105 Ala. 406 | Ala. | 1894
This is a proceeding in the nature of quo'warranto, prosecuted by the State on the relation of Macdonald against the Capital City Water Company, a corporation, under sections 3167 et seq. of the Code, for the dissolution of said corporation. It was commenced by petition or information on address to the judge of the city court of Montgomery. The petition avers that; said company is an organized body acting as
Upon presentation of this petition to the judge of the city court, this order was made by him : ‘ ‘To the clerk of the city court of Montgomery : Let an alternative writ issue according to the prayer of the petition, returnable on the 10th of May, 1892;” and thereupon the petition and order were filed with the clerk of the city court, and on the same day a writ was issued in accordance with the prayer of the petition, addressed to the Water Company, reciting the allegations of the information and commanding said company to appear and show “under what warrant of law you exercise the corporate functions and franchises herein above set out, and also to show cause, if any you have, why your charter should not be vacated, and your corporate existence annulled.”
The respondent company appeared and interposed a demurrer to the complaint, or petition, and also a motion to quash the writ. All the assignments of demurrer which are insisted on in argument are also set down as grounds of the motion to quash, and are available to the appellant, if at all, as well upon that motion as on demurrer to the petition. We, therefore, need only review the action of the trial court in overruling said motion.
The first ground of the motion proceeds on the theory that this proceeding should have been commenced by summons and "complaint under sections 2651 and 2652 of the
And, beyond all this, it may well be said to be the settled practice in this State to commence proceedings under sections 3167 et seq of the Code by information, or petition in the nature of an information, setting forth the facts and praying a writ of quo ivarranto, as in the case at bar.—Tuskaloosa Scientific & Art Association v. State ex rel. Murphy, 58 Ala. 54; The State ex rel. Sanche v. Webb et al., 97 Ala. 111; and this practice is expressly approved, with reference to similar statutory provisions, by the Supreme Court of New Jersey, Attorney General v. The Delaware & Bond Brook R. R. Co., 38 N. J. L. 282, where it is also decided that this proceeding is not “an action,” within statutes like section 2651 of our Code.—State v. Roe, 2 Dutcher, 215.
It was not necessary for the relator to obtain leave or an order of any court to institute and prosecute this proceeding before filing the information or at all, as is insisted by the second ground of the motion to quash.—Tuskaloosa Scientific & Art Association v. State ex rel. Murphy, 58 Ala. 54; State ex rel. Sanche v. Webb et al., 97 Ala. 111.
The remaining grounds of the motion to quash are obviously ill taken, and as they are not insisted upon by appellant’s counsel we shall not discuss them. The motion to quash the writ was properly overruled.
The respondent also moved to dismiss the proceeding for that the relator did not give security for costs before filing the information. It is quite true that in such cases security for the costs must be given before the proceeding is instituted, and cannot afterwards be supplied if seasonable objection be made.—Taylor v. State ex rel. Hand, 31 Ala. 383. But it is equally well settled that where the security is in fact given after the suit has
We cannot affirm that the trial court should have granted respondent’s motion “to require the relator to give other or additional security for costs of this suit, for the reason that the security given by the relator, to-wit, T. Gardner Foster, is insolvent,” because the evidence adduced in support of the motion only went to show that according to the tax records of the county he had only three hundred and twenty dollars of taxable property. He may have been perfectly solvent notwithstanding he had only that amount of taxable property in the county of Montgomery.
