City of Montgomery v. Greene, 187 Ala. 196

City of Montgomery v. Greene

187 Ala. 196 | Ala. | 1914

ANDERSON, C. J.

It may be conceded that the city is under no obligation to supply an ordinary out-lander with water, or to do so at the same rate as those *198entitled to the service under the terms of the charter contract. We are not, however, dealing with the ordinary outlander, but with those who have been made, by the action of the city, its regular consumers and patrons, and who are entitled to the same protection with its other customers and patrons belonging to the same class, whether within or without the corporate limits of the city. It was optional with the city, under the act of the Legislature, as to whether or not it would extend its system to that particular locality now known as Cloverdale, but when it did so, section 4 of the act gives it only the same rights and powers over the extension as it was given over the original system, no more and no less.

That the bill avers and the proof shows that the city has entended its system to the locality embracing these complainants, and which was within the police jurisdiction at the time, though now designated as the town of Cloverdale, there is no doubt. Indeed this was practically admitted by one of the appellant’s counsel and which said admission is, we think, fully justified by the record. Therefore, with this question settled, this case must be affirmed, unless we recede from our former opinion as reported in 180 Ala. 322,.60 South, p. 900, to the effect that, in the absence of some physical difference so as to justify a separate classification, these complainants must be supplied with water at the same rate as those of the same class whether in the town of Cloverdale or the city of Montgomery, and that the mere fact that one was within and the other beyond the corporate limits of the city did not afford a basis for a separate and distinct classification. It is conceded that the former holding is sound if we were dealing with an ordinary water company undertaking to supply water for a profit, instead of with a municipality which had undertaken *199bo supply its inhabitants with water. This point was so strongly urged upon the former appeal and upon the application for rehearing that we attempt to respond to same, and we again refer to the authorities quoted and cited in said response, which puts a municipality upon the identical footing with an ordinary company when undertaking to supply a monopoly. Indeed we have found no authority which warrants the distinction contended for, and find many that do not. If, however, the authorities authorized a distinction, we think the question is settled by the statute under which the city derives its rights and powers, and which contemplates that the rights and powers of the city over the extension should be the same as that given and exercised over the original system.

The decree of the chancery court is affirmed.

Affirmed.

Mayfield, Somerville, and de Graeeenried, JJ., con cur.