The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-05-12
FULL TEXT OF THE
COURTS DECISION
Result of Suit Against Birming-
ham Waterworks Company
CAN CHARGE METRE RATE
Consumers Must Pay for sprinkling
Lawns and Gardens, In Addition
TO That Paid for
Dwellings,.
CAN CHARGE METRE RATE

~ ioN 0ia ~
Dwellings.
Montgomery, May 1.-(Special.)-There
being wide interest In the result of the
suit of the Birmingham Water Works
company and the final holding by the SUI
preme court that it had a right to charge
meter rates for sprinkling lawns and gar
dens in addition to what is paid for the
dwellings, the opinion of Special Judge
Powell, which is adopted by the court, is
given below:
d. NJ Powell, special judge-Complain-
ants filed their bill under section 81 of
the acts of 1903, page $50, setting up the
violation of a certain contract entered
into between the parties on May 81 1885,
and seeking to enforce a compliance by
the respondent with those provisions of
the contract alleged to have been violated.
The contract which is in the form of an
ordinance, is set out as an exhibit to the
bill Under the terms of the contract, the
respondent was to furnish water to the
city of Birmingham and it's citizens, for
which It was to receive pay in accordance
with certain rates set out in the contract
The provisions relating to the rates are
embodied in section 70 of the contract and
the parts thereof material to a decision of
the questions involved in this case are as
follows:
Domestic Rates.
BE II 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. 90
Each additional room under ten........ /. 90
Each additional room over ten......... so
Water closet for private family ........ 800
Additional closet for same family or
servant ACKNOWLEDGEMENTS. 80
Bath tubs for private family .......... 400
1t is also provided in section II that the
company shall have the right to charge
for water by measurement at rates based
upon the number of gallons consumed
daily and the right Is reserved by the
company to put in meters at its option,
charging an annual rent therefor.
The bill AYERS that the water company
has failed to comply with and perform
the contract in certain particulars, among
them being the following
"B. The said company charges and de-
mands of consumers of the water of said
company, money at meter rates for a
reasonable use of said water in sprinklng
lawns surrounding. attached to and occu-
pied with their dwellings. and used and
enjoyed as mere amenities to said dwell
ings. where said consumers have paid the
scheduled domestic rates permitted by
said contract and charged by said COM
pany for the Use of water for their said
dwalliD0G wat 4,
In specification C and D in the bill are
set out other alleged viola lions of the
contract. the language in each being the
same as in specification b, except that In
specification C the violation consists in
charging meter rates for water used In
sprinkling Flower gardens and in speci-
fcation ID the violation set up is charging
meter rates for water user in sprinkling
pleasure gardens surrounding attach
ed to and occupied with the dwellings,
A demurrer was interposed by the re-
spondent to each of the above named
specifications setting up in substance that
respondent had the right under the con-
tract to charge meter rates for the wa
ter used in the manner set out in said
specifications, and that the domestic
schedule rates for dwellings, bath tubs
and water closets did not cover or in
clude water used in sprinkling lawns
flower gardens or pleasure gardens The
demurrer was sustained by the city court
and on appeal its sufficiency is the ques-
ton for decision in this court
A proper decision of the question al is
sue involves the construction of those
portions of the contract between the
complainant and respondent above set
out.
Object of Contract.
In the construction of all contracts the
object is to ascertain and, if possible, eff
fectuate the intention of the parties so
that performance may be enforced ac-
cording to the sense in which they mu-
tually understood it, at the time that
1t was made; and to ascertain the inten-
ton it is necessary, not only to examine
the instrument itself, but also to con-
slider the situation of the parties, the
subject-matter and the object it is in
tended to accomplish. Electric Lighting
company of Mobile VS.. Elder Bros. 115
Ala. las; Mayson VS.. Ala. Iron Co. 70
Ala. "a; Bishop on Contracts, pages $50
and 1897.
When a contract is susceptible of two
constructions, one of which will render 1t
unlawful and the other lawful, that con-
struction which will render it lawful will
be adopted. Clarke on Contracts, 593;
Bishop on Contracts, 1872.
An examination of the contract clearly
shows that it was the intention OF the
parties to secure to the citizens of Bir-
mingham water at reasonable and uni
form rates, without discrimination In ia
vor of or against any citizen or number
of citizens. This was one of the objects
sought to be accomplished by the parties.
Not only this a moral duty but it
was a duty imperatively demanded of
them by the law. A water company acts
| not as private, but as a quasi public,
corporation. 1T enjoys and must exer-
else its opportunities for gain, subject
to its obligation to the public that 1t
will supply water without unjust dis
elimination and at uniform rates to all
those along the lines of its mains,
| who apply and tender reasonable
compensation."-3O A. & Eng. Ency. Law
| end ed) 426. Referring to the principle
vs. Bienville Water Supply Co. 1870 Ala.
3si, it is said The principle announced
is reasonable and necessary. Without it
| the business interests and domestic COM
| fort of the community, so far as depend
ent on supplies such companies furnish,
| would be at their mercy and make them
masters, in this regard, of the city they
were established to serve AS said by the
| supreme court of North Carolina, A few
wealthy men might combine and, by
| threatening to establish competition, pro-
| cure very low rates, which the company
| might recoup by raising the price to 9TH
| ers not financially able TO resist-the very
| class which most needs protection of the
| law. The law will not and cannot toll
| crate discrimination in the charges of
! these quasi public corporations. There