City of Montgomery v. McDade

• Decision Date: 23 January 1913
• Citation: 180 Ala. 156,60 So. 797
• Parties: CITY OF MONTGOMERY v. MCDADE ET AL.
• Court: Alabama Supreme Court

60 So. 797

180 Ala. 156

CITY OF MONTGOMERY v. MCDADE ET AL.

Supreme Court of Alabama

January 23, 1913

Rehearing Denied Feb. 14, 1913.

Appeal from Chancery Court, Montgomery County; L. D. Gardner Chancellor.

Action by W. R. McDade and others against the City of Montgomery. From judgment for plaintiffs, defendant appeals. Affirmed.

H. B Foster, of Tuscaloosa, and C. P. McIntyre, J. T. Letcher, and John V. Smith, all of Montgomery, for appellant.

Roquemore & Graham and Hill, Hill, Whiting & Stern, all of Montgomery for appellees.

MAYFIELD J.

This case is ruled by the case of City of Montgomery v. Greene et al., 60 So. 900, except as to one question, and this involves the right of the city (which is exercising the functions of a public utility corporation, in furnishing water to the inhabitants of the city and to other consumers) to charge consumers with the cost of setting a meter box for measuring the water consumed by them respectively.

The right to make such charge must depend either upon a special contract to that effect, or upon charter powers authorizing the city, as a water company, to impose the same. The bill denies any such contract or agreement, and denies any charter power to require the consumer to pay any such charge. We find no authority in the charter which would authorize the city by ordinance or otherwise, to require the consumers to pay such charge for installing meter boxes, which property belongs to the city or the water company, and is necessary to the performance of its charter powers in furnishing water to consumers, who are required to pay for water so measured by such meters. Montgomery Light & Water Power Co. v. Watts, 165 Ala. 370,

51 So. 726, 26 L. R. A. (N. S.) 1109, 138 Am. St. Rep. 71; Bothwell's Case, 13 Idaho, 568, 92 P. 533, 24 L. R. A. (N. S.) 485; 40 Cyc. 795. The authorities seem to hold that without a special contract to this effect, a water company cannot require a citizen or a consumer to pay for a part of its system before supplying him with water, unless its charter expressly authorizes such charges against the consumer. The chancellor held in accordance with these views, and cites these authorities in support of his ruling, and we find no error in his decision on this question.

It is insisted by appellant, and authorities are cited to sustain its position, that provisions like the one in question requiring the consumer to pay for a meter box,...