Smith v. Birmingham Waterworks Co.

• Decision Date: 09 August 1894
• Citation: 104 Ala. 315,16 So. 123
• Parties: SMITH v. BIRMINGHAM WATERWORKS CO.
• Court: Alabama Supreme Court

16 So. 123

104 Ala. 315

SMITH v. BIRMINGHAM WATERWORKS CO.

Supreme Court of Alabama

August 9, 1894

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Bill by Joseph R. Smith against the Birmingham Waterworks Company for an injunction to restrain the company from shutting off water. Decree for defendant, and plaintiff appeals. Modified and affirmed.

James E. Webb and Lane & White, for appellant.

Alex T London, for appellee.

COLEMAN J.

The appellant, Joseph R. Smith, the owner of two separate buildings in the city of Birmingham, filed the present bill praying that the respondent be enjoined from cutting off a supply of water from the buildings, and also that the respondent be enjoined from removing a meter from one of the buildings, and that it be required to restore a meter to the other building from which it had been removed. The bill also charges that the rates demanded for water by the respondent are unreasonable and oppressive, and prays relief in the alternative,-that, if the charges for water have not been fixed by contract with the city, the court would ascertain, fix, and declare a reasonable rate of charges for water. Upon the filing of the bill, after notice, the court awarded a temporary injunction. The respondent moved to dismiss the bill for want of equity, and also moved to dissolve the injunction. At the hearing, the court decreed that the bill as framed was without equity, and dissolved the injunction which had been granted. The bill was not dismissed finally, and leave was granted to amend it, so as to give it equity. The appeal is prosecuted from the decree declaring that the bill was without equity, and from the decree dissolving the injunction. The court held that the object of the bill was to obtain a construction of a contract in which there was no element of trust, and that under the rule held in Manufacturing Co. v. Hannon, 93 Ala. 87, 9 So. 539, there was no equity in the bill. We do not so interpret the bill. The complainant bases his right to relief upon a contract. If the terms of the contract and their meaning be as claimed in the bill and in argument, the complainant is entitled to relief. Chancery courts are continually construing contracts, in order to determine the rights of suitors growing out of contract; and, in adjudicating the rights of the parties in this case, it becomes necessary to construe the contract. The case in 93 Ala. and 9 South., supra, has no application. The alternative relief rests upon the theory that, if rates have not been fixed by contract with the city, the respondent is bound to furnish water at reasonable rates. The principle invoked in the alternative is that the waterworks company, by its charter and contract, is bound to supply water to the inhabitants of Birmingham, and has no authority arbitrarily to fix rates at unreasonable and oppressive prices, in the absence of contract stipulation fixing the rate. The bill shows that each of the buildings have three stories, and that mercantile business is carried on in the first floor of each; that the second and third stories are divided into many separate rooms, some of which are occupied in the daytime as offices, by lawyers, doctors, and dentists, and the other rooms are occupied by unmarried men as sleeping apartments. We will cite here so much of the contract between the city of Birmingham and the waterworks company as we think necessary for a proper consideration of the case:

"An Ordinance to Provide for a More Efficient System of Waterworks for the City of Birmingham, Ala.

"Section 1. Be it ordained by the mayor and aldermen of Birmingham that the Birmingham Waterworks Company, a corporation incorporated under the laws of the state of Alabama, the successors and assignees of the Elyton Land Company as to all of its rights, franchises, and privileges, its successors and assigns, is hereby authorized and empowered to erect and maintain one or more suitable waterworks pumping stations in or near the said city of Birmingham, and to lay down, maintain, and use water mains, pipes, aqueducts, and other fixtures to, in, and through any of the streets, avenues, alleys, and public grounds in said city, for the conveyance of water in and through said city, for the use of said city and its inhabitants, as herein provided.

"Sec. 2. Be it further ordained that the rights and privileges herein and hereby conferred are the subject of a contract between said mayor and aldermen of Birmingham and the Birmingham Waterworks Company, its successors and assigns, as herein set forth.

"Sec. 3. Be it further ordained that the water so furnished shall be clear, wholesome, and suitable for all domestic and all ordinary manufacturing purposes, and sufficient in quantity for the uses of said city and its inhabitants, and for all manufacturing purposes."

"Sec. 12. Be it further ordained that from the first day of July, 1888, the domestic rates for water furnished under this contract to the citizens of Birmingham shall never exceed the following rates per annum, viz.:

Dwellings of three rooms or less .............. $8 00

Each additional room under ten ................. 1 00

Each additional room over ten .................... 50

Water"closet for private family ................ 5 00

Additional close for same family or servants ... 2 50

Bath tubs for private family ................... 4 00

"The company shall have the right to charge for water by measurement at rates not exceeding the average rates named below:

"Measured water will be charged for as follows:

For daily consumption of:

1,000 gallons or less ........ 80 cents

1,000 to 1,500 gallons ....... 27 1/2 cents

1,500 to 2,000 gallons ....... 25 cents

2,000 to 3,000 gallons ....... 22 1/2 cents

3,000 to 4,000 gallons ....... 20 cents

4,000 to 5,000 gallons ....... 17 1/2 cents

In excess of 5,000 gallons daily:

For 1st 5,000 gallons daily .. 15 cents per 1,000

For 2nd 5,000 gallons daily .. 14 cents per 1,000

For 3rd 5,000 gallons daily .. 13 cents per 1,000

For 4th 5,000 gallons daily .. 12 cents per 1,000

For 5th 5,000 gallons daily .. 11 cents per 1,000

For 6th 5,000 gallons daily .. 10 cents per 1,000

For 7th 5,000 gallons daily .. 9 cents per 1,000

For 8th 5,000 gallons daily .. 8 cents per 1,000

"All in excess of 40,000 gallons daily, 8 cents per thousand gallons. The company reserves the right to put in meters at its option, for which an annual rental will be charged as follows:

1/2 " meter ... $ 3 00 per annum.

3/4 " meter ... 5 00 per annum.

1" meter ....... 7 50 per annum.

1 1/2 " meter .. 12 00 per annum.

2" meter ....... 20 00 per annum.

3" meter ....... 30 00 per annum.

4" meter ....... 50 00 per annum."

We think it clear from these provisions of the contract that the waterworks company is bound to furnish water in sufficient quantity "for the uses of the city and its inhabitants and for all manufacturing purposes." We think it clear, also, that the rates at which the water should be furnished were fixed by the terms of the contract; that for the city, by a different section of the contract, "for other purposes than fire protection and practice of firemen, at the rate of fifteen cents for one thousand gallons." The contract plainly means that the company should charge, for all water...