State v. Birmingham Waterworks Co.

• Decision Date: 25 November 1913
• Citation: 64 So. 23,185 Ala. 388
• Parties: STATE ex rel. WEATHERLY et al. v. BIRMINGHAM WATERWORKS CO.
• Court: Alabama Supreme Court

64 So. 23

185 Ala. 388

STATE ex rel. WEATHERLY et al. v. BIRMINGHAM WATERWORKS CO.

Supreme Court of Alabama

November 25, 1913

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Quo warranto by the State, on the relation of James Weatherly against the Birmingham Waterworks Company. From a decree for defendant, relator appeals. Reversed and remanded.

Anderson and Mayfield, JJ., dissenting.

The information charges that the Birmingham Waterworks Company has severally breached said franchise contracts, dated June 2, 1888, and forfeited its right, franchise, and privileges thereunder, by acts and omissions as follows:

A. "Defendant's said ditch or canal through which it supplies water from Five Mile creek, runs for, to wit, five miles to a territory which is inhabitated by large population, to wit, 2,000, and located in said territory are railroad shops, dwellings, and outhouses, and also farms and dairies, with cattle and domestic animals, and portions of said territory, especially during periods of heavy rainfalls drained said ditch, canal, which, except for a small part thereof, to wit, one mile, is open and unlined, and the waters therein become polluted in various ways, and disease germs, bacteria, excrement, and other unwholesome matter are drained and deposited in the water in said ditch or canal in sufficient quantities to render the same unwholesome, in which condition it flows into said reservoir or basin at North Birmingham in said city, whence it is pumped by defendant into its said water mains in said city. Which said conditions have existed, to wit, three years next prior to the filing of this information, during which time the water which defendant has supplied to its water consumers under said contract in territory A, through said ditch or canal following the heavy rainfall, and during rainy periods, has by reason of the willful and long-continued neglect of defendant, not been wholesome."

J. "Defendant for, to wit, three months, commencing January 1, 1902, willfully neglected to furnish wholesome water to many, to wit, more than 500 of its said consumers, of water for domestic purposes in said territory A of said city."

K. "The defendant for, to wit, the months of October, November, and December, 1912, willfully neglected to supply many, to wit, more than 20 families of its consumers water for domestic purposes under said contract in the southern section of said territory A, with water for domestic use in sufficient quantity for the reasonable use of same, for said purpose."

L. Same as K except that the time alleged is more than a year next prior to the filing of this suit, and from time to time, and on divers dates and occasions.

M. "The defendant for, to wit, the months of October, November, and December, 1912, willfully neglected to supply many, to wit, more than six, of the fire hydrants on its main, located at various points in the southern section of territory A, with water in sufficient quantity and pressure, for the reasonable use of same, whereby scores of buildings were deprived of adequate fire protection."

N. "Defendant for, to wit, more than a year next prior to the filing of this suit, has willfully required applicants for its water service in said territory A, under said contract for lots abutting streets on which its mains were laid, to lay or provide service pipes from such mains to the property line, at the expense of such applicants as the condition precedent to furnishing such water supply."

O. "The defendant has for, to wit, more than six months next preceding the filing of this petition, generally refused to provide necessary service pipes, at its own expense, for applicants for water service in territory A in said contract for lots abutting on streets on which its mains were laid."

P. "The defendant has for, to wit, more than three months next prior to the filing of this suit, willfully and persistently charged a part of its water consumers of water for domestic purposes in said territory A, over their objections, at meter rates instead of at flat rates set out in said contract."

Q. "By reason of the willful neglect of defendant, the water which defendant has supplied to its consumers of water for domestic purposes in said territory A under said contract, from said ditch or canal during, to wit, the three years next prior to the filing of this information, has at times not been wholesome."

R. Same as Q, except the time is laid at 12 months.

S. "By reason of the willful and long-continued neglect of defendant, the water which defendant supplied to its consumers of water for domestic purposes in said territory A under said contract from said ditch or canal, during, to wit, the 12 months next prior to March 1, 1912, was not wholesome."

