92 Ala. 366 | Ala. | 1890
The appellant Water Company is the plaintiff in this action, in which if is sought to recover damages to the amount of six thousand five hundred dollars from the City of Montgomery. Many demurrers were interposed to the complaint, and among the grounds assigned are that both assumpsit and case are joined in its one count, and that the complaint is vague, uncertain and indefinite in that it does not appear from its averments' whether the cause af action declared on is in assumpsit or case. These grounds of de
The questions of final importance in this case, however, are raised by other grounds of the demurrer, and in reviewing the court’s action upon them, it becomes necessary to pretermit the infirmity of the complaint pointed out above, .and to consider whether on the facts averred a recovery could be had, either in assumpsit or in an action on the case.
The contract between the parties, for a breach of which, or for a breach of duty springing out of which, the suit was instituted, is, for the most part, in the form of an ordinance adopted by the City Council of Montgomery and assented to by the assignor of plaintiff, and in other part alleged to be a subsequent agreement in writing between the parties in modi
“Section (>. Be it further ordained, That leading from this pramping station to Court .Square there must be a twenty-four inch pipe, and leading from this pipe there must be other pipes of sufficient size to fully reach and supply all parts of the city; but the size oí' the branch mains leading from said twenty-four inch main on Court street to the other parts of the city is to be hereafter determined upon by and between the said City Council and said Arthur H. Howland, his associates, successors, or assignees, before the work contemplated by this section is commenced, provided the said City Council is represented in making, said selection by a competent hydraulic engineer. The whole of said pipe system shall be such as to cover and supply all portions of the existing streets of the city, and be furnished with all the necessary and usual stop-gates, special castings, air-valves, blow-offs, etc., and place not less than two hundred hydrants thereon of approved construction, to be so located that said hydrants shall average 528 feet apart, and be so located by said city with two nozzles of such size as the city may direct; and any hydrants which the city may desire to place on this original pipe system as herein provided, for shall be furnished, maintained and set, whenever said city may so direct, the expense thereof to be paid by the said city, and 'the city to have the use thereof free of rental. All pipes, castings, etc., to be of first class iron, bitumenized and tested with a hydrostatic pressure of 400 pounds to the square inch.”
" Section Up. Be it further ordained, That in consideration
“Section 19. Be it further ordained, That the works herein provided for shall be extended within a reasonable time after the said city shall notify in writing the said Arthur H. How-land, his associates, successors or assigns, that the said city has located one hydrant on each tenth of a mile of said proposed extension, to be paid for at the annual rate of fifty-five dollars per hydrant. Any additional hydrants which the city may desire on such proposed extension, shall be located by the city and furnished, set and maintained at the expense of the city, as provided in section six of this article, and free of rent.”
'■'•Section 20. Be it further ordained, That when the waterworks herein provided for are completed as stipulated for by said contract, that it shall be obligatory %ipon said city to use the hydrants of said water works and pay for the same as herein provided for, during a period of fifteen years; but this shall not affect any rights and privileges herein granted, to maintain and operate said water works in furnishing others than the city.”
The contention set forth in the complaint is, that the original pipe system required by section 6 of the ordinance, necessary and sufficient to reach and supply all portions of the existing streets of the city and to the placing thereon of two hundred hydrants at an average distance apart of five hundred and twenty-eight feet, was twentj'- miles in length ; and it is alleged that “ Howland and associates, in December, 1885, presented a plan proposing for the adoption of the defendant a pipe system, in accordance with the' provisions of section 6 of said contract, to cover and supply all portions of the existing streets of said city, . . . ., and so planned that not less than two hundred hydrants could be placed thereon at points already located and determined by the defendant,” so that such hydrants would be 528 feet apart, that this plan involved the laying of only twenty miles of pipe which was the whole of said pipe system which plaintiff was bound to construct and maintain under said section 6. It is further made ■to appear by the averments of the complaint that the City Council did not accept and adopt this plan, but was desirous of having a longer line of pipes, and while it ordered or made no
It is to be borne in mind in the consideration of this case, that the plaintiff was granted the right and assumed the obligation to supply water not only to the city, in its corporate capacity, but also to its inhabitants individually, and that the supply of water to the municipality was not only for the suppression of fires, but also for sprinkling the streets, flushing sewers, filling and running fountains, cfec., &c., and further, that the supply of water to individual and private corporations was both for domestic and manufacturing uses. It is also to be kept in view that the compensation to the water company provided for in the ordinance was not alone that which the city should pay for the public uses to which the water received by it might be devoted, but also that which individuals and industrial corporations should pay for water devoted to private purposes. We can not concur with Counsel that the city was to “pay for” the water works on a basis of pipe mileage. We do not understand that the works were to be paid for at all or have, to any extent, been paid for by the city or its inhabi
Other demurrers, which were also sustained below, raise the point that the contract between the water company and the city is violative of section 9 of the municipal charter which is as follows: “The mayor and aldermen shall have the power and authority, for the ordinary expenses of said city, to assess, levy and collect a tax on real estate not exceeding one-half of one per cent, on the cash value thereof, and.no more in any one year; and that the city council shall not contract any debt, or incur any liability in the future, for or on account of the city of Montgomery, except such as shall be paid out of the ordinary current revenue collected in the year the debt or liability is contracted,” &c. No conclusion we may reach on this question will affect the fate of this appeal since the judgment of the circuit court must be affirmed on considerations already adverted to, and hence we will not enter upon any exhaustive discussion of it. It is proper, however, to be stated that, in our opinion, these grounds of demurrer were not well assigned. Even in cases where the point is unaffected by other provisions -of the charter, there have been adjudications by most respecta
Affirmed.