State ex rel. Macdonald v. Capital City Water Co. , 102 Ala. 231 ( 1893 )

HEAD, J.

The petition must be taken as making a case calling for the forfeiture of the defendant’s charter, as a corporation, without investigation by us of the sufficiency of its allegations, or the correctness of the practico pursued, for the reason that the motion to quash and the demurrer to the petition were overruled by the court below, and those rulings are not before us for review : the verdict and judgment on the merits, having been in favor of the defendant. There is no cross assignment of errors. We are only to pass upon the sufficiency of the defendant’s answer or plea, as tested by the relator’s demurrer to it. .

The substance of the relator’s complaint is, that it was the duty of the defendant, as a corporation, to furnish the city of Montgomery, and the residents thereof, a sufficient supply of pure, wholesome water for their domestic and other uses, which duty it willfully and persistently refused and failed to perform for the space of, to-wit? throe years. The plea, which the court sustained on demurrer, sets up', as an excuse for its failure to furnish the water as alleged, that it had "from time to time enlarged its works and increased its water supply up to and including the 7th day of October, 1890, when the City Council of Montgomery notified it that it, the City Council of Montgomery, exercised its option to purchase the works of the defendant, as it had a right to do under section 17 of the ordinance contract between the said City Council of Montgomery and the defendant; and that at the time of said election by said City Council of Montgomery to purchase said works it was then negotiating' with experts to bore a sufficient number of wells to supply all the ■ demands upon defendant for water for the city of- Montgomery and its inhabitants ; but that owing to said election it was advised that it was not authorized tb add to the amount in any way which the City Council of Montgomery wóuld be compelled to pay as the price of said works, and for this reason alone it did not contract for the boring of additional wells or for an increased supply of water; and defendant avers that the City Council of Montgomery is still insisting on its right tb pur-' chase said works under said election, and the question of purchase and sale is still undetermined.” The demurrers, with sufficient definiteness, question the sufficiency of these allegations as a defense to the action.

' We have no hesitation in affirming that the plea is bad. It shows no lawful excuse whatever for the alleged failure to perform its alleged corporate duty. In the first place, the fact' that it had from time to .time enlarged its works and increased its water supply, up to the 7th day-of October, 1890; and was then negotiating with experts to-bore other wells, which would supply all necessary demands for water, falls very far short of showing that it had -done its duty up to that time. In perfect consis- ' tehcy with these allegations, the defendant’s plant may have been, from its original erection, of the most diminutive and inadequate character and extent, and the enlargement of its works and increase of its water supply the most insignificant, involving gross and willful dis- ' regard of'duty-. The plea, to be good, should state facts which showj as a necessary conclusion, that it discharged 'its duty under the circumstances, or that it was not guilty of such a breach of duty as is alleged against it, Again, the plea states, by way of assumption, without, express averment, that some sort of an ordinance (contract had been entered into between the defendant and the City Council of Montgomery. When, under what circumstances, what its terms, and by what authority, on the part of either of the contracting parties, the contract was entered into, we are not informed, except as to what we get from the statement in the plea, that on Oct. 7th, 1890 — about a year and a half before this petition was filed — “the City Council of Montgomery notified defendant that it, the City Council, of Montgomery, exercised its option to purchase the works of the defendant as it had a right to do under section 17 of the ordinance contract between the said City Council of Montgomery and the defendant,” and that defendant “was advised thfit it was not authorized to add to the amount in any1 way which-the City Council of Montgomery would be-compelled to pay as the price of said work.” We are so devoid of information as to the nature and terms of the contract, and the circumstances under which it was entered into, that we can pass no intelligent judgment upon th'e power of the'city, as a municipal corporation, to ‘ m'alce it, or. the rights and duties of the parties under it.The contract, without more in reference to it, than the . plea alleges, exerts no influence on this case. Presumptively, the defendant had no authority -to enter into a contract which would disable it to '■ perform the public service for which it was chartered. Its franchise was to-furnish water'to the city and the residents thereof — a duty of a phblic nature — and, without .legislative au-' thority, it could do no act and make no contract which would render it impossible or impracticable to discharge that duty. ’It' must show its authority in the premises. If the defendant desires to plead specially justification or; excuse, it must show, by allegation of facts, not the,, mere assumptions and conclusions of the pleader, but of " fá'bts from' which the court will necessarily draw the con-; elusion that it did, under all the circumstances, that, which its'charter'engagement reasonably required of it;'’ iu such manner and to such extent, that the court, -in'' thé exerciáe of; a sound legal discretion, ought not to -. taike-from it' its charter.

' The plea is bad, and the city court e'rred in pverruling,. the .demurrer to it, for which error the judgment is reversed and the cause remanded.

Reversed and remanded.