T. Same as S, except the time laid is three years next prior to the filing of the information.

U. Same as S, except the time alleged are the months of January and February, 1912.

V. "The water which defendant supplied its customers of water for domestic purposes in said territory A under said contract from said ditch or canal during the months of January and February, 1912, was not wholesome."

W. Same as V, except the time was laid for three weeks commencing November 15th.

X. Same as K.

Y. Same as A, except the words "ditch or canal," where same last occur therein, they substitute therefor the words "waterworks mentioned in the section or paragraph of the information or petition marked fourth."

Z. Same as A with the same amendment as in Y.

Specifications B to I, inclusive, are the same as A, except that they vary as to the time and extent of the breach. Paragraph 6 is as follows: "That on, to wit, December 2, 1912, the board of commissioners of the city of Birmingham duly adopted an ordinance numbered 126c, declaring such franchise contract, dated June 2, 1888, and others, breached, rescinded, discharged, and annulled, which ordinance was duly published, a copy of which is made an exhibit hereto." The prayer was for writ of quo warranto or other appropriate writ directed to defendant, requiring it to show by what right of authority, if any it can, it is severally holding and exercising said franchises and privileges, and that upon a final hearing of this case a decree be entered declaring that defendant is unlawfully holding or exercising said several franchises and privileges, and that the said franchise contract be adjudged and declared severally forfeited and annulled, and defendants excluded from said rights, privileges, and franchises. There was also a general prayer for relief.

The demurrers were sustained and petition amended: (1) By substituting for the first three lines of paragraph 5 the following: "That the acts and omissions of defendant herein complained of are as follows, to wit." (2) By adding to the specifications at the beginning of each the following words: By reason, etc. (3) By striking out the last part of paragraph 6, and substituting therefor the statement that, notwithstanding the aforesaid matters and things, defendant is nevertheless continuing in the exercise of said rights, privileges, and franchises. (4) By changing the prayer so as to read and to show by what right or authority, if any it can, it is holding and exercising said corporate rights, privileges, and franchises, and to show by what warrant of law, if any it can, it is acting as a corporation, and that upon a final hearing of this cause your honor will adjudge and declare that defendant has, by reason of said matters and things hereinbefore complained of, forfeited its said corporate rights, privileges, and franchises, and that judgment be rendered against defendant, that it be excluded from said rights, privileges, and franchises and be dissolved. The demurrers were sustained to the petition as amended, relator declined to plead further, and there was judgment for respondent. The petition exhibits the legislative charter of the Birmingham Waterworks Company, and its franchise contract with the city of Birmingham, and also the ordinance of December 2, 1912, purporting to rescind and annul all contracts between the city of Birmingham and the waterworks company, which matters are sufficiently referred to in the opinion.

Romaine Boyd, M.M. Ullman, and George Huddleston, all of Birmingham, for appellant.

Frank Spurlock, of Chattanooga, Tenn., and Percy, Benners & Burr and London & Fitts, all of Birmingham, for appellee.

SOMERVILLE J.

The prolixity of the pleadings exhibited in this cause is such that detailed treatment is impracticable, if not impossible. Following the example of counsel, we shall undertake to discuss the pleadings only as they may be grouped under the several principles of law which we deem fundamental to a decision of the cause upon its merits.

The Birmingham Water Works Company was chartered by legislative act on February 13, 1885, for the express purpose of supplying the citizens of Birmingham and its suburbs with "an ample supply of good and pure water." See B'ham W.W. Co. v. Birmingham, 58 So. 204. Besides the general powers common to all corporations, the company was by this grant invested with particular franchises, including the right "to lay pipes and aqueducts for conducting its water, and for that purpose make excavations through any of the streets, alleys or public grounds of the said city of Birmingham by and with the consent of the corporate authorities of said city." Section 8 of the charter act specifies "that said company shall have the right to make contracts with individuals and corporations for the water to be supplied by it, and to charge for and collect such water rates and compensation therefor as may be contracted to be paid to them." Sess.Acts 1884-85, p. 415.

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