71 So. 443 | Ala. | 1916
The question in this case arises out of an application by Hernandez for a writ of mandamus to compel the Birmingham Waterworks Company to lay at its expense a lateral or service pipe line from its main to the premises of the petitioner, who desires to be supplied with water.
Respondent is exercising charter powers under and by virtue of the special act of incorporation approved February 13, 1885
“The whole of said pipe system shall -be such as to cover, supply, and keep supplied, all portions of streets of the city which it may be necessary to supply, and be furnished with all the necessary and usual stop gates, special castings, air valves, blow-offs, etc.”
“That all hydrants provided for under this contract shall be put in by, and at the expense of said Birmingham Waterworks Company, but shall thereafter become the property of said city, and shall be kept in repair and when worn out shall be replaced with new hydrants by and at the expense of said city.”
To these things respondent’s answer added averments that since it had been engaged in supplying water to the city of Birmingham, uniformly, both before and after the contract of June 2, 1888, consumers had paid the cost of laying and installing the service pipe lines between their premises and its main; that before said contract it had adopted a rule or regulations to that effect which was proper, reasonable, and such an one as had been
The question then is, on the facts disclosed by the petition and answer, whether, on relator’s application to be supplied with water, it was the duty of the respondent to lay the service pipe connecting its main with relator’s premises at its own expense, or whether it might charge the cost of the work to relator.
In State v. Birmingham Waterworks Co., 185 Ala. 388, 64 South. 23, this court said: “In this state it is not yet settled, and, however we might be disposed to view it, we do not regard it as a willful and culpable breach of duty by respondent to now decline to furnish such.pipes at its own expense; though it is proper to say that the great weight of authority in other states seems to rec.ognize and impose the duty in question.”
At this time the question is presented for a definite answer, and we have made such shift as we could to investigate anew the original authorities and the reason of the matter.
It must be now admitted that the weight of authority, if numbers may count for weight, rests with relator’s side of the controversy. Some of the cases constituting this weight of authority did not really involve the precise question here presented, and some of them appear to have been influenced to some extent by general statutory provisions; but it is safe to say that the rule for which relator contends has been substantially adopted as a rule of decision in Arkansas, California, Idaho, New Mexico, Oklahoma, and Washington, as the following cases will show: Pine Bluff Corporation v. Toney, 96 Ark. 345, 131 S. W. 680, Ann. Cas. 1912B, 544; Title Guarantee & Trust Co. v. R. R. Commission, 168 Cal. 295, 142 Pac. 878; Hatch v. Consumers Co., 17 Idaho, 204, 104 Pac. 670, 40 L. R. A. (N. S.) 263; State v. Albuquerque Water Supply Co., 19 N. W. 36, 140 Pac. 1059, L. R. A. 1915A, 246; Bartlesville Water Co. v. Bartlesville (Okl.) 150 Pac. 118; Cleveland v. Malden Water Co., 69 Wash.
It is not without profit to note of the foregoing line of-cases that it had'its origin in some language, used arguendo, in Pocatello Water Co. v. Standley (1900), 7 Idaho 155, 61 Pac. 518, where the question was between the water company and a plumber, not the prospective consumer, and related to the reasonableness of the company’s rule by which it reserved the right to make all taps of its mains and pipes. Considering the obligations of a water supply company and construing the statute of that state, the court said: “Under the said franchise the respondent * * * is obliged today its mains and pipes in said streets and alleys, and deliver water to the consumers at its franchise limits, and to the line of the premises of the consumer, if such premises border on said franchise limits.”
