and uniform rates, without discrimination in favor of or against any citizen or number of citizens. This was one of the objects sought to be accomplished by the parties. Not only was this a moral duty, but it was a duty imperatively demanded of them to it. The customer, believing herself en- As law. A water company acts as a private, but a quasi public, 'It enjoys and must exercise its opportunities for gain, subject to its obligation to the public that it will supply water without unjust discrimination and at uniform rates to all those along the lines of its mains, who apply and tender a reasonable compensation.' 30 Am. & Eng. Enc. Law, 2d ed. 426. Referring to the principle above announced, in Mobile v. Bienville Water Supply Co. 130 Ala. 384, 30 So. 447, it is said: "The announced is reasonable and principle Without it the business internecessary. ests and domestic comfort of the community, so far as dependent on supplies such 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. 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 competiit tion, procure very low rates, which the comdiscriminate among its customers as pleases. 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 very class which most needs protection of supra; Birmingham Waterworks Co. Birmingham, Ala. 42 So. 10; Grif- the law. The law will not and cannot tolerfin v. Goldsboro Water Co. 122 N. C. 206, ate discrimination in the charges of these There must be quasi public corporations. 41 L.R.A. 240, 30 S. E. 319. equality of rights to all and special privileges to none; and, if this is violated or unreasonable rates are charged, the humblest citizen has the right to invoke the protection of the laws equally with any other." Griffin v. Goldsboro Water Co. 122 N. C. It will 206, 41 L.R.A. 240, 30 S. E. 319. thus be seen that the complainant and respondent were without power to make a contract providing for unreasonable rates or rates not uniform to consumers; nor could they make a contract that would permit discrimination in favor of certain citizens and against others." V. (3) That there is a divergence of views among the courts of last resort on the question as to whether, at common law, a public service corporation was under the necessity of furnishing to its customers of the same class the same identical rates, there can be no doubt. Lough v. Outerbridge, 143 N. Y. 271, 25 L.R.A. 674, 42 Am. St. Rep. 712, 38 N. E. 292; Louisville & E. & St. L. Consol. R. Co. v. Wilson, 132 Ind. 517, 18 L.R.A. 105, 32 N. E. 311; Cowden v. Pacific Coast S. S. Co. 94 Cal. 470, 18 L.R.A. 221, 28 Am. St. Rep. 142, 29 Pac. 873; Griffin v. Goldsboro Water Co. supra. as above An examination of those cases reported, including the notes and the cases cited in the briefs of counsel, will disclose the conflict to which we refer. See further on the above subject, Montgomery v. Greene, 180 Ala. 322, 60 So. 900, in which the above doctrine is reaffirmed. (4) The opinion on the first appeal in this case was prepared for this court by a careful and painstaking judge, and was, after consultation, adopted as the law of It may be that it failed to meas The question, however, was set at rest, in so far as this state and the franchise contract of the Birmingham Waterworks Company are concerned, by this court, in this case. Birmingham Waterworks Co. v. Birming-ure up to the rigid exactions of the law beAla., 42 So. 10. In that case cause that sense of fair play which dictated ham, 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 violation of its ordinance contract with the city of Birmingham a justification for denying to the plaintiff the right of supplying her residence with water under the terms of an agreement which it had made with her. The demands of the rules of law which we have above extracted from our own cases, appear to be inexorable, and those rules appear to rest upon foundations which are not only unassailable, but which were adopted for the public good. In our opinion the plaintiff's contract with the defendant was void for the reasons which we have above stated, and we do not think that it can be upheld in favor of the plaintiff under the doctrines announced in 1 Page on Contracts, §§ 330-332, Packard v. Byrd, 73 S. C. 1, 6 L.R.A. (N.S.) 547, 51 S. E. 678, 9 Cyc. 550, and Trentman v. Wahrenburg, 30 Ind. App. 304, 65 N. E. 1057. In this case the parties made a contract which the policy of the law prohibited either party to the contract from making, and it is familiar doctrine that an agreement void as against public policy cannot be rendered valid by invoking the doctrine of estoppel. (5) In this case there was, it is true, a dispute as to what amount the plaintiff should pay the defendant for water for her residence. This dispute grew out of the fact that the plaintiff and the defendant had made with each other a contract which was void