City of Birmingham v. Birmingham Waterworks Co.

• Decision Date: 02 July 1907
• Citation: 152 Ala. 306,44 So. 581
• Parties: MAYOR, ETC., OF CITY OF BIRMINGHAM v. BIRMINGHAM WATERWORKS CO.
• Court: Alabama Supreme Court

44 So. 581

152 Ala. 306

MAYOR, ETC., OF CITY OF BIRMINGHAM v. BIRMINGHAM WATERWORKS CO.

Supreme Court of Alabama

July 2, 1907

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by the mayor and aldermen of the city of Birmingham against the Birmingham Waterworks Company for breach of the defendant's contract to supply water for dwellings at specified prices, in that defendant had installed meters and charged for meter service to dwellings of consumers who kept boarders, and that such meter rates were in excess of the schedule rate for dwellings, closets, and bath tubs prescribed by the contract. Defendant answered, alleging that the houses in question were originally built for private residences, but at the time the meters were installed were being used as commercial boarding houses or small hotels, and were not dwellings within the meaning of the contract. The plea was afterwards amended by substituting the words "public boarding houses" for the words "commercial boarding houses," and by striking from the plea the words "or small hotels." From a judgment in favor of defendant, plaintiffs appeal. Reversed and rendered.

See 42 So. 10.

E. D Smith, for appellants.

London & London, for appellee.

McCLELLAN J.

The amended plea was questioned for sufficiency, was sustained and this appeal results. The sole question, controlling the conclusion of sufficiency or insufficiency of the amended plea, is: Is a public boarding house not a dwelling, within the meaning of the existing contract between appellant and appellee? This contract, relative to charges to be exacted divides the patrons of the appellee into three classes, viz.: The user of hydrants for fire protection, etc.--the city; those consuming water for domestic purposes; and all those consumers without the two classes created. Practically the domestic consumer is an exception from the last mentioned class; and, of course, if not of the domestic class, is subject to be charged for the consumed water as measured by meter. The schedule for domestic use is based on the dwelling, graduated according to the number of rooms, except that the rate for bath tubs and closets, for the use of a private family and its servants, is arbitrarily fixed in the contract. As in the construction or interpretation of contracts, seeking always to ascertain the intention of the parties thereto, the decision of the question whether in a given case a building is a dwelling or not, within the meaning of the contract, the situation and surroundings or the parties and the end sought to be attained by their agreement have exercised, as appears from the cases, a large influence in inducing the conclusion reached. In another class of cases, to which our attention has been invited, prosecutions for larceny and burglary from and of dwellings, brought the matter for the court's determination with reference to enforcement of penal statutes. So, with the possible exception of the Truss Case, 135 Ala. 530, 33 So. 657, to be later mentioned, we know of no authority in point, though other cases available are presently valuable in the announcement of relatively applicable principles.

Construing this contract, it is evident that the flat rate scheduled for domestic use is based upon the dwelling as an abode, and not its character in construction. In other words, whether the buildings were constructed as dwellings or not, the test under this contract, is: Were these buildings abodes of inhabitants of the city of Birmingham? Clearly, if a building, not originally a dwelling, nor built in that form or for that purpose, afterwards becomes an abode, is used for that purpose, the consumer therein is entitled to the flat rate for water used for domestic purposes, according to the contract; and, on the other hand, a building built and occupied as an abode, may lose its character as such, and thus pass without the class granted the flat rate. So it may be affirmed that, as here important, the character of the occupation of the building, and not the purpose in its...