92 Ala. 361 | Ala. | 1890
The City Council of Montgomery applied to the City Court to grant a mandamus, compielling the Capital City Water Company to remove its piipies where they piass through the public sewer on each side of a public street. The pietition shows that the water company is a corporation created and organized under the laws of this State, and engaged in the business of supplying water to the city and its inhabitants. It alleges,.as the ground on which the mandamus is asked, that the pipíes laid in certain streets, which piass through two sewers, one on the east, and the other on the west side of North Union Street, interfere with the free passage of the water along the sewers, and intercept and obstruct the debris, sand and drift, causing the water to overflow the street' and sidewalk, rendering the same inconvenient and unsafe, and damaging adjacent private property.
The water works were constructed under a contract with the City Council in the form of an ordinance, adopted October 7, 1885. The entire ordinance is set out in the answer of the co'mpány; but the defense is mainly based on the provisions of the first, eighth and tenth sections. By the first section, •the city grants the right and authority to erect and maintain a suitable water work’s pumping station!, in or near the city, and to lay down and maintain and use water-mains, piipies, aque
The proposilion of the defense is, that the City Council, being clothed with authority, and reserving the right to regulate the laying of the pipes in the streets, prescribed by the ordinance how and where they should be laid; and that the company, having laid the pipes, not in the exercise of its own discretion and judgment, but under the direction of an engineer-appointed by the City Council, has violated no ordinance of tíre City Council, nor any law or public duty. The proposition involves the authority of the City Council to surrender to a private corporation, by contract, the powers and duties in respect to the public streets conferred and imposed.by the city charter, and to deprive succeeding councils, pro tanto, of their regulation and control. The city charter confers on the municipal authorities power, and devolves the correlative duty, to keep the streets in repair, safe and convenient for public use. That a contract surrendering such power, and having effect to disable the performance of such dutjq is invalid, seems too well established to admit discussion. If conceded that the City Council has authority to contract for a supply of water for fire and sanitary purposes, yet the City Council has nas no power,
But, as we interpret the ordinance, such is notits intention, effect or meaning. The reservation of the right to determine the location of the pipes does not justify the inference, that the location, once determined and fixed, should be final, and operate to prevent the city thereafter exercising its power over the streets, so far as concerns the location of the pipes. It need scarcely be said, that an agreement will not be implied to do what the City Council can not expressly contract to do. The ordinance should be so construed as to give, and not destroy its effects and operation. The reservation is for the public benefit and protection, and should be so interpreted as to effectuate its purposes. These purposes can not be accomplished, if restricted to one exercise of the right. It was expressed in order to avoid any conclusion that the City Council was bargaining away the powers of the city over the streets, and is broad enough to include the right, not only to determine the location of the pipes in the first instance, but also to regulate and control their re-location and alteration, as the public necessity or convenience may demand; a contractual reservation of what the charter itself reserves, the right and power to discharge the duty to keep the streets in repair and convenient and sale for public use.—Lou. City R'wy. Co. v. Louisville, 8 Bush. 415.
It is not shown or claimed that the City Council, as an official body, ever acted in regard to the location of the pipes. The claim is, that the City Council determined where and how the pipes should be located, by and through the appointed hydraulic engineer, under whose supervision and direction they were laid- — ■ in other words, the City Council delegated the power to the engineer. The principle is a plain one, that the public powers are trusts devolved by law, or charter, upon the council or governing body, to be exercised by it when and in such manner as it
Section 27 of the ordinance provides, that the Capital City Water Company shall construct and continue the water works in such manner as to interfere as little as possible with the public or private property in the city, and shall be liable for any damage to persons or property caused by the negligence of the company. If the company so negligently passed the pipes through open sewers as to obtruct the debris, sand and drift, causing the water to overflow, thereby rendering the street inconvenient and unsafe, and damaging private property, it is liable for any injury to persons or property resulting therefrom. The liability to individuals, as distinguished from the public, does not depend merely on the contract, but also on the negligent performance of a public duty. Considering the ordinance as an entirety, our conclusion is, that it does not abrogate or impair the exercise of the rights and powers of the city to regulate and control the streets so as to promote and subserve the public convenience and necessity, or justify the company in laying and continuing its pipes in such manner as to render the streets inconvenient and unsafe for public use.
The evidence not being set out in the bill of exceptions, we can not pass on its sufficiency to show that the water overflows so as to render the'streets inconvenient and unsafe.
Reversed and remanded.