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to it. The customer, believing herself en- , and uniform rates, without discrimination titled to the benefits of the meter contract in favor of or against any citizen or number which she had made with the company, re

of citizens. This was one of the objects fused to comply with the demands of the sought to be accomplished by the parties. company, and thereupon the company cut its Not only was this a moral duty, but it was water from her residence. This act on the a duty imperatively demanded of them part of the company has caused the plaintiff by the law. A water company acts great annoyance, inconvenience, suffering not a private, but a quasi public, and in addition to this present resulting corporation. 'It enjoys and must exerlitigation has caused expense and annoy- cise its opportunities for gain, subject ance to all of the parties concerned. This to its obligation to the public that it record discloses that the plaintiff is not will supply water without unjust disthe only party in Birmingham with whom crimination and at uniform rates to all the water company has made a contract those along the lines of its mains, who apsimilar to that of the plaintiff, and all ply and tender a reasonable compensation.' of this conflict between the parties, and all 30 Am. & Eng. Enc. Law, 2d ed. 426. of the annoyance, inconvenience, and suffer Referring to the principle above announced, ing which were occasioned the plaintiff by in Mobile v. Bienville Water Supply Co. being denied the defendant's water have 130 Ala. 384, 30 So. 447, it is said: “The been due to the lack of observance by the principle announced is reasonable and defendant and some of its customers of the necessary. Without it the business interabove salutary rules which have been so ests and domestic comfort of the communiplainly announced by this court in a large ty, so far as dependent on supplies such number of its decisions.

companies furnish, would be at their mercy · If contracts of this character are to be and make them masters, in this regard, of upheld and made the basis of recovery in the city they were established to serve.

As an action at law, then uniformity of water said by the supreme court of North Carorates in the municipality of Birmingham lina: “A few wealthy men might combine, disappears, and the water company may and, by threatening to establish competidiscriminate among its customers as it tion, procure very low rates, which the compleases. This the law will not permit it to pany might recoup by raising the price to do. Smith v. Birmingham Waterworks Co. others not financially able to resist—the supra; Birmingham Waterworks Co. v. very class which most needs protection of Birmingham, Ala. 42 So. 10; Grif- the law. The law will not and cannot toler. fin v. Goldsboro Water Co. 122 N. C. 206, ate discrimination in the charges of these 41 L.R.A. 240, 30 S. E. 319.

quasi public corporations. There must be (3) That there is a divergence of views equality of rights to all and special priviamong the courts of last resort on the ques. leges to none; and, if this is violated or untion as to whether, at common law, a pub- reasonable rates are charged, the humblest lic service corporation was under the neces. citizen has the right to invoke the prosity of furnishing to its customers of the tection of the laws equally with any other.” same class the same identical rates, there Griffin v. Goldsboro Water Co. 122 N. C. can be no doubt. Lough v. Outerbridge, 206, 41 L.R.A. 240, 30 S. E. 319. It will 143 N. Y. 271, 25 L.R.A. 674, 42 Am. St. thus be seen that the complainant and reRep. 712, 38 N. E. 292; Louisville & E. spondent were without power to make a & St. L. Consol. R. Co. v. Wilson, 132 Ind. contract providing for unreasonable rates 517, 18 L.R.A. 105, 32 N. E. 311; Cowden or rates not uniform to consumers; nor v. Pacific Coast S. S. Co. 94 Cal. 470, 18 could they make a contract that would perL.R.A. 221, 28 Am. St. Rep. 142, 29 Pac. mit discrimination in favor of certain citi873; Griffin v. Goldsboro Water Co. supra. zens and against others." An examination of those cases

as above

See further on the above subject, Montreported, including the notes and the cases gomery v. Greene, 180 Ala. 322, 60 So. 900, cited in the briefs of counsel, will disclose in which the above doctrine is reaffirmed. the conflict to which we refer.

