Town of Camden v. Fairbanks, Morse & Co. , 204 Ala. 112 ( 1920 )

In my opinion, the majority of the court, in holding that the contract in this case was executed in accordance with the statute, have not followed the law of City of Mobile v. Mobile Electric Co., 84 So. 816.² In the view of the case presented by the most recent holding viz. that the contract was executed according to law, I concur with Judge THOMAS that complainant should have a lien, but that lien, in my judgment, should be spread over the entire system of waterworks. My view of the case presented by the bill, the so-called contract eliminated, as I think it should be, is this, in short: The contract — so, for convenience, to speak of the arrangement into which the parties entered, for it cannot be assumed that the town of Camden acquired possession of appellee's property otherwise than by some arrangement between them — that contract cannot be allowed to impose any general obligation on the town of Camden, for the reason that, apart from any such obligation, the town was indebted to the constitutional limit; still there is a clear moral obligation resting upon the town, if it would retain the machine, to pay for it, and the contract or agreement by which the town got the machine has been fully performed by the vendor, appellee. I think it may be assumed as a matter of common knowledge that to separate and cart away its pump would take the heart out of the waterworks system. At any rate, I think complainant will be able to aver and prove such to be the case. Being a public utility, I do not think the court should make any order or send the parties to a court where nothing could be done except destroy the system. Eufaula Water Co. v. Addyston Pipe Steel Co., 89 Ala. 552, and authorities cited at the bottom of page 560, 8 So. 25; City of Decatur v. Sou. Ry. Co., 183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231. My judgment is, therefore, that the proper remedy would be to declare a lien as was done in Ross v. Perry,105 Ala. 533, 16 So. 915. As for the question raised about the use of the streets and section 220 of the Constitution, the town has agreed to the use of its streets for waterworks purposes, and should not be allowed to change its mind in order to defeat a just claim.

I, therefore, concur in the conclusion to affirm the decree overruling the demurrer.

² 203 Ala. 574.