112 Ala. 260 | Ala. | 1895
The City of Mobile and the Bienville Water Supply Company, under authority conferred by their' respective charters, entered into a contract by which the latter undertook to supply water to the inhabitants of the city for private purposes at fixed rates and to supply to the city itself water for public purposes, including service at fires. The charter of the company by its sixteenth section, provides for the erection of hydrants upon request of residents of certain localities, to be paid for by taxation; and that other hydrants erected under other conditions shall, with certain other apparatus connected with the fire service, be paid for by the city. It is further provided that the water for this service shall be furnished “free” except as paid for from the sources mentioned. Under these conditions it is evident that the water is actually paid for by the inhabitants of the city.
By the second section of the contract it was provided as follows: “Said Bienville Water Supply Company further agrees to erect or cause to be erected in some suitable place to be agreed upon by the General Council of said city, a gauge which shall indicate an average pressure of eighty (80) pounds at the hydrant for every twenty-four hours; failure to maintain such pressure shall abate the price proportionately for the time such failure continues after the expiration of such twenty-four hours. In addition,-said Water Supply Company
The bill is brought by the city of Mobile. It alleges that an extensive conflagration opcurred in that city on the night of March 16th, 1894 ; that hose was attached to hydrants near by, but that with] only three streams playing through hose not over three hundred feet long, and through nozzles not exceeding one and one-quarter inches, the vertical streams furnished failed to reach sixty feet each. That a proper supply was not furnished until after the company’s ’superintendent had ridden eleven miles out to the pump house and increased the pressure, and that the greater part of the damage had occurred before this was done.
It is alleged that the General Council subsequently declared by resolution that the Water Company had, by reason of the alleged breach of contract, forfeited to the city the sum of one thousand dollars. Pursuant to this action, the city deducted that sum from the monthly instalment next due. The Water Supply Company thereupon directed its attorney to demand payment of the sum declared forfeited, and gave notice to the city that in default of payment it would shut off water used for public purposes. The bill is filed to enjoin this threatened action, and the case is beforexis on appeal from the decree of the chancellor overruling the demurrers of the defendant.
Treating the case as controlled by the principles ap
The abstracts furnished are not full or precise in the statement of the case. They were doubtless prepared on the assumption that they would be amplified by reference to the transcript. This, under our construction of our rule, we are not at libertjr to do. — O’ Neal v. Simonton, 109 Ala. 369.
If the bill is broader in its prayer for relief than we have construed it to be, it seeks more extended relief than can be decreed. But regarding it as filed solely for the purpose of preventing such injury to the public as might arise if the Water Company should shut off the water, it is not open to the objection urged. The duty of furnishing water for the extinguishment of fires is one which might well attach to the municipality with
But the company also owes a duty to the public. Neither it nor the city would be permitted, summarily and without making some other provision for the safety of the public, to shut off the water. We judicially know that contracts of this character once entered upon, become, in a sense, perpetual. They may contain provisions for forfeiture or for expiration by limitation; but from their very character, there is expectation if not assurance, that so inseparable and necessary an adjunct of municipal existence will be carried forward by some one, if not by the original projectors. Changes may and do take place; but where such agencies have thus become incorporated into the municipality itself, it would be the duty of the court to see that these changes are not so violent or summary as to endanger public or private property. • ■ '
While the State lias no recognized interest in the property of its citizens, its right to appeal to the courts for the protection of the public interest is wTell settled.— Att’y. Gen. v. Jamaica Pond Aqueduct Corp., 133 Mass. 361; Coosaw Min. Co.v. South Carolina, 144 U. S. 550, 556; Sparhawk v. Union Pass. R. Co., 54 Pa. 401; People v. Powers, 83 Hun 450; U. S. v. Am. Bell Teleph. Co., 128 U. S. 315.
The prevention and abatement of nuisances affecting the health or comfort of the public at the instance of municipalities is also a recognized branch of equitable jurisdic
The duty of the State extends, in respect to corporations, to a resumption by forfeiture of grants of power which have been abused to the detriment of the public. Can it be that the State may not prevent by injunction a Avrong which, if perpetrated, would warrant a forfeiture? And, if such a duty rests upon the State, Avhy on like principle, should it not also devolve upon the municipality charged with the protection of the lives and property of its inhabitants? In cases like the present, some Avay can doubtless always be found to protect the rights of the public without invading or infringing the contractual rights of the parties. But if cases should arise where all these rights in their fullness could not be protected, the rights of the public, in view of which the contract was made and in consideration of which valuable franchises hay-e been accorded, should not be defeated because of incidental embarrassment to some extent of the rights of parties to the contract. In such cases, the proceeding is not strictly one for specific performance of the contract, but is one rather by the negative means of injunction of enforcing the performance of a public duty. — Iron Age v. Western Union Tel. Co., 83 Ala. 498, 508.
If the city may not adopt this remedy, it is Avithout any remedy. If pursuant to the notice given, the company should shut off its water supply, and damage should result, no matter how extended, it is settled, that neither the city nor the OAvners of private property injured by the breach of publicduty, could maintain an action against the company. — Moundsville v. Ohio River R. Co., 20 Lawyers Rep. Ann. 161. On the other hand, if the city has wrongfully declared the forfeiture, the courts are open to the company to have that fact judicially determined and secure the full measure of its rights. It cannot be permitted, hoAvever, to enforce its construction of the contract by Avay of reprisal fraught with such dangerous consequences to the public.
What Ave have said renders it unnecessary, if not improper, to determine other questions presented by the demurrers. We remark in conclusion that under the allegations of the bill, the final decree should go no
Affirmed.