The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1912-07-08
LEGAL ASPECTS OF
WATER AGREEMENT
CarmichaePs Decision When
Matter Was in Courts
CITY LOST IT'S CASE
Court Held that Arbitrary Change in
Rates by City Was Unconstitu-
tional Because it Was I'M
pairment of Contract
by cHAs. II. MANDY

by thAss n. MANDi
| Since the passage of the ordinance by
the city I commissioners modifying or
changing the schedule of water rates for
the city of Birmingham, much discuss
sion has been had relative to the merits OF
the case. There are those who consider
the new agreement a good one inasmuch
as large concessions are made without any
renewed obligations on the part of the
city.
It is being opposed by some who hold en-
tlrely different views.
il is contended that the city has no au-
thority to change the schedule OF water
rates unless by mutual agreement.
prominent attorney In speaking of the
matter said.
ION May 81, 1888. the mayor and alder
men of Birmingham duly passed and
adopted an ordinance. making a contract
with the said Birmingham waterworks
company to supply the city and its inhab-
itants with water. This ordinance was
duly signed by the mayor, authorized 10
act for the city and in its behalf, and by
the said waterworlks company on June
2. 1883. and was in all things ratified and
approved. This ordinance is entitled. An
ordnance to provide a more efficient sys-.
tenn of waterworks for the city of Blr-
mingham, Ala and was made up of -
sections
Section y prescrbes and fixes the max
imum rates for Water for domestic pur-
poses. or that used by private consumers.
from July l. 1855
Section IA reads; BE it further or
dained that when the waterworks herln
provided for are completed as stipulated
for by said contract, 1t shall be obligatory
OH said city TO use the hydrants of said
waterworks and TO pay sor the same. as
herenbefore provided, during a period
Of 30 years
"The contract went into force and eff
feet at once, and is the contract which
Is now in operation.
Council Adopts Ordinance
ION July 6, 1898, the city council adopted
an ordinance materially reducing the
schedule of water rates, as follows:
BE 1t ordained by the mayor and al
dermen of Birmingham, that the ordi-
nance adopted May 81. 1888. and entitled,
IAN ordinance to provide for more en-
fcent system of waterworks for the city
of Birmingham be and the same is here
by repealed They also adopted on said
day an ordinance declaring: That from
and after July ], 1895, the domestic rates
for water furnished the city OF Birming-
ham shall not exceed the following rates.
Then followed schedule of rates much
lower than the rates fixed by section u
of the contract between the city and the
waterWorks company.
1.-THE waterworlSs company resisted the
attempt to lower the rates arbitrarily and
took the matter to the chancery court.
"On January 8, 1899, Judge John C. Car
michael rendered a decision In favor or
the waterworks company and granted an
Injunction against the city to restrain
the enforcement of the ordinance of July
s, 1898.
Carmichaefs Decision
Judge Carmichael handed down a
lengthy opinion In which many authori-
ties were cited, and concludes with the
following paragraphs:
4" 1t was essential not enly TO protect
the property and water Of the company
from considerations of regard TO its inter-
est. but also for the proper regard for the
comfort and health. and protection OF the
property, OF the citizens of Birmingham
These ordinances were eminently proper
to be adopted, and were obviously neces-
sary to enable the water company to carry
out and perform the duties imposed upon
1t by the contract. as well as for its own
protection
That the ordinance of May 81. 1888. Is
such contract, and grants OF franchise
that Is within the protection of the state
and federal constitutions, prohibiting the
making of any law im2airing the obliga.
ton of contract. cannot be seriously ques-
toned.
1T follows from the foregoing discus
sion that the contract between the com.
plainant and the city of Birmingham evil
denced by the ordinance of MAY g. 1883
is for a period of 80 years; that the pro-
tective ordinances, enacted I'm pursuance
OF the contract are part of the same. and
binding upon the city: that the ordinances
of July s 1888. are void. as impairing tho
obligation of the contract that an injunc-
ton will lie to restrain the enforcement
of said void ordinances, and that there
fore the motion to dismiss the bin for
the want of equity. and the demurrer, are
not well taken, and a decree will be en-.
tered accordingly overriding them, au1
the motion TO dissolve the Injunction