Montgomery Light & Water Power Co. v. Citizens' Light, Heat & Power Co.
| Decision Date | 09 February 1905 |
| Citation | 38 So. 1026,142 Ala. 462 |
| Parties | MONTGOMERY LIGHT & WATER POWER CO. v. CITIZENS' LIGHT, HEAT & POWER CO. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; A. D. Sayre, Judge.
Suit by the Montgomery Light & Water Power Company against the Citizens' Light, Heat & Power Company. From an adverse decree, complainant appeals. Affirmed.
The bill prayed for an injunction "restraining the Citizens' Light, Heat & Power Company, its officers agents, and employés, from stringing its wires or doing or performing any other act contemplated by the resolution in said bill set forth, and upon a final hearing * * * to make said injunction perpetual." On the submission of the cause upon the motion to dismiss the amended bill for the want of equity, upon the demurrer to the amended bill, and upon the motion to dissolve the interlocutory injunction for the want of equity in the bill upon the sworn denials of the answer, and because the injunction was improvidently granted the court rendered a decree overruling the motion to dismiss the amended bill, but sustained the demurrer to the bill as amended, and granted the motion to dissolve the interlocutory injunction. The complainant appeals, and assigns as error that portion of the decree sustaining the demurrer to the bill as amended, and dissolving the interlocutory injunction.
Robert E. Steiner, for appellant.
Phares Coleman and Crum & Weil, for appellee.
The bill in this case was filed by the appellant against the appellee, alleging that the complainant (appellant) held a franchise from the corporate authorities of the city of Montgomery to furnish electric lights, power, etc., under which it had strung wires on poles erected in the streets of said city; that the defendant (appellee) had also received a franchise from said city for similar purposes, which contained a special proviso that its poles and wires should not be erected and strung so as to interfere with the poles and wires of complainant; also, that the city council of said city, at a special meeting on May 30, 1904, passed an ordinance allowing defendant to maintain for a period of 20 days from that date the line of wires then strung on their poles on Dexter avenue, and to make all necessary connections therewith, but this permission was not to be effective unless the authorized officials of said company addressed a communication to the mayor obligating themselves at the expiration of said 20 days to replace said wires, in accordance with such ordinances and regulations of the City Code as may then be in force. But the appellant claims that said ordinance or resolution is void, because, first, under the charter of said city all ordinances intended to be of permanent operation are required to be voted for by 8 members of the 15 composing the council; and another provision prohibits an alderman from voting "on any matter before the council in which he or his employer has any personal interest," whereas, at the meeting at which this ordinance was adopted there were present only 10 aldermen, of whom 2, being stockholders in appellee corporation, did not vote, but one Ryan, who is an employé in business of one Cobbs, who is a stockholder, did vote, thus leaving only 7 legal votes. The bill then alleges that defendant "intends to proceed under said resolution to string its wires," etc., and that, if it does so, "it will interfere with the poles and wires of orator, and irreparably damage orator's wires," etc.; and the prayer is for an injunction restraining the defendant "from stringing its wires, or doing or performing any other act contemplated by the resolution." The injunction was granted.
The answer of respondent claims that said last-named ordinance or resolution was not of a permanent nature, and hence, there being a quorum present and a majority of that quorum voting for it, it was properly passed; also claims that it had a right to string its wires and erect poles in the manner provided, even without said last ordinance or resolution. It also denies fully all the allegations about irreparable injury, and alleges that the erection of the poles and wires as proposed would not interfere with complainant's property, franchise, or rights at all. A demurrer is also incorporated in the answer, and complainant amends its bill, alleging that, since the adoption of the resolution by the city council, defendant, acting under the same, has connected its wires on Dexter avenue with the place of business of one Dan Dowe, and is furnishing him light; that it is dangerous to life and property of citizens of Montgomery for defendant to be allowed to connect its wires as provided by said resolution; that the meeting at which said resolution was adopted was a special meeting, and all of the members of the council were not notified; that in the adoption of said resolution the rules were not suspended; that at said meeting there were only seven qualified voters present, a quorum being eight. The answer to the amendment refiles the answer to the original bill; admits connecting its wires with Dowe, but denies that it acted contrary to any city ordinance, or in any way contravened the rights and privileges of complainant; denies all allegations of danger, and avers that the present arrangement is less dangerous than the manner directed by the city ordinance before May 30, 1904; alleges that the special council meeting was regularly and legally called, and notice given to each member, except Lobman and Sullivan, who were absent from the city, both at the time of the call and at the time of the meeting; that, without affirming or denying the suspension of the rules, the ordinance of May 30, 1904, was temporary in its character, and limited in operation, and was reported by the committee having the entire subject of the electrical matters in hand; that said special meeting was called for the purpose of considering and acting on a general ordinance on these matters, but, as the council were not prepared to agree on the general ordinances, the resolution in question was adopted for the purpose of giving the privileges thereby conferred temporarily to defendant, until the general ordinance could be considered and adopted. It also alleges that at said special meeting there were more than eight present, and a majority of those present voted for it.
The agreement of counsel and the assignments of error limit the matters to be considered here to two, to wit: (1) Whether the court erred in sustaining the demurrers to the bill as amended; and (2) whether it erred in sustaining the motion to dissolve the preliminary injunction. The assignments of causes of demurrer are numerous, but in substance they are (1) That the city should be made a party to the bill; (2) that the complainant has an adequate remedy at law; (3) as to the resolution adopted by the...
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