“ ‘A municipal corporation, which supplies its inhabitants with water, does so in the capacity of a private corporation, and not in the exercise of the power of local sovereignty.’ 30 Am. & Eng., Encyc. of Law, 404.”
How later courts described this case
- “ ‘A municipal corporation, which supplies its inhabitants with water, does so in the capacity of a private corporation, and not in the exercise of the power of local sovereignty.’ 30 Am. & Eng., Encyc. of Law, 404.”
Written by the judges who cited it.
The opinion
ON REHEARING.
ANDERSON, J.
The rulings in this case are predicated upon the averments of the hill of complainant which was before the court, and said facts were not misunderstood, and are now understood to be substantially as contended for in brief upon rehearing, and a restatement of same is unnecessary. We did not hold that the city must continue to use the pipe in question instead of laying a new main in its place, if it prefers incurring the additional expense. We did hold, however, and which we repeat, that, notwithstanding the pipe was laid by property owners, it was along a highway; and after the city availed itself of the authority, given by the statute, to extend its water system throughout the town of Cloverdale, which is within its police jurisdiction, and continued to use this pipe, that it became its duty to maintain it, especially after the owners had offered it to the city, else give them a main and separate meters, as the bill avers was being done for the other citizens of Cloverdale, and who were within close proximity to these complainants. We also repeat that the Brown Case, supra, has considerable bearing on this question. Counsel concede the soundness of the Brown Case, supra, but contend that it has no application to the present case, for the reason that .the city of Montgomery had no right, authority, or jurisdiction over the streets of Cloverdale, and along which this pipe is laid. The bill avers that it has been sup *332 plying. water to other citizens of Cloverdale through mains or pipes laid upon the streets of said municipality; and it would no doubt have as much right to excavate the highway upon which the present pipe is as it had to lay mains upon other highways of Clover-dale. Section 4 of the Act of 1891, p. 243, authorizes the city, among other things, to “extend such waterworks into any part of the police jurisdiction of said city as it may deem proper, ■ and in the event all the powers herein given such city shall apply to such portion of said waterworks.” In other words, the city has as much authority to excavate the streets of Clover-dale as it has the streets of Montgomery for the purpose of maintaining and operating its water system. The act, therefore, refutes the distinction attempted as showing the nonapplicability of the Brown Case, supra.
As to the right of the city to discriminate, counsel concede that the opinion is sound in holding that the charge for water was not a tax, and that the fact that one is within, and one beyond, the corporate limits is not such a substantial difference as will authorize a discrimination as to charges, but proceed to argue upon the theory that the taxpayer within the city should require better rates than those in Cloverdale, notwithstanding Cloverdale is within the police jurisdiction of the city of Montgomery. The argument proceeds as follows: “We have read, with great care, the court’s decision upon this phase of the case. The opinion is permeated with, and based upon, a false conception, We are not here concerned with a private corporation engaged in the business of supplying water to the public for profit to its stockholders. Were that the case, the court’s decision would be above criticism.” In other words, the opinion is wrong only because the water *333 system is owned and operated by tbe municipality instead of a private corporation.
We reply that, if the opinion would be correct as to a private corporation, it is bound to be correct as to a. municipality which operates the water system, else the authorities are all wrong. “A municipal corporation, which supplies its inhabitants with water, does so in the capacity of a private corporation, and not in the exercise of the power of local sovereignty.”—30 Am. & Eng. Encyc. of Law, 404. Municipalities stand upon the same footing in this respect as would an individual or private corporation. —Wagner v. Rock Island, 146 Ill. 139 , 34 N. E. 545 , 21 L. R. A. 519; Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669 ; Western Sav. Fund v. Philadelphia, 31 Pa. 175 , 72 Am. Dec. 730 ; Brumm’s Appeal (Pa.) 12 Atl. 855 .