67 So. 613 | Ala. | 1914
Lead Opinion
This is the second appeal in this ease. On the first appeal this court upheld, as valid, the contract which is the basis of this suit.—Brown v. Birmingham Waterworks Company, 169 Ala. 230, 52 South. 915.
One of the principal questions presented on this appeal is whether this court, on the first appeal, was correct in upholding the contract as valid. For this reason, as well as on account of the extreme importance of this case, the record has been carefully examined in consultation by the full bench, and this opinion is written for the purpose of expressing the views of those members of the court who appear as concurring in the opinion.
In the above case of Birmingham Waterworks Company v. Mayor, etc., of Birmingham, 42 South. 10, this court, in holding that the city court of Birmingham, sitting in equity, erred in sustaining the demurrer to paragraph J of the bill of complaint in that case, in reality declared that contracts containing stipulations similar to those contained in the contract now under consideration were illegal. On the former appeal in this case this court, in the effort to sustain the contract now under consideration, said: “The second proposition is that a condition could arise under the provisions of said contract where a greater charge could be made by defendant than that provided by the maximum rate; that is, that the rate provided for wa
The contract which is made the basis of this suit contains plain provisions to pay for all water in excess of 3,333 gallons per month “by the regular schedule of meter rates, which are made a part of this application and agreement. In other words, the contract now under consideration contains, as already stated, provisions substantially identical with those which were described in paragraph J of the bill of complaint considered in Birmingham Waterworks Co. v. Mayor, etc., of Birmingham, supra, and which were in that case, in effect, condemned as illegal. We fin.d nothing in this record indicating that since the rendition of the opinion in. Smith v. Birmingham Waterworks Company, supra, the water company has surrendered the right to exact the flat rates which are provided in the ordinance contract for residences in the city of Birmingham, or that any other rate has been legally provided for such residences in the city of Birmingham, or that any other rate has been legally provided for such residences, and, this being true, these rates are, in so far as the evidence in this record discloses, the only rates which the water company has the right of offer to, or
2. In the opinion on the first appeal this court said that: The “Birmingham Waterworks Company had a right to contract with an individual to furnish water at a less rate than the maximum rate fixed by said franchise contract, and less than that charged other individuals for similar service so long as the discrimination is enjoyed by those having the favored rate at the expense of the company, and does not impinge upon any rights of other consumers.”
This statement was based upon some expressions which are to be found in State ex rel. C. W. Ferguson v. Birmingham Waterworks Company, 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep, 69, 20 Ann. Cas. 951. In that case there was a petition for a writ of mandamus, wherein it was claimed that the company had entered into contract with some consumers similarly situated with the relator, by which it had undertaken to furnish to them water at a rate less than the maximum charges allowed by the ordinance contract. The relator did not claim that he was charged more than the maximum rate, nor that he was charged more than a reasonable price for the water furnished him, but he contended that he was entitled to
In the opinion in that case this court, after declaring that “the business of a company furnishing water to the public is naturally monopolistic and, being given the power of eminent domain to serve the needs of the public more effectually, must serve all consumers until equal facilities without discrimination,” indicated that a contract made by the Birmingham Waterworks Company with a favored customer at a rate less than the rate fixed for residences, etc., by the ordinance contract as, construed in Smith v. Birmingham- Waterworks Company, supra, and at a rate less than that charged its other customers, might, under certain circumstances, be upheld.
Cited, as sustaining the above propositions, we find in this note the following cases: Danville v. Danville-Water Co., 180 Ill. 235, 54 N. E. 224; State ex rel. Latshaw v. Water & Light Com’n, 105 Minn. 472; 117 N. W. 827, 127 Am. St. Rep. 581; Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240; Armour Packing Co. v. Edison Electric Illuminating Co., 115 App. Div. 51, 100 N. Y. Supp. 605; Cin
When the city of Birmingham made its contract with the waterworks company it intended — and the contract so provides — that there should not he any discrimination made by the waterworks company in the matter of supplying water to the inhabitants of the city of the same class. The maximum rates provided for residences are specific and certain. Stability and equality of rates on the part of a public service corporation are more important than reduced rates. It was the fact that without a contract fixing the rates for water there would probable be instability and inequality of rates, and out of this instability and inequality, unjust discrimina*, tion, and other unlawful practices with reference to. such rates, the city of Birmingham exacted the contract with appellant, and by that contract fixed a definite, uniform maximum rate for residences in said city. The law must see that all citizens of the same class receive the same treatment at the hands of public service corporations, and the spirit which controlled the city of Birmingham in exacting this contract from the waterworks company was the same spirit which actuated the Congress of the United States in its legislation with reference to tariffs for freight transported by carriers engaged in interstate commerce. On that subject we quote the following from A. J. Poor v. Chicago, Burlington & Quincy R. R. Co. et al, 12 Int. Com. Com’n Rep. 418: “Stability and equality of rates are more important to commercial interest than reduced rates. It was instability and inequality that were the
The case of Louisville & Nashville Railroad Company v. McMullen, 5 Ala. App. 662, 59 South. 683, in which the opinion of the Court of Appeals was prepared by the writer, deals with the many questions which are now under consideration, and cites some of the authorities which are pertinent to the subject now in hand. That the members of the public are entitled under the law to receive uniformity of treatment at the hands of public service corporations, and that contracts not partaking of a private nature, between public service corporations and some members of the public, whereby special privileges are obtained which are not commendable as matter of right by all other members of the public of the same class, will not be upheld, have become truisms of the law; and the trend of modern legislation, state and federal, in so- far as public service corporations are concerned, has been largely to that important end. That one member of the public of a particular class shall not be accorded the same identical treatment that is accorded to another member of the public of the same class, by a public service corporation, is not only not in harmony with an enlightened sense of right and fair play, but is opposed to- the true reasons upon which such corporations are given their franchises and are permitted to exist. Indeed, whenever inequality in such treatment is attempted by a public service corporation, dissatisfaction is the necessary result, and this dissatisfaction ultimately finds expression in unpleasant and expensive litigation.