(4) The opinion on the first appeal in The question, however, was set at rest, this case was prepared for this court by a in so far as this state and the franchise careful and painstaking judge, and was, contract of the Birmingham Waterworks after consultation, adopted as the law of Company are concerned, by this court, in this case. It may be that it failed to measBirmingham Waterworks Co. v. Birming- ure up to the rigid exactions of the law beham, Ala. -, 42 So. 10. In that case cause that sense of fair play which dictated this court said: “An examination of the the rules governing the subject of equality contract clearly shows that it was the in- of rates, which we have above discussed, tention of the parties to secure to the citi- hesitated to concede to one engaged in the zens of Birmingham water at reasonable public service the right to make its own

1

violation of its ordinance contract with the Anderson, Ch. J., concurring: city of Birmingham a justification for de- While fully concurring in the foregoing nying to the plaintiff the right of supply opinion, I do not wish to be understood as ing her residence with water under the approving the contract in question even if terms of an agreement which it had made the terms and rate therein provided were with her. The demands of the rules of law uniform and applied to all of the dwellings which we have above extracted from our of the city. The original ordinance conown cases, appear to be inexorable, and tract between the waterworks and the city those rules appear to rest upon foundations has been several times before this court and which are not only unassailable, but which it was then held that said contract did not were adopted for the public good. In our authorize a meter rate as to dwellings, and opinion the plaintiff's contract with the that they had to be supplied with water defendant was void for the reasons which under a flat rate. Smith v. Birmingham we have above stated, and we do not think Waterworks Co. 104 Ala. 315, 16 So. 123; that it can be upheld in favor of the plain. Birmingham Waterworks Co. v. Birming. tiff under the doctrines announced in 1 ham, Ala. —, 42 So. 10. It may be that Page on Contracts, $$ 330-332, Packard v. the flat rate there provided was the maxiByrd, 73 S. C. 1, 6 L.R.A. (N.S.) 547, 51 mum rate, and that a lower flat rate, if S. E. 678, 9 Cyc. 550, and Trentman v. uniform, would be permissible, but to my Wahrenburg, 30 Ind. App. 304, 65 N. E. mind, a contract on a meter rate is ques1057. In this case the parties made a tionable under any condition. On the other contract which the policy of the law pro- hand, if it be conceded that the company hibited either party to the contract from could make an uniform meter rate which making, and it is familiar doctrine that would be less than the maximum flat rate an agreement void as against public policy as fixed by the ordinance contract, it would cannot be rendered valid by invoking the have to affirmatively appear from the last doctrine of estoppel.

contract that the rate so fixed could not (5) In this case there was, it is true, exceed the maximum flat rate prescribed a dispute as to what amount the plaintiff | by the ordinance contract, and which fact should pay the defendant for water for her does not appear in the present contract, residence. This dispute grew out of the or the provision guarding against this point fact that the plaintiff and the defendant was improperly read into same upon the had made with each other a contract which former appeal of this case. 169 Ala. 230, was void because the law itself condemned 52 So. 915. It may be that the sale of the contract which they made. The reason- water by the meter rate is more equitable ing, therefore of the supreme court of to all parties concerned than by the flat Maine in Wood v. Auburn, 87 Me. 293, 29 rate, but this court must deal with conL.R.A. 376, 32 Atl. 908, and of the supreme tracts as they are, and not as they might court of Mississippi in Cumberland Teleg. or should be. & Teleph. Co. v. Hobart, 89 Miss. 252, 119 Am. St. Rep. 702, 42 So. 349, has no Sayre, J., dissenting: applicability to the facts in this case.

I do not concur in a reversal on the (6) It follows, therefore, that the opin- ground taken in the prevailing opinion. ion of this court on the former appeal I have not examined the record to see (Brown v. Birmingham Waterworks Co. whether there can be other ground of re169 Ala. 230, 52 So. 915), in so far as versal; for, as the case has been decided, it conflicts with the views expressed in this that would be useless. I do not take issue opinion, is expressly overruled. It also with all the broad generalizations of the follows that in our opinion the trial judge opinion. It is to be conceded, for example, committed reversible error in giving to the that, in the absence of a statute controlling jury at the request of the plaintiff, affirma- the subject, a public service corporation tive instructions in her behalf. In our has no right to make unreasonable charges opinion, under the evidence in this case as for its services, and that, if such corporait is disclosed in the bill of exceptions, the tion exacts a compensation in excess of defendant was entitled to affirmative in that which is reasonable, the customer may structions in its behalf.

recover the excess on an indebitatus count. Reversed and remanded.

