The Birmingham age-herald., 1913-11-26

cision yesterday in the case of the city
of Birmingham, by Commissioner James
Weatherly. Us. the Birmingham Water
works company.
The decision was handed down at 1903
O'Clock yesterday morning. In yesterday S
Age-Herald it was predicted that the de-
eision would be made at 10 o'clock this
morning
s When the case came up for trial in
the lower court. Judge Crow ruled that
the city had not made out case in that
even if ii could prove the count set fotrh
in the bill of complaint that they would
not be sufficient to annul the franchise.
In doing this the supreme court declares
the lower court erred.
The result of the decision is that the
case will now be tried on its merits and,
further, that If any of the counts against
the waterworks company are proven by
the city that the company's franchise will
be annulled.
Water rates and services is at the bot
tom of the whole controversy. The com
missioners hope to regulate water rates
through annulling the company's fran
chise and regulating rates before an
other franchise will be granted. Superin-
tendent d. J. O'Connell of the water
works company, stated that he had moth
ing to say about the decision until a
full copy of the decision was examined
City Attorney Romaine Boyd, who has
conducted the city's fight against the
waterworks company under the general
ship of Commissioner Weathery, was
highly pleased with the decision Mr..
Boyd received a full copy of the decision
at o'clock last night.
The case was argued before the su-
preme court by City Attorney Boyd for
the city and Walker Percy and Attorney
Spurlock for the defendants. The water
works company was represented in the
case by Spurlock & Brown of Chatta-
nooga, Tenn, Percy, Benners & Burr of
this city, and London & Fits of this
city.
The case was handled for the city by
Attorney Boyd, Assistant City Attorney
Monte Ullman and George Huddleston.
Court Reversed Itself
An interesting feature of the case is
that In rendering the decision the .su-
preme court squarely reversed itself in
one phase of the decision. The opinion
was written by Justice Ormond Somer-
vile, and was concnrred in by Chief
Justice Dowdell and Justices Mcclellan,
Sayre and deGraffenreid. Justices May
field and Anderson dissented, although no
dissenting opinion was written.
Attorney Boyd has worked extremely
hard on the waterworks case. He has
spent much time in preparing briefs and
citing cases to prove his arguments. The
briefs of both sides in the case have
been voluminous. The waterworks COM
pany has contested every step of the
fight so far While in Boston last sum-
mer, Br. Boyd discovered one case which
he cited before the supreme court, and
which he has stated he believes had
great weight.
The history of the suit is familiar to
almost everyone The waterworks litiga-
ton started when the city commissioners
adopted an ordinance lowering water
rates and the waterworSs company Sc
cured an injunction in federal court, by
which the city was restrained from en-
forcing these rates. The city then filed
a counter suit, which is this quo war
ranto proceedings, but when it came up
for trial before Judge r.. G. Grow of the
circuit court. he sustained the demurrers
of the waterwork's attorneys and the
case went to the supreme court
The supreme court held that this be-
ing an action in the name of the state
to forfeit a franchise or dissolve cor
poration, that quo warranto was the
proper tremedy. and that the complaints
filed in the case We're sufficient to state
cause of action under either section
$3.50 or 1853 of the code. Section $3.50 re-
lates to the forfeiture of a charter and
section 5463 relates to the forfeiture of a
franchise contract
This is the first case in which the su-
preme court has decided the question of
whether action to forfeit a franchise
could be Sustained under section 5463. 1t
held that section 3513 providing a special
remedy to be pursued by municipalities
against public utility corporations had
no reference to an action by the state as
in this case.
Causes of Action
The particular grounds on which the
court held that the complaint had stated
a cause of action are as follows:
l. Supplying unwholesome water.
.. In charging meter rates instead of
flat rates as set out in the franchise con-
tract, and
3. Repeated refusal to supply a num-
Der of consumers with water upon rea-
sonable and proper demand
On the other hand the court held that
the failure to supply water to a half
dozen fire hydrants would not alone be
sufficiently vital to warrant a forfeit
ture of the franchise, although same
might be considered in combination with
other abuses The court finally held
that the failure to provide service pipes
in view of the unsettled law in this state
on this point would not constitute a
cause of action in quo warranto If done
in good faith under bona fide claim of
right. However, the opinion states that
the great weight of authority in other
states seems to recognize and impose such
a duty on public utility companies and
it is intimated such would be the de-