The pronouncement of the courts in the cases above cited, and the undisputed facts in the instant case, all show the wisdom of the courts in rigidly holding public service corporations, in their dealings with the public, to uniformity in rates. In the instant case, a contract by meter rates was entered into. The customer complied with the letter of her contract and tendered to the water company the amount due under the terms of her contract. This amount the company refused to accept, demanding the amount which, under the flat rate, was due to it. The customer, believing herself entitled to the benefits of the meter contract which she had made with the company, refused to comply with the demands of the company and thereupon the company cut its water from her residence. This act-on the part of the company has caused the plaintiff great annoyance, inconvenience, and suffering, and in addition to this the present .resulting litigation has caused expense and annoyance to all of the parties concerned. This record discloses that the plaintiff is not the only
If contracts of this character are to be upheld and made the basis of recovery in an action at law, then uniformity of water rates in the municipality of Birmingham disappears, and the water • company may discriminate among its customers as it pleases. This the law will not permit it to do.—Smith v. Birmingham Waterworks Co., supra; Birmingham Waterworks Co. v. Mayor, etc., of Birmingham, supra; Griffin v. Goldsboro Water Co., supra.
3. That there is a divergence of views among the courts of last resort on the question as to whether, at common law, a public service corporation was under the necessity of furnishing to its customers of the same class the same identical rates there can be no doubt.—Ernest St. George Lough et al. v. Outerbridge et al., 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, 42 Am. St. Rep. 712; L. & E. & St. L. Con. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105: Cowden v. Pacific Coast S. S. Co., 94 Cal. 470, 29 Pac. 873, 18 L. R. A. 221, 28 Am. St. Rep. 142; Griffin v. Goldsboro Water Co., supra. An examination of those cases as above reported, including the notes and the cases cited in the briefs of counsel, will disclose the conflict to which we refer.
See further on the above subject City of Montgomery v. Greene, 180 Ala. 322, 60 South. 900, in which the above doctrine is reaffirmed.
4.
5. In this case there was, it is true, a dispute as to what amount the plaintiff should pay the defendant for water for her residence. This dispute grew out of the fact that the plaintiff and the defendant had made with each other a contract which was void because the law itself condemned the contract which they made. The reasoning, therefore, of the Supreme Court of Maine in Wood v. Auburn, 87 Me. 293, 32 Atl. 908, 29 L. R. A. 376, and of the Supreme Court of Mississippi in Telegraph Co. v. Hobart, 89 Miss. 252, 42 South. 349, 119 Am. St. Rep. 702, has no applicability to the facts in this case.
6. It follows, therefore, that the opinion of this court on the former appeal (Brown v. Birmingham Waterworks Co., 169 Ala. 230, 52 South. 915) in so far as it conflicts with the views expressed in this opinion, is expressly overruled. It also follows that in our opinion the trial judge committed reversible error in giving to the jury at the request of the plaintiff, affirmative instructions in her behalf. In our opinion, under the evidence in this case as it is disclosed in the bill of exceptions, the defendant was entitled to affirmative instructions in its behalf.
Reversed and remanded.
