The Birmingham age-herald., 1914-06-28
CROWS DECISION IN
 WATERWORKS CASE
 IS ADVERSE TO CITY
toontinued from Page Five,

ern B. & l.. Association, 132 Alabama 5o 51; and also asys:
 'Substantial performance of conditions is all that is required:"
 Citing note by MT. Freeman Amer fcan State Reports, page 1s1.
 The respondent contends that by closing the open space or ditch along said Five Mile creek canal at a cost to 1t of to-wit, Sl0o,oOO, and by the means of filtration, coagulation and the use of hypochlorites ethe last remedy having only passed the experimental stage during the year 1912, as disclosed by the evidence in this easel, its water SO furnished to it's consumers meets the requirements of its contract.
 The respondent further contends that on account of the unusual and unexpected growth of the city of Birmingham along the sides of Red mountain, where com plainant charges that 1t wflfully and per- sistently neglected during one year next before October 1, 1912, to supply a large number, to-wit, 12 families, with sufficient water, etc. (high service), it tried to an- ticipate said rapid growth in said section or the city, by the erection and main- tenance of tank on Sycamore street in said city and later by the erection and maintenance of a still large tank on top. or Red mountain, and the relaytngs Of their pipe, at a great expense to{ 1t. of. to-w1t, S175.000 thereby furnishing suffi- cfent high service to all residents on the slope of Red moINtain, in view of the testimony of aHf witnesses upon this question, living along said slope that they have had no cause of complaint along this line since this was done.
 Contract of 1888
 And that under it's said contract made on the 2d day of June, 1888, with complain ant, there was no provision for supplying or hat fAw
 the slope of Red mountain at a higher elevation than 320 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. ex- cept by the erection of said separate sys tenn of works, and that owing to the speci- heat1ons in the contract of 1888. fixing the water levels to be maintained in the res ervoir. 1t was not bound by that agree ment to supply water for domestic pur poses to the people living above those levels at the flat rates, as therein fixed.
 But the city insisted that this was part of respondents duty under the con- tract, and under these circumstances an agreement was made on the 11th day of March, 1909. requiring respondent to erect and maintain on the slope of Red moun- tain, at a height so that the bottom should not be less than 475 feet above the city datum tank or reservoir of a ca- pacity of 25,000 gallons, to be supplied with pumping machinery capable of delivering from the main of the company 100000 gallons of water in "A hours, the whole to constitute separate system from the works then being operated.
 And in consideration of respondents undertaking to build and operate this sep arate system of works, the city agreed, among other things, as an inducement to secure the building of this high service plant, that until the first day of January. 1921, respondent should have the right to charge exclusively by meter measure ment for all water furnished for private rses, at given schedule of prices
 Respondent contends in view of the facts stated it is not guilty of wilful and persistent violation of the city ordinance l26-C, especially until after the question as to whether or not it had right to charge by meter rather than flat rates in said territory had been judicially deter mined, which has only recently, on, to- wit, within the last 60 days, been so de- termlned by the United States court of appeals, since the institution of this pro- ceeding.
 The complainant replies to these two contentious on the part of respondent by saying as to the first: That the canal was not closed in until after this suit was brought;
 Ahu' as to the second, That the high service was not supplied until after the city council of Birmingham had passed an ordinance introduced by Alderman Henry B. Gray, threatening legal pro- ceedings against it to require high serv- Ice along the slope of Red mountain. and in effect that, quoting the words of the able and lamented Chief Justice McClel- Ian in the case of the Capitol City Water company vs. the state ex rel. Mcdonald, loo Alabama, 434, Tt is not harsh to say the future cannot be contemplated with out grave apprehension that when the sword of the writ no longer hangs over its life" the respondent will in the fu- ture be wilfully and persistently derelict in It's performance of it's duties to the public, under said contract. but in the Capitol City case it will be noted that the respondent enver did comply with the terms of its contract.
 Past Sins RectificiaI
 The court is of the opinion that under the evidence in this case as regards these two questions of respondents wilfully and persistently neglecting to furnish wholesome water, and in sufficient quan- titles (high service), that these are past sins. if any, which have been substan- tially rectified, rather than present or fu- ture ones, and that under the law, as stated by the supreme court of Alabama