The Birmingham age-herald., 1906-07-05
STATEMENT MADE
 BY CITY ATTORNEY Summarizes Conflict Between City and WaterwOrkS Co., CHARGES BY ESTIMATION Says Practically Speaking Water Com pany Should Install Meters Meas
 uring Only sprlnkling-Lia-
 ble for Back Charge.
CHARGES BY ESTIMATION

company to collect the sprinkling tax City Attorney Ed D. Smith has given out the following statement; "The provisions of the water works contract as to prices are as follows: Section 12 Be it further ordained, that from the first day of July, 1888, the do- nestle rates for water furnished under this contract to the citizens of Birming- ham shall never exceed the following rates per annum, viz:
 l Dwellings of three rooms or less, $S. | Each additional room under ten $l. l Each additional room over ten, 50 cents. | Water closet for private family, So. l Additional closet for same family or | servants, $2.50
 l Bath tubs for private family, S4 The company shall have the right to charge for water by measurement at rates not exceeding the average rates named l below.
 Measured water will be charged for as 1 follows:
 For daily consumption of 1000 gallons l or less, 30 cents; 1000 to 1900 gallons 27Ha cents 1500 to 20o0 gallons, 9 cents; 20O0 to 5000 gallons, 22Ha cents 5000 to 1000 gallons, 20 cents; 4O00 to 5000 gallons, 17Ia cents 1 In excess of 5000 gallons daily for first 5000 gallons daily, 15 cents per 1000; second 5000 gallons daily. IA cents per 1000 third 1 5000 gallons daily. 13 cents per 1000; fourth 5000 gallons daily, P cents per 1000; fifth 5000 gallons daily, Il cents per 1000; sixth 5000 gallons daily. 10 cents per 10O0 seventh 5000 gallons daily, 9 cents per 1000; eighth l 5000 gallons daily. cents per 1000 All in excess of 40000 gallons, cents 1 per 1000 gallons
 The company reserves the right to put l in meters at it's option for which an an- nual rental will be charged as follows:
 one-half inch meter, per annum, 8 1 Three-quarter inch meter per annum, So. I One inch meter. per annum, $.50 | One and one-half inch meter, per an- l mum, SIP
 l Two inch meter, per annum, s20 Ihree inch meter, per annum, $31 Four inch meter, per annum, $50. Original Idea of Contract. l ''It was the idea of the administration that the terms of the contract, providing for flat rate for dwellings, covered the use of water for sprinkling lawns and flower gardens. as well as other domestic | uses. So that, the water company having taken poZton adverse to this idea. and I charging for sprinkling lawns and flower 1 gardens amounts in addition to the l charges made and paid by the consumers
 who paid the dwelling rate; suit was l brought by the Mayor and Aldermen in
 the city court for the purpose of trying
 to enforce the contention of the city.
 This suit was determined adversely to 1 the city in the lower court and an appeal was had to the supreme court of the state.
 Appeal to Supreme Court.
 Tt had already been held by that trl- bunal and it seems to be undoubtedly l mir ba hot oil water used is to be paid for by water rate except in the specified instances in which fiat rates are provided, includ- i ing dwellings, bath rooms, etc. Therefore the sole question, in this connection, pre- sented to the supreme court was whether or not the water used for sprinkling was included in the word dwelling If it was, then the flat rate being paid for in | the dwelling there remained nothing to pay for sprinSling. If 1t was not, then sprinkling, not being especially excepted in the contract could be charged for by | the meter rate. whcih Is above set out
 "This question having been presented to it, the supreme court rendered an opinion The majority holding that dwelling in- cluded the sprinkling use. An application | TOT u GeIledTlilS, dS diioWtu tlc rules of the court, was thereupon made l by the water company, but am informed that 1t ceased for the time to make the | sprinkling charge.
 Pending the hearing of the applica- tion Chief Justice Mcclellan died and Hon. S. B. Weakley was appointed to fill his place. Chief Justice Weakley, hav- | ing withheld the payment of some sprinkling charges, awaiting final de- | cision of the case and prior to his ap- pointment was disqualified from sitting. The supreme court was again divided 1 when the matter was now called up, this time equally, neither side having a ma jority Thereupon the governor, as re- | quired by law, appointed a special justice to consider and hand down an opinion In the case. His selection fell upon D. M. Powell. of Greenville.
 Justice PoweII's Opinion.
 Special Justice Powell considered the case and rendered an opinion in it, re- versing the previous opinion of the su- preme court. Holding that dwellings did not include sprinking, and that the water company has the right to charge for water used for sprinklng by meter rate. This is now the law.
 AS to the practical part of the mat ter:
 Strictly speaking the water company should put meter each faucet or pipe line used for sprnkling, in such manner as that 1t shall measure only the water used in sprinkling, should charge the annual meter rental above provided for. and in addition thereto the rates for ! the water actually used as aso above pro- vided. And the consumers should pay in 1 this manner.
 No one who has not used water for sprinkling and who does not propose to do so is liable for the sprnkling tax in any form.
 Consumption Now Estimated. q understood that what the water com pany is now doing is that 1t is operating the charge. or rather estimating 1t. and instead of putting in the meters, etc, it is making flat or abritrary charge based on the amount of water that will be used, estimated according to the area of the lawn or garden.
 Personally shall accede to this latter