Birmingham Waterworks Co. v. Keiley

• Decision Date: 23 November 1911
• Citation: 56 So. 838,2 Ala.App. 629
• Parties: BIRMINGHAM WATERWORKS CO. v. KEILEY.
• Court: Alabama Court of Appeals

56 So. 838

2 Ala.App. 629

BIRMINGHAM WATERWORKS CO. v. KEILEY.

Court of Appeals of Alabama

November 23, 1911

Rehearing Denied Dec. 14, 1911.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by W. R. Keiley against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Affirmed.

London & Fitts, for appellant.

Bondurant & Smith, for appellee.

DE GRAFFENRIED, J.

The appellant, a public service corporation with its principal office in the city of Birmingham, Ala., made with the municipality of Graymont, then a suburb of Birmingham, a contract to supply its residents with water, the parts of which relevant to this controversy were as follows:

Flat Rates.

Private dwelling of three (3) rooms or less ................... $6.00 per annum

For each additional room in private dwelling up to and

including ten (10) rooms ..................................... 1.00 per annum

For each additional room in private dwelling over ten (10)

rooms ......................................................... .50 per annum

Water-closet for private family, for first closet .............. 5.00 per annum

For each additional closet for same family or servants 2.50 per annum

Bath tubs for private family, each 4.00 per annum

A dwelling in the rear of a premises occupied by a person or persons not employed as servant or servants on the premises shall be charged for as separate dwelling, whether or not there are water fixtures for the sole and individual use of its occupants.

Boarding or lodging house in addition to the above room

rate, for each boarder or lodger .......................... $ 1.50 per annum

Store according to size and

occupation ..................................... $12.00 to $100.00 per annum

Drinking saloon ................................... 25.00 to 100.00 per annum

Restaurant ........................................ 25.00 to 100.00 per annum

Printing office, not including use

steam engine ................................... 220.00 to 60.00 per annum

Bank 12.00 per annum

Photograph gallery ................................ 12.00 to 50.00 per annum

Bakery ............................................ 20.00 to 50.00 per annum

Cows, each ..................................................... 1.50 per annum

For a daily consumption of 1,000 gallons ............... $.30 per 1,000 gals.

Meter Rates.

(Subject to the minimum charges and meter rents hereinafter provided for.)

For a daily consumption of 1,000 to 1,500 gallons .. 2.27 1/2 per 1,000 gals.

For a daily consumption of 1,500 to 2,000 gallons ....... .25 per 1,000 gals.

For a daily consumption of 2,000 to 3,000 gallons ... .22 1/2 per 1,000 gals.

For a daily consumption of 3,000 to 4,000 gallons ....... .20 per 1,000 gals.

The rates provided for in this section are subject to the modifications and provisions of sections fourteen, fifteen, sixteen, and eighteen of this ordinance. Water rents shall be payable at grantee's Birmingham office. Failure to pay water rent when due shall entitle grantee to the right to discontinue water service until the amount due has been paid, together with a fee of fifty (50) cents for turning off and turning on the water.

Section 14. 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 privileges 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 above contract nowhere provides--certainly not in express terms--a meter rate for water consumed in quantities of less than 1,000 gallons daily, but a flat rate is expressly provided for residences of every kind.

The appellee was a resident of Graymont, and occupied a five-room residence without bathtub or sanitary connections, and he kept a cow. He became a customer of appellant, and under the above flat rate was chargeable with $8 per annum for his residence and $1.50 for his cow, making $9.50 per annum, or $2.37 1/2 per quarter. In February, 1909, the appellant, without the request of appellee, placed a five-eighths inch meter at his house. There seems to have been no trouble between the appellant and appellee until October 1, 1909, and the record fails to inform us whether, after February and before October, appellant's quarterly charge was $2.37 1/2 or $3. We conclude that it could not have been greater than $3 per quarter, because the efforts of appellant to collect more than that amount in October brought on this litigation. The appellant made, not monthly, but quarterly, collections, and on October 1, 1909, for the previous months of July, August, and September presented appellee with a bill for $8.75, an excess of $5.75 over the amount which appellee conceded he should be required to pay. Appellee had made no agreement to pay $8.75 for the water supplied to him during the previous July, August, and September, and appellant claimed that sum of appellee because during said period he had used at his residence 29,250 gallons of water, which at 30 cents per 1,000 gallons amounts to $8.75. During the period covered by the controversy, appellee's family consisted of his wife and three children. They kept no servants, and appear to have done their own cooking and housework. The water was used for washing, cooking, and other household purposes. On the back porch was a small churn, and this churn was run eight or ten minutes each day, six days during the week, with water supplied through a one-sixteenth inch pipe and conveyed from the churn into the trough where the cow drank, and from there into an alley. When the bill for $8.75 was presented to appellee, according to his testimony, he saw the clerk of appellant, to whom he had previously been accustomed to make his payments, and offered to pay him $3 for the previous quarter, stating that he did not owe the other $5.75, but the clerk declined to receive it. He then saw, according to his testimony, the agents of appellant in its Birmingham office, and, to use his language, "insisted that there was a contract in effect, and that it was being violated, and insisted upon their getting the contract, and entering into a discussion with me for the purpose of seeing if we could not come to some kind of understanding," but without avail. He saw the general manager of appellant; and, to again use his language: "I went into his private office and told him that there was a little difference existing between the Birmingham Waterworks Company and myself, and that I supposed none of the bookkeepers or clerks would be authorized to regulate or handle it. In that conversation I tendered Mr. O' Connell the $3. He said that if the bookkeeper had rendered a bill for $8.75 that would be the amount I would have to pay or the water would be turned off. " He further testified that in two hours after that the water was turned off; that for about three weeks he and his family suffered the expense and inconvenience necessarily resulting from the loss of the right to use appellant's water; and that he finally paid, under protest, the $8.75, and the water was again supplied to him.

1. It is manifest that appellant had no right to collect of appellee more than $3 for the quarter ending October 1, 1909 and that the extra charge of $5.75 was unauthorized and illegal. It is not necessary for us to determine whether the clause in the contract which provides "that each and every water consumer supplied by meter measurement shall pay a minimum monthly charge for water privileges of at least one dollar or a minimum quarterly charge for water privileges of at least three dollars in cases where a 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," authorized appellant to charge appellee $3 per quarter, instead of the flat rate of $2.37 1/2. Appellee conceded the justice of the charge of $3, and tendered that amount to appellant before the water was cut from his premises, and that question is not before us. Neither are we called upon to determine whether a private dwelling which consumes more than 1,000 gallons of water daily can be by the installation at such residence of a meter by appellant required to pay more for the water it uses than is fixed under said contract by the flat rate, for that question is also not before us. What we do determine is that the meter rate of 30 cents per 1,000 gallons does not apply, under the contract, to a residence whose occupants keep a cow and who do not consume as much as 1,000 gallons of water...