City of Montgomery v. Greene

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 [328] ordinances 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-’ [329] cess 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 [330] the 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. [331] The decree of the chancery court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.