City of Montgomery v. Smith

88 So. 671, 205 Ala. 557, 1921 Ala. LEXIS 542
CourtSupreme Court of Alabama
DecidedApril 21, 1921
Docket3 Div. 503.
StatusPublished
Cited by7 cases

This text of 88 So. 671 (City of Montgomery v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Montgomery v. Smith, 88 So. 671, 205 Ala. 557, 1921 Ala. LEXIS 542 (Ala. 1921).

Opinion

THOMAS, J.

The bill prayed injunction to prevent cutting off the -water supply from service connection to complainant’s house within the city of Montgomery, and to prevent discrimination against him in rates charged for water.

In addition to the necessary and formal averments, it is averred:

“That the city of Montgomery under authority granted by the Legislature of Alabama is engaged in conducting, maintaining and operat-, ing waterworks for supplying the city of Montgomery and its inhabitants with water, and requires by ordinance all of the inhabitants of said city to purchase their water from said city, and prohibits all wells or other sources of water supply in said city. That the said city has the exclusive monopoly of the business of furnishing water to its said inhabitants.
“That complainant is an inhabitant of said city, and as such has for a long time been purchasing the water which he used or consumed from the said city. That complainant is an unmarried man and has no family other than himself. That he resides in a house owned by him in said city, wherein also reside three married couples, all of different families and all without children. That these are all of the residents of said house and are all of the persons using water from the service connection leading into said house. That all of the residents of said house are supplied with water by the said city through a single service connection leading into-the said house through two plain faucets, and have been so supplied for a long time prior hereto. That prior to October 1, 1920, your complainant and the other residents of said house have been charged by the «aid city and have paid together a minimum charge of $3 per quarter of a year for all the water supplied through said service connection, which charge entitled all of the said residents of said house together to the use of 20,000 gallons of water per quarter of a year. That this was the same charge that was made upon all other inhabitants of houses in the said city supplied through a single' service connection. That at no time have the said residents of said house together used more than 20,000 gallons of water per quarter of a year.”

It is further averred that due tender was made of proper charges by tbe consumer (B. R. L. & P. Co. v. Littleton, 201 Ala. 141, 77 South. 565), which was refused by tbe city and an excessive sum demanded as a minimum charge for the “quarter of a year”; and complainant has been notified that.on failure of such payment tbe city will “cut off from said service connection [complainant’s water supply] and complainant will bo deprived of the use of the water therefrom, to his great and irreparable damage.”

The city claims that it is controlled, as to the complainant’s said property and the water rate for the quarter for water supply or *559 service therein and for which payment was demanded, by the ordinance of July 27, 1920, “To fix the charge for water supplied to two or more houses, apartments, families or firms through a single service connection,” as follows:

“Be it ordained by the board of commissioners of the city of Montgomery, as follows:
“Section 1. That beginning with the quarter commencing October 1st,. 1920, the minimum charge per quarter for water supplied through a single service connection to two or more houses, apartments, families or firms shall be three ($3.00) dollars per.quarter for each of such houses, apartments, families or firms supplied; which charge shall entitle each of such houses, apartments, families or firms to the use of twenty thousand gallons per quarter; provided, however, that in case any such house, apartment, family or firm is supplied through one plain faucet only without bath or sanitary connection, the minimum charge for such house, apartment, family or firm so supplied shall be one and 00/ioo ($1.50) dollars each per quarter, entitling each of such houses, apartments, families or firms to the use of ten thousand gallons per quarter.
“Section 2. Water used in excess of the amount allowed under minimum rates shall be paid for at the usual excess water rate.”

Appellee’s challenge of this ordinance is as to the manner of its construction and proposed enforcement, and that it operates as a discrimination against him and his said property. It is averred in the bill:

“That large families and firms in said city are constantly using and consuming far more water than your complainant and the other residents of said house, and are supplied with said water by said city under said ordinance at greatly lower rates than the rate which said city is demanding of your complainant. Wherefore, the said city is attempting to make and enforce discriminatory rates to complainant and other inhabitants of said city to the great detriment of complainant. And complainant avers that said ordinance and said acts and conduct of said city thereunder are totally void and are in direct violation of the statute authorizing said city to maintain and operate said water works, and to collect rates for the water supplied, used or consumed therefrom.”

The city of Montgomery demurred to the bill on grounds that it was “without equity”; that “a complete and adequate remedy at law” is shown to have existed; that the discrimination averred is a “conclusion of the pleader.” and it is not shown “that the classification for purposes of water rates made in said ordinance is unreasonable or unjust,” and as to complainant that “the classification of rates for the use of the water as made under the ordinances complained of” are shown to be “reasonable and proper.” Demurrer was overruled, and from this decree respondent appealed.

[1] Appellant may not maintain in this court an objection to the bill that is not assigned as a ground of demurrer in the lower court. Code, 1907, § 5340; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 South. 73; Ex parte Walker D. Hines, Director General (In re Hines v. McMillan) 87 South. 691; 1 McWilliams v. Birmingham Southern R. Co., 85 South. 293; 2 Ex parte Payne Lumber Co., 203 Ala. 668, 85 South. 9; Sugar Valley Land Co. v. Johnson, 17 Ala. App. 409, 85 South. 871.

[2] That a waterworks company, or a municipality operating such public utility, may not lawfully make and enforce discriminatory rates among consumers, members of the same class, has been decided by this court. City Cleaning Co. v. Birmingham W. W. Co., 85 South. 291; 3 B. R. L. & P. Co. v. Littleton, supra; Bessemer W. W. Co. v. City of Bessemer, 198 Ala. 535, 540, 73 South. 905; Birmingham W. W. Co. v. Hernandez, 196 Ala. 438, 447, 71 South. 443, L. R. A. 1916E, 258; City of Montgomery v. Greene, 180 Ala. 322, 60 South. 900; Id., 187 Ala. 196, 65 South. 783; Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 South. 712, 47 L. R. A. (N. S.) 607; Birmingham W. W. Co. v. Brown. 191 Ala. 457, 67 South. 613, L. R. A. 1915D, 1087, notes; City of Birmingham v. Birmingham W. W. Co., 42 South. 10; Smith v. Birmingham W. W. Co., 104 Ala. 315, 325, 16 South. 123.

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Bluebook (online)
88 So. 671, 205 Ala. 557, 1921 Ala. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-montgomery-v-smith-ala-1921.