The Birmingham age-herald., 1914-06-28
CROWS DECISION IN WATERWORKS CASE !. IS ADVERSE ID CITY Imposes Costs of Suit on the Defendant-Meter Rates
 Prohibited
WILL BE APPEALED
 TO SUPREME COURT
City Sought to Revoke Franchise of Company, Alleging Impure Water and Inefficient Service-Hearinp
 Occupied Court Two Weeks

waterworks company was rendered
 yesterday by Judge E. c. Crow of the circuit court in the quo werranto pro-
 cedings brought by the city of Bir-
 mingham in an effort to annul its char
 ter and franchise
 l The proceedings were brought in the
 name of the state of Alabama ex rel
 James Weatherly, commissioner, in
 which the city sought to revoke the charter of the waterworks company on the grounds that the company had failed to provide pure water to the citizens of Birmingham and had failed to provide proper service.
 The hearing of the case occupied tho court about two weeks, and much testi-
 mony was taken. including that of some of the most noted water experts of this continent. The city was repre- sented by Capt. Romaine Boyd and G.
 R. Harsh. the waterworks company by Walker Percy and Augustus Benners.
 An appeal to the supreme court win be taken.
 l The opinion and decree of Judge
 Crow is as follows:
 Statement of Case
 1 State of Alabama, ex rel. James Weath-
 erly and James Weatherly, Complain 1 ant, vs. Birmingham Waterworks Com 1 pany, Respondent-No. 3493-A. In the l Circuit Court of Jefferson County, Ala | bama.
 | This Is an amended information by the complainant, asking the court to adjudEe
 and declare that respondent has. by req l of fha in complained of, or by reason of any part
 thereof. which the court may deem suffi- cient for said effect, forfeited its privi- l leges and franchises. and that judgment
 be rendered against the respondent: 1 That it be excluded from said rights. privileges and franchises, and for such other, further and general relief as the
 nature of the case warrants or demands, | and as to the court may seem right in the premises;
 l And the allegations of the first, second, third and fourth paragraphs of said amended information having been admit l ted by respondent and the respondents
 demurrers having been sustained as to 1 specification (gg) of paragraph five of said amended information, and the re- spondent having plead the general issue. with leave to give in evidence any testi-
 mony material to its defense as though specially pleaded;
 | Aflu cOInpldlIdilt ndNinS, III Wf1tiHSt it-
 quested special finding of the facts in said cause, separately and severally as l to each count of the information In said cause. as last amended
 | Coming to the merits of the case, they
 are resolved into four main questions, viz:
 l u) Is respondent guilty of wilful and
 long continued neglect to furnish whole some water to it's consumers under it's 1 contract dated June g. 1SSS with the city of Birmingham, in territory "A, (consist- 1 ing of all the territory in the present cor porate limits of said city outside of the territory formerly embraced in any for
 mer incorporated city town subse-
 quently annexed to- or absorbed by said city of Brmingham), from the basin or reservoir of North Birmingham in said 1 city, for three years next prior to the fl- ing of the original information in this | cause on, to-wit January 1, 1913, as charged in specification fa) of paragraph /, five of said amended information, and for
 shorter periods of time within said three years, as charged in specifications (b). 1 (c), (d), (e), CD, (g), th) (D, (q), T), (s). | (t) and (u) of said amended information? l CD Is respondent guilty of wilfully and persistently neglecting during one year next before October 1. 1912. to supply large number. to-wit. 12 families of its
 consumers with water for domestic pur poses under said contract in said territory "A in sufficient quantities for the req sonable use of same for said purposes, notwithstanding respondent had received and accepted payment for so supplying said consumers. as charged fin specified | ton tx) of said fifth paragraph of the amended information?
 | C3) Is respondent guilty of wilfully and persistently for more than three years next prior to the filing of this suit, charg-
 Ing some of it's consumers for water for domestic purposes, in said territory "A, over their objection, at meter rates. when 1t was reduired by It's said contract to
 supply said water at flat rates, as charged | in specification (n) of paragraph five of | said information?
 1 (4> Is respondent guilty of violation of
 ordinance 126-C a s chareed In the sixth
 paragraph of said amended information? Opinion and Finding of the Facts | Is respondent guilty of such wilful and persistent defiance of its obligations to the public as would justify the court in 1 depriving 1t of it's franchises. privileges and rights under it's charter?
 l This suit cannot be maintained unless | the respondents conduct prior to the time | it was brought justified the relief prayed: but 1t Is true that in this case. unlike most l other cases. acts occurring since the insti- l tuition of the suit may be considered by | the court to determine whether or not the case calls for the exercise of Judicial clemency, but no judgment against re- 1 spondent can be predicated except upon conditions existing at and prior to the time the suit was brought.
 After careful consideration along broad 1 lines of the voluminous amount of testi- monv. and after hearing the able argu- ments of counsel. together with consider | ation of their briefs the court Is frank to | say that in it's opinion. based upcn the l testimony of many leyrnen, and ohvsi- 1 clans of high standing. including that of Dr. Robert Nelson. who until cu're re- gently was city health officer or ps~m'r~- ham for a number of years. ard on the | overwhelming evidence nf the saveral sr~- ,tarfans and water experts taken in this case. the water now. and for. to-wit the | last two years. furnished by respondent | to it's consumers from it's Five Mile creek and Cahaba and Little Cahaha rivers sr,n- niles and filtration plants. is reasonably and substantially 'clear wholesome and suitable for all domestic and or riinary quantity for the use of the city of Bir- mineham and its inhabitants" as required | by it's charter contract.
 And in the case of Scott vs. United States Endowment and Trust company. I 1l0 Alabama. 621. our supreme court says: "It is to be observed thst courts pro- | ceed with extreme caution in proceedinss which have for their object the forfeiture of corporate franchises. and forfeiture win not be allowed except upon express | limitation, or for a plain ahure of power l bv which the corporation fails to fuldll ] the design and purpose of it's organixa- tion:"
 Citing State ex rel Johnson VI. South