The Birmingham age-herald., 1914-06-28

in the case of Scott vs. United States En- dowment and Trust company 140 Alabama 621,
 "To deprive it (the corporation of it's right to enjoy it's franchise would doubt less entail loss upon it's stockholders, penalty that should not be imposed upon them when no public good would be sub served by it. And especially is this true when 1t cannot be affirmed without some misgivings, that they have not been guilty of a wilful abuse of the franchlse granted to them."
 And the court Is of the further opinion that no public good would be subserved by depriving respondent of it's right to enjoy its franchises and privileges under US charter contract with complainant, espe- cially considering that in reply to ques- tions propounded by the court to the vari- ous water experts, seeking how, If possl- ble, the purity and whoesomeness of the water furnished by respondent to it's con- sumers could be improved, and no sug- gestions were offered by them, unless that hypochlorites in proper quantities night be added to the filtered water from the Cahaba rivers, they already being in use at the Five Mile creek canal filtration l plant
 But in view of the fact that Five Mile | creek canal was not closed in until after | this proceeding had been begun. and in | view of the further fact that this high pressure service from a tank on Red mountain vast not installed until after l the passage of an ordinance by the city | Threatening respondent with a legal pro- 1 ceeding to force 1t to give high service which Is not denied by respondent, the | court is of the opinion that respondent
 should be taxed with the costs of this proceeding.
 Meter Rates Judicially Determined l Now, as to the other two questions, to- wit: Three as to respondents charging l by meter rather than flat rates; and, 1 four, as to the violation of the ordinance 126-C, the court Is of the opinion that until the question of respondents right to charge by meter or nat rates has been l judicially determined, respondent should not be deprived of it's franchises and priv ileges until said question had been de- | oided, which as before stated, was de- 1 termined by the court of appeals within, l to-wit, the last 60 days; consequently, 1t should not be punished for violation of ordinance 126-C when we consider, as stated in the Scott case, supra: "It is to be observed that courts pro- ceed with extreme caution in proceed | ings which have for their object the for l feiture of corporate franchises, and a | forfeiture will not be allowed except upon
 express limitation, or for a plain abuse of l power by which the corporation falls to | fulfill the design and purpose of It's or | ganization,"
 Citing State ex rel Johnson vs. South edn B. & l., association, 132 Alabama, 50, ] 57, which also says:
 sSubstantial performance of conditions | is all that is required"
 Finding of the Facts
 | Therefore the court finds
 F'irst-That while the evidence in this 1 case discloses possibilities of contamina- ton of the raw water supplies of the Birmingham Water company on occasions prior to, to-wit. the last two years, il l appears that the purification methods employed by the Birmingham Water com pany are in accordance with the best methods of modern practice, and arc
 under the evidence entirely adequate tc
 take care of and do take care of any
 contamination of the raw water; and that so far as the quality of the water is con. cerned, no intelligent suggestion has beer
 made as to how the public could be ben.
 eftted by any improvement in the meth
 ods of the Birmingham Water company
 or in any other way whatsoever, excep
 perhaps by the use of hypochlorites. if
 such quantities as the circumstances may
 require, in the Cahaba rivers supply.
 Second-That while at times individua
 consumers did not receive their watel
 under adequate pressure. that the water
 company had rectified every grievance o1 this character hefore this trial and 1T
 most cases before this suit was filed ant
 that it has provided high service facili
 ties and supply of water which vii
 take care of the growth of the city o1
 Birminrham for a long period of years
 and that those heretofore complainins
 testified in this case that they were nov
 pIeased with their pressure.
 Third-That, while the Water conpan,
 has charged. accordipg to ordinance s7-C
 ssrce that ordinance was passed (whicf
 ,plainant contends constituted a vio lation of ordinance 126-C), and the legalit,
 of said ordinance 97-C not having beer