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

fHlDknaIn. BEFORE 6dliu iHdAA1i PotaAAEo
were annexed. they all existed as In
dependent municipal corporations under
the laws of the state of Alabama, and
they were all, and each of Them au-
torized to contract with orator for a
supply of water for public and private
uses, and each of said corporations did
contract with orator for such supply
of water covering period of 30 years
from the date of each of the contracts
so made. All of said contracts are still
in full force and effect unchanged by
the compromise agreement and have a
number of years yet to run before
either of them expires Orator at
taches hereto as Exhibit f. copy OF
the contract with the city of Avondale
and alleges that the contract with each
OF said former municipalities is sub
stantlally like the contract with said
city of Avondale.
The fiat rate as stipulated in said
contracts are the same as the fat rate
stipulated In contract made by ordi-
nance No. &c, and the meter rates as
fixed in said contracts are, with some
limmateriaK exceptions, the same as the
meter rates fixed in the contract of
June 2, 1888. Orator AYERS that the
obligations of the former municipal
corporations named above were as
sumed by the defendant city when its
territory was enlarged under it's pres
ent charter so as to include them within
the present city of Birmingham; and
the obligation of defendant city to per-
NIT orator to charge the rates fixed in
said contract is violated by the or
dinance referred to In paragraph X1 of
this bill, and said ordinance is, there-
fore, void as to all that territory CO.
cred by said contracts.
Dollar Per Month Minimum
Il
tail. the provisions of all these con-
tracts which are referred to for their
contents, 1t is shown that under eacn
of them, orator was authorized to make
IT, charge for minimum meter service Of
$1.00 per month, provided 1t did not
exceed the fiat rate for the same period;
and to make multiple minimum charges
where two or more tenements were sup
piled by the same meter service. AS will
appear from an inspection of ordinance
No. 97-C the rates as set forth in these
contracts were reduced and supplanted
by uniform rate fixed for all water
supplied through the entire city. As
Ihereinbefore averred, il said ordinance
No. &c never became effective on ae-
count of the popular vote and repeating
resolution passed In consequence there
of, then all of these contracts are in
full force and effect and the obligation
to article 1, section 10 of the constitu-
ton of the United States.
XIV.
Orator further AYERS that by the COM
promise made with defendant city as set
forth in ordinance No &c and since the
rates therein agreed to were put in effect,
its actual income has been reduced about
$4,000 per annum. This reduction was
made Just following the decision of the
oett nf a oof a hnI6fnor
orator was obligated to supply water to
the Inhabitants living above its original
water levels at the rates fixed by the con-
tract of June g. 1888, although the same
were not remunerative BY the cut made
in the meter rates which orator is author
lied to charge by its contracts, with the
right given to each citizen to take his sup
ply of water according TO these rates, the
income of orator would be so reduced that
1t cannot, as IT believes, pay its fixed
charges and operating expenses. Under
the rates as fixed by said ordinance, II
orator can earn any return whatever on
the large investment made in it's water
works system, it will not exceed that per
cent which would represent the actual
depreciation of the value of its plant. It.
therefore. charges that said ordinance Is
confscatory in its character and will op-
crate to deprive orator of its property
without making it any compensation for
the same and contrary to that right which
all citizens have to earn just and rea-
sonable return on all their legitimate busi-
ness investments
Orator therefore, charges that said or
dinance is void because contrary to the
fourteenth amendment of the constitution
of the United States.
= XIV.
Has Eigteen Thousand Consumers
al ba
nected with its mains over 1900 CONSUME
ers of water being supplied either by the
fiat rates or by meter measurement, as
provided in the several contracts referred
to. Under the provisions of said ordi-
nance No. 119 G, orator will be subject to
arrest and prosecution at the instance OF
any one of these consumers whose rates
are not reduced as said ordinance re-
quires, and to an action for damages by
Zach and every one of them who does not
secure water at the price and in the man
her stated therein. A large number of
theee customers are demanding water at
the rates and in accordance with the pro-
visions of said ordinance, and IL their de-
mands are denied they will refuse to pay
and bring suits as may be authorized by
orators refusal to obey s1d ordinance,
and thus subject it TO numerous actions,
annoyances and loss. That the said board
of commissioners of the city of Birming-
ham will seek to enforce, and demand
that orator obey said ordinance and
threatens and intends by such power and
authority as 1t possesses and by prosecu-
lions to compel orator to comply with its
provisions, and orator will be put to great
and irreparabe damage and annoyance
in the transaction of the business which
it has the right to carry on under its
charter and contracts, without such in
furious interference
Orator, according to the terms of the
several mortgages executed by 1t TO secure
money to build and enlarge its plant, is
allowed to remain in possession of its
properties, but on condition that it pro-
teet the property and rights covered ~
the lien given to secure its bonds.
Orator is advised that it has right IT,
come into this court of equity to avoid
the multiplicity of suits, threatened, and
to protect its property. in its own behalf
and the lien in favor OF its bondhoders,
and because its remedy at law for these
purposes is wholly inadequate. The en-
forcement of said ordinance. by the nu-
merous suits and prosecutions threatened,
will work irreparable injury to orator
unless the same are enjoined by this
court.
Injunction Asked
wherefore, your orator prays the court