The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-05-12

poorer or less fortunate class of citizens
| Without the restrictions above referred
to, the Mayor and Aldermen OF Birming-
ham could have contracted with the wa
ter company for a water rate of so much
for each dwelling without reference to the
size or number of rooms with the result
that the owner of the residence of III
teen or twenty rooms with spacious
lawns, flower and pleasure gardens would
be enabled to obtain a very low rate at
the expense of fastening a very burden
some and unjust rate upon less FORUM
ate neighbour the owner Of a cottage
with three or four rooms, without lawns,
pleasure gardens or flower gardens.
Rights Must Be Expressed.
In principle the evils above referred
to would be the same, If the construction
placed upon the contract in this case by
complainant be correct. No duty can be
imposed by nor can any right arise out
of contract unless the same be expressly
or by necessary implication authorized by
its terms. If the contention of complain
ant be sound. the contract should be
construed just as though there were ex-
pressly embodied in section Il. after the
word dwelling, the words, including
also lawns, pleasure gardens and flower
gardens" With the contract thus con-
strued, the occupant of a dwelling con-
tanning eight rooms to which was at
taehed an extensive lawn, a pleasure
garden and a flower garden, requiring
fully as much water as the actual needs
of the dwelling proper, would pay S13 per
year for his water while his neighbor,
occupying a dwelling with the same num-
Der of rooms but without a lawn, pleas
ure or flower gardens and using only
one-half as much water would have also
nv mo xino bo
burden twice as heavy on him. destroying
uniformity of rate and establishing the
most unjust discrimination. In the alb
senee of averments to that effect and, TAX
ing the allegations of the bill most strong
~ against the pleader. 1t cannot be pre-
sumed that each dwelling in the city of
Birmingham has attached to it lawn,
a pleasure garden and a flower garden,
or either: nor can 1t be presumed that
the quantity of water reasonably required
for sprinkllng them would be substan
TALLY the same for each lawn or garden
attached to each dwelling. Indeed. 1t
may be said to be a matter of common
knowledge that the dwellings in the city
of Birmingham. well as in other cities
of the state differ in size; that the lawns
and pleasure and flower gardens attached
to them materially differ in area and
that some of them are virtually without
lawns or flower and pleasure gardens.
This being true, the quantity of water
required for sprinklng purposes would
necessarily vary, ranging from inconsid-
cradle to large quantities, according to
the area of the lawns and gardens as
well as other conditions. arising from
drouth character of plants, grasses, etc,
requiring a more or less extensive uses
of water for sprinlxling purposes. Such
being the case. the parties to the contract
could not have had in their minds that
the rate for dwellings based upon the
number of rooms in the dwelling should
include lawns. and flower and pleasure
gardens unless they also intended that
the occupant of a dwelling without lawns
or flower and pleasure gardens should
pay as much as the occupant of a dwell
ing with the same number of rooms to
which there might also be attached
lawn and flower and pleasure gardens.
If this was their purpose and the con-
tract expresses 1t, such a provision. as
shown by the authorities above cited
would be invalid. 1t will be presumed
that the parties intended to make legal
rather than an Illegal contract. and that
the rates fixed should be not only rea-
sonable, but. having the requirements of
the law in view, that they should also he
this be true, the intentions of the parties
could never be carried into practical eff
| feet by enforcing occupants of dwellings
without lawns or pleasure and flower
gardens to pay the same rates as the
occupants of dwellings with the same
number of rooms, to which We're also at
tached lawns pleasure and flower gar
dens. requiring for shrinking purposes
large quantities of water, in addition to
the water consumed in and about the
dwelling proper. A reasonable rate, in
such case to the occupant of a dwelling
with lawns and gardens, would necessa-
rily be unreasonable to an occupant of
dwelling with a like number of rooms
without lawns and gardens.
Fixing of Rates.
In fixing the rate for dwellings. it was
| evidently in the minds of the parties, that
| the quantity of water consumed for do
nestle purposes, outside of water closets
| and bath tubs, by the occupants of dwell
| ings of three rooms or less, would be
| substantially the same for each dwelling,
with a corresponding increase for each
| additional room in dwellings of more
| than three rooms. Placing this construc-
| ton on the contract, practical uniformity
| of rates, without unjust discrimination,
| can be secured and. In the absence of
| averments in the bill to the contrary, 1t
| will be presumed that the rates estab-
| lished by the contract are reasonable.
| In determining what construction shall
| be placed upon the term, dwelling as
used in the contract, it Is only neces-
sary to decide what meaning the parties
| to the contract intended should be given
| to it, This meaning, of course. must be
| gathered from the contract Itself and the
| connection in which 1t is used in other
parts of the contract, the rule being that
| words should be given their ordinary
| meaning, unless it appears from the con-
tract that a special meaning is intended.
| brush Electric Light and Power company
| VS.. City Council of Montgomery ia Ala.
| 433). The word dwelling Is not used in
| its broadcast sense in the contract. On the
| contrary, 1t is qualified by particular
words of description, the rates being based
upon dwellings, of three rooms or less and
so much for each additional room. The
expression, dwellings with three rooms =
| carries at once to the mind what is meant,
viz: building with three rooms, without
! any suggestion whatever of lawns flower
| gardens or pleasure gardens. The rule is,
| that courts will restrict the meaning or
| general words followed by more specific
and particular descriptions of the sub
| iect-matter to which they apply. CLARK
| on Contract, 592; Bishop on Contracts, 406;