Here the opinion proceeds on the notion,

not that plaintiff was required to pay too Anderson, Ch. J., and McClellan, much, but that she may have been let off Somerville, and Gardner, JJ.,

with too little. Three things are to be

noted : The ordinance contract does not Mayfield, J., not sitting.

fix any rate absolutely, but only a maxi

mum beyond which defendant could not go; Sayre, J., dissents.

there is no statute or ordinance requiring

concur.

uniformity, though doubtless it would be not require absolute uniformity of rates, better for convenience in administering the nor forbid discrimination by performing the law in such cases that there should be; service for one at rates lower than those the defendant is a private corporation doing exacted of others. The most familiar ilbusiness primarily, it is safe to assume, lustration of pursuits of this character is for the benefit of its stockholders. A that of a common carrier, and the wellmunicipal corporation in many respects recognized rule is, that while the carrier stands on the same footing as a private cannot select his patrons arbitrarily, and corporation engaged in the same line of must furnish equal facilities to all and on business. It occurs to me, however, that equal terms, he is not forbidden to take there is this difference, which may be one customer's goods at an unreasonably worthy of consideration: That the public low rate, or to confer on that customer are quasi stockholders in any municipal other practical advantages in the transbusiness of a private character, and its portation to which competitors and the members as such are entitled, as matter general public are not admitted. Schouler, of law and right, to uniformity of treat. Bailm. & Carr. 380; Hutchinson, Carr. § ment. Being a private corporation, defend 447. The same rule doubtless, where no ant solicited plaintiff to enter into a statutory restriction has intervened, is contract with it. She did so. Defendant equally aplicable to all other kinds of businow contends, or the opinion so holds, that, ness, which have become affected with a the contract being void as against a general public interest, such as that ordinarily carpublic policy requiring uniformity, plain ried on by telegraph or gas companies, the tiff acquired under it no rights which de construction and maintenance of public fendant is bound to respect. I do not say wharves, or maintenance and operation of she was entitled to the contract in the be waterworks in cities.” ginning, though, for aught appearing, she This proposition is discussed and apmay have been. That she could not have proved in Hutchinson on Carriers, ubi required defendant to enter into the con- supra, and Schouler on Bailments and Cartract, assuming that she was tendered a riers, 2d ed. § 380, modern treatises both, contract unduly favorable to her, is all, where many cases, modern and ancient, that a number of the cases cited in the pre- American and English, are cited. vailing opinion go to prove. I do say that "This court can know nothing of public neither the legal nor the moral aspects policy except from the Constitution and the of the defendant's position with reference to laws, and the course of administration and the contract in question carries any appeal decision.” License Tax Cases, 5 Wall. 462, to my mind.

469, 18 L. ed. 497, 500. "When the will In the absence of statute or equivalent of the people has become crystallized into competent municipal ordinance to the con- legislative enactment, and a given subject trary, mere inequality in the charges made has been surrounded by regulations, limitaby a public service corporation does not of tions, and restrictions, the courts are bound itself amount to an unjust discrimination. to consider them as indicating a definite "At the foundation of the whole matter lies policy, and to yield obedience thereto.” the common-law rule, just and well settled, Baum v. Baum, 109 Wis. 47, 53, 53 L.R.A. that in each particular case there should 650, 83 Am. St. Rep. 854, 85 N. W. 122. be charged a reasonable compensation, and But here as I have already noted, nothing no more."

2 Hutchinson, Carr. 3d ed. $ is fixed by the ordinance contract except 521.

the maximum charge, and, I take it, this This was the effect of the language used court would hardly hold absolutely void in State ex rel. Ferguson v. Birmingham contracts establishing a uniform charge Waterworks Co. 164 Ala. 586, 27 L.R.A. more favorable to the people of Birming(N.S.) 674, 137 Am. St. Rep. 69, 51 So. ham. "The power to refuse to enforce a 354, 20 Ann. Cas. 951, though it may have contract as against public policy is one been aside from the precise question there of limits not clearly defined and the courts involved. The idea I find to be more clear- prefer, in cases not settled by recognized ly expressed in Wagner v. Rock Island, 146 precedents, to use such power only in clear Ill. 156, 21 L.R.A. 519, 34 N. E. 549, as The defense of public policy is so follows: “It is a rule of the common law often interposed as a last resort that the that parties carrying on business which is courts have become somewhat suspicious public in its nature, or which is impressed of it. ... There may be said to be a with a public interest, cannot select their strong tendency at modern law to restrict patrons arbitrarily, but must serve all who the operation of public policy as avoiding apply on equal terms, and at reasonable contracts to cases included under recognizerd rates, but this is as far as the rules of the legal principles, or under statutes." The common law seem to have gone. They do 'foregoing sentences have been collated from

cases.