because the law itself condemned the contract which they made. The reasoning, therefore of the supreme court of Maine in Wood v. Auburn, 87 Me. 293, 29 L.R.A. 376, 32 Atl. 908, and of the supreme court of Mississippi in Cumberland Teleg. & Teleph. Co. v. Hobart, 89 Miss. 252, 119 Am. St. Rep. 702, 42 So. 349, has no applicability to the facts in this case. (6) It follows, therefore, that the opinion of this court on the former appeal (Brown v. Birmingham Waterworks Co. 169 Ala. 230, 52 So. 915), in so far as it conflicts with the views expressed in this opinion, is expressly overruled. It also follows that in our opinion the trial judge committed reversible error in giving to the jury at the request of the plaintiff, affirmative instructions in her behalf. In our opinion, under the evidence in this case as it is disclosed in the bill of exceptions, the defendant was entitled to affirmative instructions in its behalf. Reversed and remanded. Anderson, Ch. J., and McClellan, Somerville, and Gardner, JJ., concur. Mayfield, J., not sitting. Sayre, J., dissents. Anderson, Ch. J., concurring: While fully concurring in the foregoing opinion, I do not wish to be understood as approving the contract in question even if the terms and rate therein provided were uniform and applied to all of the dwellings of the city. The original ordinance contract between the waterworks and the city has been several times before this court and it was then held that said contract did not authorize a meter rate as to dwellings, and that they had to be supplied with water under a flat rate. Smith v. Birmingham Waterworks Co. 104 Ala. 315, 16 So. 123; Birmingham Waterworks Co. v. Birmingham, Ala., 42 So. 10. It may be that the flat rate there provided was the maximum rate, and that a lower flat rate, if uniform, would be permissible, but to my mind, a contract on a meter rate is questionable under any condition. On the other hand, if it be conceded that the company could make an uniform meter rate which would be less than the maximum flat rate as fixed by the ordinance contract, it would have to affirmatively appear from the last contract that the rate so fixed could not exceed the maximum flat rate prescribed by the ordinance contract, and which fact does not appear in the present contract, or the provision guarding against this point was improperly read into same upon the former appeal of this case. 169 Ala. 230, 52 So. 915. It may be that the sale of water by the meter rate is more equitable to all parties concerned than by the flat rate, but this court must deal with contracts as they are, and not as they might or should be. Sayre, J., dissenting: I do not concur in a reversal on the ground taken in the prevailing opinion. I have not examined the record to see whether there can be other ground of reversal; for, as the case has been decided, that would be useless. I do not take issue with all the broad generalizations of the opinion. It is to be conceded, for example, that, in the absence of a statute controlling the subject, a public service corporation has no right to make unreasonable charges for its services, and that, if such corporation exacts a compensation in excess of that which is reasonable, the customer may recover the excess on an indebitatus count. Here the opinion proceeds on the notion, not that plaintiff was required to pay too much, but that she may have been let off with too little. Three things are to be noted: The ordinance contract does not fix any rate absolutely, but only a maximum beyond which defendant could not go; there is no statute or ordinance requiring uniformity, though doubtless it would be not require absolute uniformity of rates, In the absence of statute or equivalent competent municipal ordinance to the contrary, mere inequality in the charges made by a public service corporation does not of itself amount to an unjust discrimination. "At the foundation of the whole matter lies the common-law rule, just and well settled, | that in each particular case there should be charged a reasonable compensation, and no more." 2 Hutchinson, Carr. 3d ed. § 521. This was the effect of the language used in State ex rel. Ferguson v. Birmingham Waterworks Co. 164 Ala. 586, 27 L.R.A. (N.S.) 674, 137 Am. St. Rep. 69, 51 So. 354, 20 Ann. Cas. 951, though it may have been aside from the precise question there involved. The idea I find to be more clearly expressed in Wagner v. Rock Island, 146 Ill. 156, 21 L.R.A. 519, 34 N. E. 549, as follows: "It is a rule of the common law that parties carrying on business which is public in its nature, or which is impressed with a public interest, cannot select their patrons arbitrarily, but must serve all who apply on equal terms, and at reasonable rates, but this is as far as the rules of the common law seem to have gone. They do This proposition is discussed and approved