City of Montgomery v. Greene
60 So. 900
Ala.
1913
Check Treatment

Lead Opinion

ANDERSON, J.

Under the act of January 26, 1891 (Laws 1891, p. 243), authorizing the city of Montgomery to maintain a water supply system and under the *328ordinances of said city, it is the duty of the city to furnish and maintain the water main with which its patrons can connect their service pipes. The service pipe, as required of the consumer, means only a connection from the residence of the owner with the main artery which supplies the water to the street or immediate locality on which, or in which, his property is located, whether said artery be designated as a main or service pipe. Nor does it matter, as to maintenance, whether it was laid by the city or by consumers jointly, especially when the consumers, as in the present case, offered to donate to the city the main pipe running from the Norman Bridge Road to their property,. and requested separate meters.—Brown v. City of Meridian, 59 South. 795.

The bill avers that other inhabitants of Cloverdale have been given separate meters, and are charged only for water used by them respectively; and we think that it is but fair and just that each of these respondents be put upon a separate meter basis, and not be required to answer jointly for the water consumption of all, and as measured by one meter at the head of the main service pipe.—Stein v. McArdle & Waters, 24 Ala. 344. In all cases where the respondent has the right to charge for water by measurement, and demands pay for water furnished, it is incumbent upon the said respondent to furnish meters. In the case at bar, it was the duty of the respondent to either take over the main pipe offered it by the complainants and maintain same, or else place a main near their property, which they could tap with service pipes running from their said lots to the highway near or adjacent thereto, and to install individual meters for the measurement of the water of each consumer, and it cannot shut off the water supply for the nonpayment of charges for an ex-’ *329cess of water which has not been properly measured, or justly ascertained. In case the respondent was to cut off the water for the nonpayment of said excess, it would not only be wrongful, but the damages would be irreparable, and a court of equity will not hesitate to interfere by injunction.—Smith v. Birmingham Water Works, 104 Ala. 325, 16 South. 123.

It may be stated, as a general proposition of law, that a corporation or municipality, authorized to supply water or lights to the inhabitants of a municipality, may not discriminate as to the rates charged, at least among those of the same class.—Ferguson v. Birmingham Water Works, 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, and note. “The acceptance by a water company of its franchises carried with it the duty of supplying all persons along its mains, without discrimination, with the commodity Avhich it Avas organized to furnish. All person are entitled to have the same service on equal terms and uniform rates.”—City of Mobile v. Bienville Co., 130 Ala. 384, 30 South. 447. The service cannot be arbitrarily limited to such consumers as are technically residents of the municipality, although the right of persons living Avithin the city or beyond may depend upon the sufficiency of the supply and the contiguity or remoteness of such persons from the mains.—40 Cyc. 793, and cases cited; 30 Am. & Eng. Encyc. Law, 418, 419. It may be that the act of 1891 left it optional with the city as to Avhether or not it would attempt to supply Avater beyond its corporate limits to points within its police jurisdiction, but, when it attempts to do so, it must be with uniformity, and without discrimination; and, if the citizens of Clover-dale are on its mains, they should be given the same uniform rate' as is the general rate for others along or upon its mains, and a different rate, fixed AAdiolly upon *330the corporate lines as the line of demarcation, in the absence of physical differences, is an unreasonable classification. This rule applies to municipalities operating their own water system, as well as to individuals or corporations who undertake to supply water or lights. “Water rates paid by consumers are not taxes, but simply the price paid for water as a commodity.” —30 Am. & Eng. Encyc. Law, 426. Therefore the argument of appellant that the city has the right to discriminate in favor of those who reside Avithin the citj7 limits, and who are liable for city taxes, is Avithout merit, as the supplying of water and the rate charged is in no sense the exaction of a duty or tax, but is the mere furnishing, as a monopoly, a public necessity, and Avhich must be supplied to all consumers alike, and Avithout an unreasonable discrimination either as to price or classification.