an

1 Page on Contracts, $ 326, a modern and the institution, so to speak, is public, every respectable authority, where many modern member of the community stands on adjudicated cases

are cited,

Here plain. equality as to the right to its benefit, and, tiff did no wrong, she could not be required therefore, the carrier cannot discriminate to know what a reasonable rate would between individuals for whom he will renbe, and defendant was giving the same rate der the service. In the very nature, then, of to others. Nor, for that matter, does it his duty and of the public right, his conappear that defendant, in tendering the duct should be equal and just to all. So, contract, did any wrong or hurt to the pub. also, there is involved in the reasonablelic. The wrong, if any, may have been that ness, of his compensation the same princiall the citizens of Birmingham were not ple. A want of uniformity in price for offered the same rate. So far as anybody the same kind of service under like circumknows, the reduced rate, rather than the stances is most unreasonable and unjust, higher rate which the court has imposed on when the right to demand it is common. plaintiff, was the reasonable rate, and it would be strange if, when the object of should be made the uniform rate. So, in the employment is the public benefit, and my judgment, the contract at the bottom the law allows no discrimination as to inof plaintiff's asserted right was not void, dividual customers, but requires all to be and defendant's appeal to public policy accommodated alike as individuals, and ought not to be entertained in a court of for a reasonable rate, that by the indirect justice.

means of unequal prices some could law

fully get the advantage of the accommodaResponse to Application for Rehearing. tion and others not." Messenger v. Penn

sylvania R. Co. 37 N. J. L. 531, 18 Am. De Graffenried, J.:

Rep. 754. On this application for a rehearing, it is To the same effect is Fitzgerald v. Grand argued that this court, in effect, has held Trunk R. Co. 63 Vt. 169, 13 L.R.A. 70, that the water company may not voluntari. | 3 Inters. Com. Rep. 633, 22 Atl. 76. Inly establish a uniform rate less than the deed, we think that the great weight of maximum rate fixed by the ordinance con- modern authority sustains the conclusions tract referred to in the above opinion. It which have been expressed by this court is also argued that this court has in said in the above opinion. opinion, held, in effect, that said ordinance The application for a rehearing is overcontract cannot be altered by legislative ruled. action taken either directly by the state, or by the state acting through the city. Anderson, Ch. J., and McClellan,

In the above opinion we have confined Somerville, and Gardner, JJ., concur. ourselves to the questions presented by the record, and we have undertaken to decide no Sayre, J., dissents. other question. The above points which it is claimed on this rehearing have been de- Mayfield, J., not sitting. cided, in effect, by the above opinion, have not been before us for review, and they have not, of course, been decided by us. Those

MINNESOTA SUPREME COURT. points, not being raised by this record, cannot in this case be passed upon by this

ELSIE LEDY, Appt., court.

(2) In so far as the question which, NATIONAL COUNCIL OF THE KNIGHTS in this case, we have determined, is con- AND LADIES OF SECURITY, Respt. cerned, we think that the true rule at common law on the subject was correctly

(129 Minn. 137, 151 N. W. 905.) stated by the supreme court of New Jersey Insurance mutual benefit - suicide in the following language: "The business

change of by-laws. of the common carrier is for the public, and 1. Where the insurance contract between it is his duty to serve the public indifferently. He is entitled to a reasonable compen

Headnotes by TAYLOR, C. sation, but on payment of that he is bound Note. – Insurance: subsequent by-law to carry for whoever will employ him, to

excluding or reducing liability in the extent of his ability. A private carrier

case of suicide. can make what contract he pleases. The public have no interest in that, but a serv

This note supplements the note to Su

preme Conclave, 1. 0. H. v. Rehan, 46 L.R.A. ice for the public necessarily implies equal (N.S.) 308, on the same subject. And see treatment in its performance, when the notes there referred to on allied questions. right to the service is common. Because

In harmony with the Illinois decisions

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a fraternal beneficiary association and its | 448, 47 L.R.A. 136, 79 Am. St. Rep. 412, members provided that if the insured com- 81 N. W. 220; Tebo v. Supreme Council, mitted suicide, sane or insane, within two R. A. 89 Minn. 3, 93 N. W. 513; Olson v. years, the association should be liable for Court of Honor, 100 Minn. 117, 8 L.R.A. only one fifth the amount of the benefit certificate, and that the insured should be (N.S.) 521, 117 Am. St. Rep. 676, 110 N. bound by the laws of the order then in W. 374, 10 Ann. Cas. 622. force or thereafter enacted, a subsequent