in Hutchinson on Carriers, ubi supra, and Schouler on Bailments and Carriers, 2d ed. § 380, modern treatises both, where many cases, modern and ancient, "This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision." License Tax Cases, 5 Wall. 462, 469, 18 L. ed. 497, 500. "When the will of the people has become crystallized into legislative enactment, and a given subject has been surrounded by regulations, limitations, and restrictions, the courts are bound to consider them as indicating a definite policy, and to yield obedience thereto." Baum v. Baum, 109 Wis. 47, 53, 53 L.R.A. 650, 83 Am. St. Rep. 854, 85 N. W. 122. But here as I have already noted, nothing is fixed by the ordinance contract except the maximum charge, and, I take it, this court would hardly hold absolutely void contracts establishing a uniform charge more favorable to the people of Birmingham. "The power to refuse to enforce a contract as against public policy is one of limits not clearly defined and the courts prefer, in cases not settled by recognized precedents, to use such power only in clear cases. The defense of public policy is so often interposed as a last resort that the courts have become somewhat suspicious of it.. There may be said to be a strong tendency at modern law to restrict the operation of public policy as avoiding contracts to cases included under recognized legal principles, or under statutes." The foregoing sentences have been collated from 1 Page on Contracts, § 326, a modern and respectable authority, where many modern adjudicated cases are cited. Here plaintiff did no wrong, she could not be required to know what a reasonable rate would be, and defendant was giving the same rate to others. Nor, for that matter, does it appear that defendant, in tendering the contract, did any wrong or hurt to the public. The wrong, if any, may have been that all the citizens of Birmingham were not offered the same rate. So far as anybody knows, the reduced rate, rather than the higher rate which the court has imposed on plaintiff, was the reasonable rate, and should be made the uniform rate. So, in my judgment, the contract at the bottom of plaintiff's asserted right was not void, and defendant's appeal to public policy ought not to be entertained in a court of justice. Response to Application for Rehearing. De Graffenried, J.: On this application for a rehearing, it is argued that this court, in effect, has held that the water company may not voluntari ly establish a uniform rate less than the maximum rate fixed by the ordinance contract referred to in the above opinion. It is also argued that this court has in said opinion, held, in effect, that said ordinance contract cannot be altered by legislative action taken either directly by the state, or by the state acting through the city. In the above opinion we have confined ourselves to the questions presented by the record, and we have undertaken to decide no other question. The above points which it is claimed on this rehearing have been decided, in effect, by the above opinion, have not been before us for review, and they have not, of course, been decided by us. Those points, not being raised by this record, cannot in this case be passed upon by this court. (2) In so far as the question which, in this case, we have determined, is concerned, we think that the true rule at common law on the subject was correctly stated by the supreme court of New Jersey in the following language: "The business of the common carrier is for the public, and it is his duty to serve the public indifferently. He is entitled to a reasonable compensation, but on payment of that he is bound to carry for whoever will employ him, to the extent of his ability. A private carrier can make what contract he pleases. The public have no interest in that, but a service for the public necessarily implies equal treatment in its performance, when the right to the service is common. Because the institution, so to speak, is public, every member of the community stands on an equality as to the right to its benefit, and, therefore, the carrier cannot discriminate between individuals for whom he will render the service. In the very nature, then, of his duty and of the public right, his conduct should be equal and just to all. So, also, there is involved in the reasonableness, of his compensation the same principle. A want of uniformity in price for the same kind of service under like circumstances is most unreasonable and unjust, when the right to demand it is common. It would be strange if, when the object of the employment is the public benefit, and the law allows no discrimination as to individual customers, but requires all to be accommodated alike as individuals, and for a reasonable rate, that by the indirect means of unequal prices some could lawfully get the advantage of the accommodation and others