The case of State ex rel. Ferguson v. Birmingham Water Works, 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, as to the general principle there announced, supports this holding; nor is the conclusion reached in said case opposed to the present holding. There it Avas simply held that the granting of' a special rate to a feAV, Avhich was less than a reasonable rate, Avas not per se such an unjust discrimination as to render the general rate charged unreasonable or unjust, so long as the general rate was within the bounds of the maximum rate fixed by the contract. Here Ave have no concession to a few consumers; but Ave find a greater rate charged to a feAV than is charged to the public generally, or rather a greater rate against the few citizens in Clover dale than is being charged to all of the citizens of Montgomery, simply because the latter are Avithin, and the former are beyond, the corporate limits of the city.

*331The decree of the chancery court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.



Rehearing

ON REHEARING.

ANDERSON, J.

The rulings in this case are predicated upon the averments of the hill of complainant which was before the court, and said facts were not misunderstood, and are now understood to be substantially as contended for in brief upon rehearing, and a restatement of same is unnecessary. We did not hold that the city must continue to use the pipe in question instead of laying a new main in its place, if it prefers incurring the additional expense. We did hold, however, and which we repeat, that, notwithstanding the pipe was laid by property owners, it was along a highway; and after the city availed itself of the authority, given by the statute, to extend its water system throughout the town of Cloverdale, which is within its police jurisdiction, and continued to use this pipe, that it became its duty to maintain it, especially after the owners had offered it to the city, else give them a main and separate meters, as the bill avers was being done for the other citizens of Cloverdale, and who were within close proximity to these complainants. We also repeat that the Brown Case, supra, has considerable bearing on this question. Counsel concede the soundness of the Brown Case, supra, but contend that it has no application to the present case, for the reason that .the city of Montgomery had no right, authority, or jurisdiction over the streets of Cloverdale, and along which this pipe is laid. The bill avers that it has been sup*332plying. water to other citizens of Cloverdale through mains or pipes laid upon the streets of said municipality; and it would no doubt have as much right to excavate the highway upon which the present pipe is as it had to lay mains upon other highways of Clover-dale. Section 4 of the Act of 1891, p. 243, authorizes the city, among other things, to “extend such waterworks into any part of the police jurisdiction of said city as it may deem proper, ■ and in the event all the powers herein given such city shall apply to such portion of said waterworks.” In other words, the city has as much authority to excavate the streets of Clover-dale as it has the streets of Montgomery for the purpose of maintaining and operating its water system. The act, therefore, refutes the distinction attempted as showing the nonapplicability of the Brown Case, supra.

As to the right of the city to discriminate, counsel concede that the opinion is sound in holding that the charge for water was not a tax, and that the fact that one is within, and one beyond, the corporate limits is not such a substantial difference as will authorize a discrimination as to charges, but proceed to argue upon the theory that the taxpayer within the city should require better rates than those in Cloverdale, notwithstanding Cloverdale is within the police jurisdiction of the city of Montgomery. The argument proceeds as follows: “We have read, with great care, the court’s decision upon this phase of the case. The opinion is permeated with, and based upon, a false conception, We are not here concerned with a private corporation engaged in the business of supplying water to the public for profit to its stockholders. Were that the case, the court’s decision would be above criticism.” In other words, the opinion is wrong only because the water *333system is owned and operated by tbe municipality instead of a private corporation.

We reply that, if the opinion would be correct as to a private corporation, it is bound to be correct as to a. municipality which operates the water system, else the authorities are all wrong. “A municipal corporation, which supplies its inhabitants with water, does so in the capacity of a private corporation, and not in the exercise of the power of local sovereignty.”—30 Am. & Eng. Encyc. of Law, 404. Municipalities stand upon the same footing in this respect as would an individual or private corporation.—Wagner v. Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519; Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Western Sav. Fund v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Brumm’s Appeal (Pa.) 12 Atl. 855.