The respondent filed several pleas to the information and writ of quo warranto. Demurrers were interposed to each of these pleas, and sustained by the court; and the respondent declining to further plead, judgment was entered dissolving the corporation. We are now to consider the sufficiency of said several pleas, and, before proceeding to that, it is to be recalled that the information avers a charter duty upon the respondent to supply the city of Montgomery and the residents or inhabitants thereof with pure and wholesome water, sufficient in quantity at all times for domestic and other uses, and that said corporation had failed and persistently fails and refuses to perform this duty, which was the chief object and end of its creation and existence, and to supply said city and its people at all times with pure and wholesome water sufficient for their uses. The several pleas of the respondent admit that it was the duty of the
Respondent’s first plea does not negative the failure of corporate duty laid in the information. Construing it, as all pleas must be construed, most strongly against the pleader, it, in the first place, only claims that the Water Company discharged the duty in question for the first five years after its organization and incorporation, and the completion of its works — that is down to the year 1890: and this is to be taken as a confession that it has not performed that duty during the two years elapsing from 1890 to 1892, when this proceeding was commenced. And the plea proceeds, upon the assumption of failure to supply pure and wholesome water continuously during said last named period, to state facts which are intended to afford justification or excuse for such failure ; thus emphasizing the admission of its failure. After this it proceeds to aver that the city and its inhabitants are entirely dependent upon the respondent for a supply of water for fire and'ganitary purposes and that should the company’s charter be taken away from it, the city will be left without any supply of water for either of said purposes, and further -'‘that many of the inhabitants of said city are now depending solely upon the defendant for their water supply, and they are now and have been at all times since the construction of defendant’s works furnished with an abundant supply of pure, wholesome and deep well water and sufficient in quality and quantity for all the wants of the city and its inhabitants ; and defendant avers that if its charter was forfeited it would have no right to supply either the city of Montgomery or its inhabitants with water, or to operate its works in any way, and it would result in irreparable injury, and in probable devastation and ruin to this city and its inhabitants.” It was not intended by the pleader to aver in the above excerpt from the 1st plea that the respondent had at all times supplied pure and wholesome deep well water to the city and its inhabitants ; and counsel for the defendant do- not at all insist upon that interpre
Respondent’s 5th plea contains this averment: “And defendant avers that it has from the beginning until now complied in all respects with all the terms and conditions” of the ordinance-contract between it and the city, ‘ ‘ and has fully performed all its duties arising out of its charter by providing a system of water works of sufficient capacity and power to furnish the city of Montgomery an abundant supply of pure, wholesome,’ deep well water, sufficient for all the purposes of the city and its inhabitants. And it avers that each and every assignment of breach in this respect as set forth in plaintiff’s alternative writ, heretofore served upon this'defendant, are wholly untrue.” It is insisted by counsel for appellant that this averment is a denial of the charge that the company has failed to supply the city and its inhabitants with pure and wholesome water, and that this plea presents
The 6th and only other plea of respondent makes no pretense of denying the charge that the corporation has failed to supply water as required by the charter at all times to the city of Montgomery and its inhabitants, but
It is thus seen that none of the respondent’s pleas deny, and some of them expressly, and all except the 5th inferentially, admit that the corporation has not at all times supplied the city and its inhabitants with pure and wholesome water &c.
Several matters are set up in justification of this failure and in avoidance of the consequences thereof. These are all based, as we have seen, upon certain provisions of the contract between the city and the company and referred to in the declaration of incorporation. First it is insisted by the pleas that the fact that the city had and exercised an election to purchase respondent’s works in 1890 excused the company from all duty to increase the supply of pure, wholesome, deep well water to meet the wants of the city and requirement of the charter, and justified the furnishing of river water for the two years or more ensuing during which time the city and the company were disputing over the price the former should pay for the works, the company having the while the full possession and control and, being in undisturbed operation, of its works, and presumably in the receipt of the full rates of compensation fixed by the contract for supplying the city and its inhabitants with pure, whelesome, deep well water sufficient at all times for the uses of the municipality and the residents thereof. The essence of this plea is that notwithstanding the absolute charter duty of the defendant to supply pure, wholesome, deep well water, and notwithstanding there is not one word in this contract which qualifies that duty, yet the company need only perform it when the circumstances are such that to do so will entail no expense upon it except such as the city would have to pay should it ever elect to purchase the works. The principle of the plea would justify the company in supplying polluted, pestilential water to the people for years and charging
