The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1912-11-12


ture. The contract was made deliberate
ly, and required orator during its exist
enee to supply water at prices not ex
ceedng the rates specified, whether sale
rates should become remunerative or not
as the future might determine The i'm
provements and extensions of said system
Of waterworks have. to large extent
been made not only upon the faith ano
credit of the contract aforesaid and the
rights thereby secured to orator, but OF
the DEGREES and Judgments hereinafter re-
ferred to wherein the validity of said
contract and the rights of orator there
under have been adjudged.
V
That one of the suits referred to above
arose in the following manner: On the
9th Gay of July 1898. the mayor and al
derrnen of the defendant city adopted an
ordinance repeating the ordinance con-
tract of June 3 1888. and reducing ora
tors rates as therein provided for water
supplied TO the city and to its inhabi-
tants. and also repeating all other pro-
visions of the city code which had been
previously adopted for the protection OF
orators vaterworks system. Immediate
ly after the rassage of the repeating or
dinance in 1895 orator filed its bill of
complaint in the chancery court of Jeffer-
son county. Alabama, against the mayor
and aldermen of said city of Birmingham,
alleging orators Incorporation as herein
before stated. the making of the contract
Of June 2, 1883 the erection and mantle
nance of the system of works provided for
therein, and ayerring that the ordinance
of July g. 1898. reducing the rates which
orator under its contract of June ., 1888,
was given the right to charge during the
80 years covered by that contract for
water supplied to the city and its inhah-
itants, impaired the obligation of orators
contract. and was therefore void under
the constitution of the United States.
Demurrer Interposed
TO this bill the mayor and aldermen { t
Birmingham interposed a demurrer. as
signing he following among other
grounds of defense:
Now comes the defendant, the mayor
and aldern en- of Birmingham, and moves
the court to dismiss the bill of complaint
for want of equity therein And without
tion to dismiss the bill for want of equity,
the defendants assign the following
grounds of demurrer thereto:
"First-The ordinance and contract
therein described is void for uncertainty,
in that the period of its duration is not
expressed.
'Seeond-For that the ordinance and
contract aforesaid is void In that it UNDER
takes and purports to grant an irrevoca
BILE special privilege to the complainant in
violation of section % of Article l of the
constitution of Alabama.
"Fourth--For that the bill sets up and
seeks to enforce in its entirety a contract
which is in part void for uncertainty, viz:
That part of said contract which provides
rates for water for domestic purposes. in
that the period of the duration of this
part of said contract is not expressed
Said suit was heard on the demurrer
and in an opinion delivered by the then
chancellor it was held that the said con-
tract of June q 1888, was not void for UNI
certainty, but was a contract fixing the
rates of all consumers for period of
80 years; that the city was author
lied to make and enter into said con-
tract and that the ordinance OF the
city undertaking to repeal the same
and to prescribe new rates was uncon-
stitutional and void as alleged in com
plainant's bill.
Injunction Sustained
The action of defendant to dissolve
the injunction which had been issued
in said. cause and the demurrer afore-
said were overruled.
On the 10th day of July, 1905, the
said bill of complaint was taken as
confessed by order then entered. Later,
and on October 81, 1905. defendant city
appeared and filed certain copies of TIE
action of the mayor and aldermen, from
which IT appeared that the ordnance
of July 6, 1898, had been repealed
whereupon said cause was dismissed
without prejudice to the right of the
complainant therein and at the cost
of the defendant. A copy of the tran
script in said cause is filed herewith
as exhibit "B" and made part hereof.
Soon after the rendition of the de-
cree overruling the demurrer as afore-
sad, the present stockholders pur-
chased and acquired the entire capital
stock of orator and have ever since
been the owners thereof, and acting
on their faith in the validity of said
contract as adjudicated in that and
ether cases, have improved and ex-
tended the waterworks to their pres
ent capacity, which is greatly in ex-
cess of the requirements of their orig
inal undertaking.
Since the decision first referred to
the city of Birmingham has brought
ether suits against orator for the pur-
pose of having construed those provi-
sions of the contract fixing the rates of
private consumers, and to compel ora
Tor to comply with the same as con-
strued; and divers suits have been
brought by Inhabitants of defendant
city to compel orator to furnish water
as said contract provides.
The questions involved in these cases
have depended on the continuous char
acter of those provisions of said con-
tract prescribing the method and
charges for supplying water for do
mestic and other purposes, and in all
Of them the validity of said contract
has either been admitted or adjudicated
and Ii has been held to be a subsist-
ing contract fixing the method and rate
for supplying water for all private
uses.
800 Feet Limit
That in the contract made on the
q, day of June, 1888, there was no
provision for supplying water either
for public or private use on the slope
Of Red mountain at higher eleva-
ton than 800 feet above the city
datum. Orators system of works was
constructed on the specification in the
original contract that the surface level
Of water In the reservoir designed 10
supply the city should, when full be
not less than 800 feet and never al
lowed to fall below 200 feet above the
city datum. But as the city has grown
many houses have been built above
the height stated, which could not be
supplied except by the erection of a
separate system of works. Orator con-
tended that owing to the specifications
in the contract of SIS fixing the water
levels to be maintained in the reser-
voir, it was not bound by that agree
Inent to supply water for domestic
purposes TO the people living above
those levels at the flat rates as fixed
therein. The city insisted that this was
a part of orators duty under that
contract Under these circumstances
an agreement was made on the 18th
day of March, 1909, requiring orator tc
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