While fully concurring in the foregoing opinion, I do not wish to be understood as approving the contract in question even , if the terms and rate therein provided were uniform and applied to all of the dwellings of the city. 'The original ordinance contract between the waterworks and the city has been several times before this court and it was then held that said contract did not authorize a meter rate as to dwellings, and that they had to be supplied with water under a flat rate. — Smith v. Birmingham Waterworks, 104 Ala. 315, 16 South. 123; Waterworks v. Mayor, etc., 42 South. 10. It may be that the flat rate there provided was the maximum rate, and that a lower flat rate, if uniform, would be permissible, but to my mind, a contract on a meter rate is questionable under any condition. On the other hand, if it be conceded that the company could make an uniform meter rate which would be less than the maximum flat rates as fixed by the ordinance contract, it would have to affirmatively appear from the last contract that the rate so fixed could not exceed the maximum flat rate prescribed by the ordinance contract, a,nd which fact does not appear in the present contract, or the provision guarding against this point was improperly read into same upon the former appeal of this case. — 169 Ala. 230, 52 South. 915. It may be that the sale of water by the meter rate is more equitable to all parties concerned than by the flat rate, but this court must deal with contracts as they are, and not as they might or should be.
Dissenting Opinion
(Dissenting.)—I do not concur in a reversal on the ground taken in the prevailing opinion. I have not examined the record to see whether there be other ground of reversal; for, as the case has been
In the absence of statute or equivalent competent municipal ordinance to the contrary, mere inequality in the charges made by a public service corporation does not of itself amount to an unjust discrimination. “At the foundation of the whole matter lies the common-law rule, just and well settled, that in each particular case there should be charged a reasonable compensation, and no more.” — 2 Hutchinson on Carriers (3d Ed.) § 521.
This was the effect of the language used in State ex rel. Ferguson v. Birmingham Wateworks Co., 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep. 69, 20 Ann. Cas. 951, though it may have been aside from the precise question there involved. The idea I find to be more clearly expressed in Wagner v. Rock Island, 146 Ill. 156, 34 N. E. 549, 21 L. R. A. 519, as follows: “It is a rule of the common law that parties carrying on business which is public in its nature, or which is impressed with a public interest, cannot select their patrons arbitrarily, but must serve all who apply on equal terms, and at reasonable rates, but this is as far as the rules of the common law seem to have gone. They do not require absolute uniformity of rates, nor forbid discrimination by performing the service for one at rates lower than those exacted of others. The most familiar illustration of pursuits of this character is that of a common carrier, and the well-recognized rule is, that while the carrier cannot
This proposition is discussed and approved in Hutchinson on Carriers, ubi supra, and Schouler on Bailments and Carriers (2d Ed.), § 380, modern treatises both, where many cases, modern and ancient, American and English, are cited.
“This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision.” — License Tax Gases. 5 Wall. 462, 469 [18 L. Ed. 497]. “When the will of the people has become crystallized into legislative enactment, and a given subject has been surrounded by regulation, limitations, and restrictions, the courts are bound to consider them as indicating a definite policy, and to yield obedience thereto.” — Baum v. Baum, 109 Wis. 47, 53, 85 N. W. 122, 123 (53 L. E. A. 650, 83 Am. St. Rep. 854). But here, as I have already noted, nothing is fixed by the ordinance contract except the maximum charge, and, I take it, this court would hardly hold absolutely void contracts establishing a uniform charge more favorable to the people of Birmingham. “The poAver to refuse to enforce a contract as
Rehearing
RESPONSE TO APPLICATION FOR REHEARING.
On this application for a rehearing, it is argued that this court, in effect, has held that the water company may not voluntarily establish a uniform rate less than the maximum rate fixed by the ordinance contract referred to in the above opinion. It is also argued that this court has, in said
In the above opinion we have confined ourselves to the questions presented by the record, and we have undertaken to decide no other questions. The above points which it is claimed on this rehearing have been decided, in effect, by the above opinion, have not been before us for review, and they have not, of course, been decided by us. Those points, not being raised by this record, cannot in this case be passed upon by this court.
(2) In so far as the question which, in this case,, we have determined, is concerned, we think that the true rule at common law on the subject was correctly stated by the Supreme Court of New Jersey in the following language: “The business of the common carrier is for the public, and it is his duty to serve the public indifferently. He is entitled to a reasonable compensation, but on payment of that he is bound to carry for whoever will employ him, to the extent of his ability. A private carrier can make what contract he pleases. The public have no interest in that, but a service for the public necessarily implies equal treatment in its performance, when the right to the service is common. Because the institution, so to speak, is public, every member of the community stands on an equality as to the right to its benefit, and, therefore, the carrier cannot discriminate between individuals for whom he will render the service. In the very nature, then, of his duty and of the public right, his conduct should be equal and just to all. So, also, there is involved in the reasonableness of his compensation the same principles. A want of uniformity m price for the same hind
To the same effect is Fitzgerald et al. v. Grand Trunk R. Co., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70. Indeed, we think that the great weight of modern authority sustains the conclusions which have been expressed by this court in the above opinion.
Tbe application for a rehearing is overruled.