Weller v. City of Gadsden

• Citation: 37 So. 682,141 Ala. 642
• Parties: WELLER ET AL. v. CITY OF GADSDEN ET AL. [a1]
• Decision Date: 21 July 1904
• Court: Supreme Court of Alabama

37 So. 682

141 Ala. 642

WELLER ET AL. v. CITY OF GADSDEN ET AL. ^[a1]

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by W. H. Weller and others against the city of Gadsden and another to restrain the cancellation of a waterworks franchise. From a decree dismissing the bill, complainants appeal. Affirmed.

The facts averred in said bill, so far as are necessary to an understanding of the decision on the present appeal, are as follows: The complainants Mitchell and Weller were on the 11th day of November, A. D. 1902, granted a franchise by the city of Gadsden to build, equip, and operate a waterworks system, for the purpose of furnishing the city and its inhabitants with water. The complainants were granted the right by said franchise to use the streets, avenues, and alleys of the city for the purpose of laying mains, pipes and conduits, and erecting hydrants and fire plugs. The ordinance granting the franchise included a contract on the part of the city to take from complainants, when their waterworks were completed, a stated number of fire plugs at a certain rental per year. Complainants agreed to furnish the city with water free of charge for certain public buildings and fountains, and a stated amount for sprinkling the streets of the city. There are other stipulations in the contract which are not necessary to mention here. The ordinance provided that, in consideration of complainants carrying out the stipulations set forth in the agreement, the city of Gadsden granted to appellants the exclusive franchise to use the streets, avenues, and alleys of the city for a period of 30 years, to lay their mains, pipes, and conduits, fixing a maximum rate at which water was to be furnished the city and its inhabitants. By the terms of the ordinance contract Mitchell and associates were to deposit with the clerk of the city council the sum of $1,000, to be forfeited upon failure to complete the waterworks plant within the time specified. The work of construction was to begin on or before January 1 1905, and to be completed and ready for use by the 31st day of December, 1905. Subsequent to the passage of the ordinance, and before the filing of the bill in this cause, a certified check for $1,000 was deposited with the city clerk as provided. The ordinance by which the franchise was granted Mitchell and his associates was passed in November, 1902, next before the expiration of the term of office of the council passing it, which said term ended March 1, 1903. In March, 1903, another board of mayor and aldermen was elected and qualified. Before anything had been done by Mitchell and his associates in part of execution of the so-called contract, the city clerk, acting under instructions from the city council, tendered Mitchell $1,000, which had been previously deposited with him. A short while after the said $1,000 had been tendered Mitchell, the board of mayor and aldermen of the city of Gadsden passed an ordinance repealing the ordinance by which Mitchell and associates had been granted the franchise hereinabove mentioned. The appellants thereupon filed in the city court of Gadsden the present bill, the prayer of which was as follows: "That upon final hearing your honor will declare and decree the passage of said ordinance, which attempted to repudiate said contract, and to deprive orators of such use of said streets, avenues, and alleys, to be null and void, and that you will declare said ordinance to be null and void, and that you will therefore enjoin said city and said mayor and board of aldermen, their servants and agents, from the enforcement of said ordinance, and that you will further enjoin said city and said mayor and board of aldermen, their servants and agents, from depriving orators from such use of said streets, avenues, and alleys, and from in any way hindering or interfering with orators' such use of streets, avenues, and alleys; and if, in the relief especially prayed, orators are in any wise mistaken, they pray that your honor will grant them such other, further, and general relief as is right under the premises; and orators will ever pray." The respondents demurred to the bill upon several grounds, and also moved to dismiss the bill for the want of equity. On the final submission of the cause, there was a decree rendered sustaining the demurrers and the motion to dismiss the bill for the want of equity.

Burnett, Hood & Murphree and Dortch, Martin & Allen, for appellants.

J. J. Willett, Boykin & Brindley, and Lee & Lee, for appellees.

TYSON J.