That case was cited to sustain the rule in Hatch v. Consumers Co., supra. This last case (Hatch Case) went to the Supreme Court of the United States (224 U. S. 148, 82 Sup. St. 465, 56 L. Ed. 703), and the decision of that court is cited in the brief for relator and was cited by the Supreme Court of Oklahoma as sustaining its ruling in Bartlesville Water Co. v. Bartlesville, supra. But the only effect of the ruling in the Supreme Court of the United States was that the judgment of the state court, requiring the water company to make the service connection at its own expense impaired no constitutional right of the company which had accepted its charter in 1903, in contemplation of the duty of water companies as clearly settled by both the statute law and decisions at that time. To make the matter clear, we quote the language of the court: “The charter of the company was construed by the court below in connection with the statutes in force at the time of the construction given to those statutes in decisions made prior to such grant. We excerpt in the margin * * * a passage from the opinion in one of those cases (Pocatello Case). * * * That the construction thus placed upon the charter by the court below, in the light of the state of law. at at the time of its adoption, did not amount to an impairment of the obligations of the charter by subsequent legislation, is, we think, too clear for anything but statement.”
The idea which seems to underlie all the cases holding with relator, except as they are affected by statute or ordinance, may be fairly stated as follows: Since the franchise to furnish water
And that court, establishing by its decree the legal obligation of a contract by which the consumer agreed to keep his service pipe in repair, as neither lacking in consideration nor relieving a public service corporation of its duty under the law, and knowing perhaps more of the matter of fact than we do, said, in line with an averment of respondent’s answer in this case, that such was the general rule in cities and towns. There can be no distinction in principle between the duty to lay service pipes and the duty to maintain them. In the Hatch Case, supra, which, as we have seen, turned upon the construction of a statute, the Supreme Court of Idaho recognizes that the consumer may be required by ordinance to pay the expense of service connections when a statute so authorizes, and cites some case so holding. And in State v. Albuquerque Water Supply Co., supra, the most elaborately argued of the cases upon which relator relies, the question being whether the property owner or the water company must defray the expenses of laying the service pipe from the main to the property line, the court said: “The answer to the question necessarily depends upon the construction to be placed upon the franchise and contract under which the water company operates, for it is clear that the contracting parties might legally stipulate that this burden should be borne by the consumer, or, on the other hand, that the public service corporation should assume it.”
The first Missouri case on this question (Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288) follows the doctrine of some English cases and State v. Gosnell, 116 Wis. 606, 93 N.
The discussion need not be further protracted; but we cite some cases looking very persuasively to respondent’s view, and quote a clear, and as we think a correct, statement of the law in dispute which is found in the language of Reed, D. J., speaking for the United States Court of Appeals in the case of City of Wichita v. Wichita Water Co., 222 Fed. 789, 138 C. C. A. 337, a very recent case, precisely in point, in which the court evidently had before it the cases cited for relator here. The court said: “Municipalities, in granting franchises to or making, contracts with private persons or corporations to furnish water to the city and its inhabitants, may require the water company, when the statute so authorizes, to connect the service pipes with the water mains as a part of the consideration that shall pay for the privilege of furnishing the water; but, in the absence of a charter or contract that so provides, the matter is left to the agreement of the parties.”—Jackson v. Ellendale, 4 N. D. 478, 61 N. W. 1030; Vinton Water Co. v. Roanoke, 110 Va. 661, 66 S. E. 835; Franke v. Paducah Waterworks, 88 Ky. 467, 11 S. W. 432, 718, 4 L. R. A. 265.
On the authority of the cases cited by relator, McQuillin and Pond, in their respective works on Municipal Corporations and Public Utilities, state the weight of authority as tt was stated in State v. Birmingham Waterworks Co., supra; the latter citing meter cases along with the rest. But Prof. Wyman of Harvard Law School, in his work on Public Service Corporations, after referring to the same line of cases, says: “On the other hand, there is as much authority; if not more, to the effect that the requirement by legislation or even by the regulation of the company that the consumer shall pay for his service pipe is not outrageous, as this installation is peculiarly for his benefit and no part of the general facilities of the system in the use of which all share to some degree.” — Volume 1, § 824.
It results from what we have said that the judgment must be reversed, and the cause remanded.
Reversed and remanded.