Again it is stipulated in said ordinance-contract that the ordinance may be repealed on ninety days notice to said corporation “if at any time the works herein provided for to be constructed by the said Arthur H. How-land, his associates, successors or assigns, shall in any substantial or material particular fail to meet the require-of this contract unless within said ninety days” said works shall have been made to conform to the provisions of the contract. And it is claimed that this right of the city to rescind the contract is the remedy and the only remedy for an abuse by the corporation of the franchises which the State has granted to it for the public good. This right of rescission does not upon its face, as given in the contract, import any power in the city to vacate the respondent’s character or to disurb in any way its corporate existence, but only to avoid a contract which, so far as it was of benefit to the respondent, authorized it to charge certain rates for water furnished by it to the city and its inhabitants. So that if it be conceded that this ordinance-contract becomes a part of the charter of the respondent corporation because of the reference to it in the declaration of incorporation, this power of annulling the contract would not be the power of vacating the corporation. Whatever the city’s competency to make this contract, it had not the sovereign power of breathing life into the corporate entity, and whatever its right to annul the contract, it was impotent to take away the life of the corporation. The State gave and the State only can take away that life. Considering the contract as a part of the charter the State might declare a forfeiture of the charter for infractions of duty imposed by the contract, but it by no means follows that the city, having powers only in respect of that part of the charter embraced in the contract, could exert any influence upon the vital principle of corporate existence which emanated from the State. The case is
There is another provision of this ordinance-contract to the effect that if any unforeseen or inevitable accident should happen to any part of the respondent’s system of water works, the company should have a reasonable time to repair injuries resulting from such accident, and that such “accident and the reasonable time rendered necessary to repair or provide for the same as aforesaid shall never be construed to be a breach of this contract or any cause for repealing this ordinance,” &c., &c. ; and this stipulation of the contract is set up in defense to the writ in this case. As no “unforeseen or inevitable accident” is averred it is difficult to see what pertinency this stipulation has to the issue in the case. Surely a drouth is not an “accident,” and a failure of the company to bore wells shown to be necessary to an adequate supply in seasons of drouth can in no sense be charged to an “unforeseen or inevitable accident.”
So much for the matters relied on in justification of the failure of respondent to supply at all times the water
Again, it is said that the respondent is now, or was when the case was heard in February last, after having pretermitted all effort in that direction for more than two years and until, and even for a year after, this proceeding was begun, exerting itself to sink a sufficient number of additional deep wells to furnish the water supply.required by its charter, and the promise is made by the pleas that these efforts will be continued unremittingly, and with the greatest diligence and skill until they are crowned with success. That this fact, transpiring after the franchise has been sufficiently abused to authorize and require the forfeiture of corporate existence, and after proceedings for forfeiture had commenced and been pending for a year, and this promise of the performance of corporate duty in the future, can
And this fact and promise are equally impotent .and vain as an invocation to judicial discretion. The fact is-not a new one in the history of this company developed in the pleadings here. There have been former occasions, according to the pleas, when the company had resolved upon the sinking of additional wells and set about, the execution of that purpose only to turn away from it. upon wholly insufficient considerations. And the promise is no greater obligation than has all along rested upon the company to do the very thing it now promises to do ; and as that obligation has not sufficed in the past to. keep the corporation up to the mark of this most vital duty, it would not be wise to rely upon the promise for-the future. And as the company has in the past with full consciousness of duty unperformed been easily diverted from its tentative resolution to discharge it, it is. not harsh to say the future can not be contemplated without grave apprehension that when the sword of this, writ no longer hangs over its life the present resolution to discharge its duty would lose its force, the present, night and day effort to sink wells would lose its energy, and upon some entirely insufficient consideration, invited to lodgement in the mind of the company by the. abortion of this proceeding, there would be another default of duty, the resolution would become infirm,' the-work would cease, the town would continue to be supplied with impure and unwholesome water, and the object and end of cor-porate existence would go unaccomplished and unattained.
There are averments of good faith, of great skill and perfection in the construction by the respondent of its system of water works, of the use of the most approved machinery and appliances and the most expert human skill in the service of the city and its people; but all these have fallen short of meeting the plain and simple requirement of the chart of respondent's life that it should furnish the city of Montgomery and its inhabitants with pure, wholesome, deep well water, sufficient at all times for their domestic and other uses. We have,,
None of the pleas, we therefore conclude, present any denial of the abuse of franchise charged by the petition and writ, nor any justification or excuse for such abuse, nor set up any fact which should have challenged the discretion of the city court to a denial of the prayer of the petition notwithstanding the charges made were confessed. The city court properly sustained demurrers to each of the pleas. The respondent declining to plead further, nothing was left for the trial court but to enter a judgment forfeiting the respondent’s charter'and ousting it of the franchises thereby granted ; and that judgment is affirmed.