not." Messenger v. Pennsylvania R. Co. 37 N. J. L. 531, 18 Am. Rep. 754. To the same effect is Fitzgerald v. Grand Trunk R. Co. 63 Vt. 169, 13 L.R.A. 70, 3 Inters. Com. Rep. 633, 22 Atl. 76. Indeed, we think that the great weight of modern authority sustains the conclusions which have been expressed by this court in the above opinion. The application for a rehearing is overruled. APPEAL by plaintiff from a judgment of the District Court for Ramsey County denying her motion for new trial of an action brought to recover the amount of a benefit certificate which had resulted in a judgment in her favor for an amount less than demanded. Affirmed. The facts are stated in the Commissioner's opinion. Messrs. Arthur Christofferson, Joseph A. A. Burnquist, and Alvin B. Christofferson, for appellant: 448, 47 L.R.A. 136, 79 Am. St. Rep. 412, 81 N. W. 220; Tebo v. Supreme Council, R. A. 89 Minn. 3, 93 N. W. 513; Olson v. Court of Honor, 100 Minn. 117, 8 L.R.A. (N.S.) 521, 117 Am. St. Rep. 676, 110 N. W. 374, 10 Ann. Cas. 622. The statute is not an act which was in any manner intended to affect or overrule the settled law of the state so far as afterenacted by-laws are concerned, and § 8 of said chapter merely enacted into statute what was the settled common law of this state. Mr. William G. White, for respondent: If a reason be sought for the intent of the legislature in enacting the statute, it is clear that it was enacted with the intent to supersede the requirement of law as declared by this court to the effect that after-enacted amendments must be "reason able." Thibert v. Supreme Lodge, K. H. 78 Minn. 448, 47 L.R.A. 136, 79 Am. St. Rep. 412, 81 N. W. 220; Tebo v. Supreme Council, R. A. 89 Minn. 3, 93 N. W. 513; Olson v. Court of Honor, 100 Minn. 117, 8 L.R.A. (N.S.) 521, 117 Am. St. Rep. 676, 110 N. W. 374, 10 Ann. Cas. 622; Rosenstein v. Court of Honor, 122 Minn. 310, 142 N. W. 331; Ruder v. National Council, K. L. S. Before the enactment of § 8, chapter 345, 124 Minn. 431, 145 N. W. 118. of the Laws of 1907, it was the settled law of this state that all after-enacted by-laws, in order to be binding on the insured and his beneficiaries, must be reasonable. Thibert v. Supreme Lodge, K. H. 78 Minn. set out in that note, Pold v. North American Union, 261 Ill. 433, 104 N. E. 4, affirming 180 Ill. App. 448, where the insured expressly undertook by his certificate to be bound by the laws, rules, and regulations thereafter enacted, and, at the time the certificate was issued, it was provided by a by-law that one half the face value of the certificate should be paid in case of the member's suicide while sane or insane, it was held that a subsequently enacted amendment providing for the payment of only a sum equal to the actual amount paid in by the insured, in case of suicide, was valid. And in Streeper v. Mutual Protective League, 186 Ill. App. 535, where a certificate was issued subject to all laws, rules, and regulations that might thereafter be enacted, a by-law subsequently enacted which eliminated the exceptions as to suicide committed in delirium resulting from illness, or while the member is under treatment for insanity, or after he has been judicially declared insane, from a previous by-law that insurer should not be liable in case of suicide by a member, whether sane or insane, except for money contributed to the benefit fund by him, was held valid. And in another Illinois case, Seymour v. Mr. H. E. Hall also for respondent. Taylor, C., filed the following opinion: On February 12, 1908, defendant, a fraternal beneficiary association, issued a benefit certificate to Bernard A. Ledy in which Mutual Protective League, 171 Ill. App. 114, where the certificate provided that it was issued upon the express condition that the insured should comply with the constitution, rules, and by-laws in force, or that might be in force thereafter, a subsequent resolution which repealed a clause that the certificate should be incontestable after it had been in force two years, and left in force a provision that only the amount paid as premiums should be paid in case of suicide, except in certain cases, was held valid, since the insured had agreed that the by-laws might be repealed or amended. And the validity of such changes under the Illinois law was recognized in a Missouri court of appeals case, where the insurance contract was governed by the laws of Illinois, it being held that under the law of Illinois, where the insured agreed in his application to comply with future laws and regulations of the order, and the certificate issued provided that the benefit should be paid under the conditions of the by-law in force, or those thereafter adopted, a subsequently enacted by-law expressly made applicable to members admitted prior to its passage, which provided only for a return of the amount actually paid in, in case of |