and the appellant on the 25th day of October, 1908. In the decision of the Court of Appeals delivered in the cause styled Birmingham Waterworks Co. v. Keiley, 2 Ala.App. 629 56 So. 838, will be found set out the schedule of flat rates and the schedule of meter rates, with other related provisions of this ordinance-contract. It is not thought necessary to republish, in extenso, those schedules. Reference to that report must suffice in that respect.

Section 13, so far as it need be here reproduced, is:

"That, as a further inducement unto grantee to construct said waterworks system and operate the same, said city agrees that grantee shall have the right for and during the full term and continuance of this ordinance to charge all persons and corporations using water from its mains at the following rates, which shall be collected quarterly in advance, except in cases where meters are used, in which cases charges may be collected quarterly or monthly, at the option of the grantee and, in consideration of the foregoing, grantee does bind itself to furnish, during such term, water unto all consumers in said city having connections with its mains at such rates." Section 14 of the ordinance-contract is in these words:

"That grantee shall have the right to set a meter on any service line, whether it be used for domestic or any other purpose and notwithstanding a specific or annual rate may be named therefor herein, and charge for use of water according to the meter schedule provided in this ordinance, and any water consumer shall have the right to require grantee to set a meter on his service pipe and to pay for water service by meter measurement, provided that each and every water consumer supplied by meter measurement, shall pay a minimum monthly charge for water privilege of at least one ($1.00) dollar, or a minimum quarterly charge for water privileges of at least three ($3.00) dollars, in cases where a one-half inch or five-eighths inch meter is used, except that in no event shall the minimum monthly or minimum quarterly charge for water privileges by meter exceed the flat rate charge for the same period."

The schedules of flat and meter rates appear in section 13 of the ordinance-contract; and in that section, following the schedules it is provided:

"The rates provided for in this section are subject to the modifications and provisions of sections fourteenth, fifteenth, sixteenth and eighteenth."

The only specific reference in the meter schedule to as small a quantity of water as 1,000 gallons is in these words and figures in the first line of the schedule: "For a daily consumption of 1,000 gallons $.30 per 1,000 gals." Under the capital heading "Meter Rates," and, in parentheses, preceding the expression just quoted, these words appear: "Subject to the minimum charges and meter rates hereinafter provided for."

The question propounded on this appeal is whether a residential consumer, whose service pipe is of the three-quarter inch class, and who uses less than 1,000 gallons of water a day, may be required to pay for water he consumes as measured by a meter; such consumer having for many years used the water furnished by the company (appellant) and having paid therefor during that time according to the measure thereof made by a meter installed by the mutual agreement of appellee and appellant, pursuant to what they conceived to be the rights established by section 14 (quoted above) of the ordinance-contract.

It will be noted that the quoted first line of the meter schedule appears to only contemplate a daily consumption of exactly 1,000 gallons; no more and no less. If this line of the schedule were considered alone, it would be readily conceded that the rate of 30 cents per 1,000 would and could only apply to a daily user of that exact quantity of water. When the meter schedule's succeeding ascending gradations of quantity consumed each day, viz., chiefly 500 gallons and 1,000 gallons, are considered, and the obvious fact that rarely, if ever, may there be a connectedly recurrent...