The statute is not an act which was in amendment making the suicide provision any manner intended to affect or overrule effective for a period of five years is bind- the settled law of the state so far as aftering upon a member who commits suicide enacted by-laws are concerned, and 8 of while sane, and upon those claiming under said chapter merely enacted into statute his benefit certificate.

what was the settled common law of this Evidence sanity.

state. 2. Sanity is presumed, and the taking of Mr. William G. White, for respondent: one's own life does not, in itself, establish

If a reason be sought for the intent of insanity.

the legislature in enacting the statute, it

is clear that it was enacted with the intent (March 19, 1915.)

to supersede the requirement of law as A

the District Court for Ramsey County after-enacted amendments must be "reasondenying her motion for new trial of an

able." action brought to recover the amount of a

Thibert v. Supreme Lodge, K, H. 78 Minn. benefit certificate which had resulted in a 448, 47 L.R.A. 136, 79 Am. St. Rep. 412, judgment in her favor for an amount less 81 N. W. 220; Tebo v. Supreme Council, than demanded. Affirmed.

R. A. 89 Minn. 3, 93 N. W. 513; Olson v. The facts are stated in the Commission Court of Honor, 100 Minn. 117, 8 L.R.A. er's opinion.

(N.S.) 521, 117 Am. St. Rep. 676, 110 N. Messrs. Arthur Christofferson, Joseph W. 374, 10 Ann. Cas. 622; Rosenstein v. A. A. Burnquist, and Alvin B. Christof. Court of Honor, 122 Minn. 310, 142 N. W. ferson, for appellant:

331; Ruder v. National Council, K. L. S. Before the enactment of $ 8, chapter 345, 124 Minn. 431, 145 N. W. 118.

Mr. H. E. Hall also for respondent. of the Laws of 1907, it was the settled law of this state that all after-enacted by-laws, Taylor, C., filed the following opinion: in order to be binding on the insured and On February 12, 1908, defendant, a frahis beneficiaries, must be reasonable. ternal beneficiary association, issued a bene

Thibert v. Supreme Lodge, K. H. 78 Minn. 'fit certificate to Bernard A. Ledy in which set out in that note, Pold v. North Ameri- , Mutual Protective League, 171 Ill. App. can Union, 261 Ill. 433, 104 N. E. 4, af-114, where the certificate provided that it firming 180 Ill. App. 448, where the in- was issued upon the express condition that sured expressly undertook by his certificate the insured should comply with the conto be bound by the laws, rules, and regula- stitution, rules, and by-laws in force, or tions thereafter enacted, and, at the time that might be in force thereafter, a subsethe certificate was issued, it was provided quent resolution which repealed a clause by a by-law that one half the face value of that the certificate should be incontestable the certificate should be paid in case of the after it had been in force two years, and member's suicide while sane or insane, it left in force a provision that only the was held that subsequently enacted amount paid as premiums should be paid amendment providing for the payment of in case of suicide, except in certain cases, only a sum equal to the actual amount paid was held valid, since the insured had agreed in by the insured, in case of suicide, was that the by-laws might be repealed or valid.

amended. And in Streeper v. Mutual Protective And the validity of such changes under League, 186 Ill. App. 535, where a certifi. the Illinois law was recognized in a Miscate was issued subject to all laws, rules, souri court of appeals case, where the inand regulations that might thereafter be surance contract was governed by the laws enacted, a by-law subsequently enacted of Illinois, it being held that under the law which eliminated the exceptions as to sui- of Illinois, where the insured agreed in his cide committed in delirium resulting from application to comply with future laws and illness, or while the member is under treat. regulations of the order, and the certificate ment for insanity, or after he has been issued provided that the benefit should be judicially declared insane, from a previous paid under the conditions of the by-law in by-law that insurer should not be liable in force, or those thereafter adopted, a subsecase of suicide by a member, whether sane quently enacted by-law expressly made apor insane, except for money contributed to plicable to members admitted prior to its the benefit fund by him, was held valid. passage, which provided only for a return

And in another Illinois case, Seymour v. of the amount actually paid in, in case of

a

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