By section 1 of an ordinance adopted November 11, 1902, the governing board of the city of Gadsden, to obtain for the use of the inhabitants of that city a supply of water for all purposes, granted to R. A. Mitchell, his associates, successors, or assigns, "the right and privilege to construct, maintain and operate waterworks for public and private use of water within said city, for a term of thirty years from the date of the completion of said waterworks," together with the right to lay pipes, and erect hydrants, fountains, and other structures and appurtenances, in any and all of the streets, alleys, lanes, parks, and other public places of and in said city, as they then existed or might thereafter be laid out or extended, and as might be requisite for the distribution of water, or the operation of said waterworks system. By section 2 of the ordinance it was provided that the conditions upon which the foregoing privileges and franchises were granted were made the subject of a contract between the said city and the grantees, which formal contract was thereby made a part of, and embodied in, the ordinance. After inserting the contract, it was, in conclusion, ordained "that the city of Gadsden, Alabama, hereby approves, ratifies and confirms the above ordinance and contract in all its terms and provisions"; and it was further provided how the "ordinance and contract" should be excuted, both by the city of Gadsden and the grantees and contractees, and it was duly signed and executed by both parties in the manner prescribed by the ordinance; R. A. Mitchell "for himself, his associates, successors or assigns," at the end of the ordinance, assenting in writing to all the terms of the ordinance contract, "with all its provisions, restrictions and requirements." In the formal contract, embodied in the ordinance, the undertakings of Mitchell and associates are set forth in 10 paragraphs. Briefly, and as far as is now necessary, their obligations may be thus stated: (1) To supply pumping engines; (2) to lay adequate mains; (3) when ordered by the city, to extend mains, and place additional fire hydrants thereon; (4) to furnish a supply of water from a designated source or sources, sufficient for present and future needs of the city and private consumers; (5) to place upon the lines of mains or distributing pipes not less than 60 hydrants, at such points as the city authorities may direct, for public use only, the city to first establish grades of the highways before pipes are laid; (6) to begin construction of the system 12 months before the expiration of the existing contract of the city with the Gadsden Waterworks Company, on or before January 1, 1905, and to complete same ready for use by December 31, 1905; (7) to discharge, when required, certain streams through hydrants, and to maintain a certain pressure, which test, if successfully made, will entitle them to an acceptance of the works; (8) to furnish water for domestic and manufacturing purposes at prices not exceeding a fixed schedule, and to furnish certain quantities of water for sprinkling, for drinking fountains, and for city buildings, free of charge; (9) to deposit a certified check for $1,000, to be forfeited if the work of construction is not commenced and completed within the stipulated time, which check, the bill alleges, was deposited by the complainants and collected by the city. Thereupon, in consideration of the agreements and obligations of the other parties (having already, in section 1 of the ordinance, made a simple grant of the right to construct and operate waterworks for thirty years, and to use the streets, etc., for pipes, etc.), the city of Gadsden stipulated, in four paragraphs of the formal contract, embodied in the ordinance, as follows: (1) To grant the exclusive right to construct and operate waterworks in said city for 30 years from date of acceptance, with a proviso that the franchise and contract might be revoked, at the option of the mayor and aldermen, whenever the works failed to furnish a proper and adequate supply of water, and such condition continued for three months; (2) to grant the right to enter upon the streets, alleys, etc., to lay pipes, erect hydrants, and do other necessary work of construction; (3) to pay an annual rental, for 30 years, of $42 for each of the first 60 hydrants set and put in use, and $40 for each hydrant on the extension of mains which the city may order; (4) to grant the right to make needful rules and regulations in regard to the use and waste of water, and to collect from consumers in advance a tariff of rates, not exceeding those specified. Delays in the beginning or completion of the work, due to certain named causes, are to operate as an extension equal to the time so lost.

The provisions of the contract which have mainly been the subject of discussion by counsel are the grant of the franchise to use the highways and public places of the city for the operation of the waterworks and the delivery of the water to the city and its inhabitants for the period of 30 years; the agreement that the grant of the right "to construct maintain and operate waterworks, and conductors," for the like time, shall be...