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(100 So.)

thorized to supply light or electric power to STATE ex rel. LAMMONS V. COMMANDER inhabitants thereof, may not discriminate et al. (4 Div. 116.)

between those of the same class; all persons (Supreme Court of Alabama. May 1, 1924.) being entitled to have the same service on

equal terms and uniform rate. The general 1. Electricity Mil-Municipality may not dis- principle insisted upon is well recognized criminate.

(15 Cyc. 470; 40 Cyc. 791), and was given Municipality, authorized to supply light or full application by this court in City of electric power to inhabitants, may not dis- Montgomery V. Greene, 180 Ala. 322, 60 criminate between those of same class; all be- South. 900; Id., 187 Ala. 196, 65 South. 783. ing entitled to same service on equal terms

[2] It is equally well settled that such a and uniform rates.

municipality may enforce reasonable and 2. Electricity Enll-Municipality may enforce just rules and regulations which do not disreasonable rules, which do not discriminate. criminate (30 Am. & Eng. Ency. of Law [2d

Municipality, authorized to supply light and Ed.) 418-420; Watauga v. Wolfe, 99 Tenn. power, may enforce reasonable and just rules 429, 41 S. W. 1060, 63 Am. St. Rep. 841), and and regulations, which do not discriminate.

that rule above noted does not require 3. Electricity Coll-Discrimination in requir- absolute uniformity of rates in all cases, ing customer to pay for transmission line but a reasonable discretion is lodged in the held authorized.

authorities so long as there is no unjust Where, on account of plaintiff's indebted- discrimination (30 Am. & Eng. Ency. [2d Dess to municipality for power service fur- Ed.] 427; State ex rel. Ferguson v. Birmingnished, he was not in same class with competi- ham Waterworks Co., 164 Ala. 586, 51 South. tor, who owed city nothing, there was no un- 354, 27 L. R. A. (N. S.] 674; Brown v. Birjust disèrimination in requirement that, if cur- mingham Waterworks, 169 Ala. 230, 52 rent be furnished, plaintiff must bear expense

South. 915).
of new transmission line, which would be
credited on his debt.

[3] The trial court reached the conclusion

that the facts in evidence failed to show any 4. Mandamus fm 10--Relator must have right unjust discrimination, and in this we conto thing demanded and respondents duty to

The evidence for the respondents tend. perform.

ed to show that current was furnished F. To justify mandamus, relator must have clear legal right to thing he demands, and it F. Lammons, the husband of relator, for the must be duty of respondents to perform thing operation of the motor in the gin for the required.

year 1922, and that more than $1,000 was

still due and unpaid on account thereof. On Appeal from Circuit Court, Geneva Coun. May 7, 1923, said F. F. Lammons appeared ty; H. A. Pearce, Judge.

before the council of the town of Hartford Petition by the State of Alabama, on the with one Metcalf, who also operated a gin,

and the rate for current was agreed upon. relation of Enoona Lammons, for mandamus The town authorities were of the opinion, to P. D. Commander and others. From a however, that the transmission line for the judgment denying the writ, relator appeals.

purpose then in use was not adequate for Affirmed.

the current, and that a new and larger wire E. C. Boswell, of Geneva, for appellant. was necessary to be installed. The munici. Mulkey & Mulkey, of Geneva, for appel- pality was without the necessary funds, and lees.

an agreement was finally reached with Lam.

mons that, if he would bear the expense of GARDNER, J. Appellant fled this peti- the purchase of so much of the wire as nec tion for mandamus against the appellees, essary to make connection with his gin, the who constitute the governing body of the municipality would order the same; the town of Hartford, Ala., seeking to 'compel amount expended by Lammons therefor to these authorities to make the necessary con- í be credited on the account which he was nection of their electric transmission lines due for the previous year. Evidence for with the electric motor now installed in the the respondent is to the effect that the relator's ginhouse in said town of Hart- amount last year agreed upon was about ford, and to supply electric power necessary $265, which Lammons agreed to pay and for the operation of said motor. The re- credit on the previous year's account, and spondents duly filed their answer, and the that the wire was so ordered, and Lammons evidence was heard orally before the court. refused to pay the amount agreed upon; The trial judge reached the conclusion that hence no connection was made. Thereupon the relator was not entitled to the relief relator filed this petition for mandamus. prayed and rendered judgment accordingly, We are mindful that Lammons insists, from which the relator has prosecuted this and offers testimony tending to support his appeal.

insistence, that he did not agree that any [1] Counsel for appellant rests his case such payment should go upon the account of upon the principle that a municipality, au- l the previous year, but that his understand.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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was

ing was that it should be credited upon the chargeable with any of his previous indebtcurrent account. It appears, however, the edness. F. F. Lammons, the husband, howtrial court found the facts in substance as ever, owned the property the previous year, above outlined, and a careful reading of the but it was foreclosed under mortgage, one record discloses that his finding was amply | D. M. Lammons purchasing at the foreclosupported by the proof.

sure sale, and relator redeeming from the is insisted that Lammons was being latter. According to the testimony of F. F. discriminated against, and that his competi- Lammons, his wife came into possession of tor, Metcalf, was not required to pay for the this property about May 18, 1923, while his installation of this new wire. This insist- first appearance before the council was a ence, however, overlooks the fact that Lam- few days previous thereto, on May 7th. The mons and Metcalf were not in the same town authorities clearly had no intimation class, as the former was largely indebted to that this relator was interested in the propthe municipality for current for the previ- erty, and were justified in assuming that F. ous year, while the latter owed the town F. Lammons still owned the property in all nothing. Moreover, there evidence their negotiations with him. The testimony tending to show there was no absolute re- of F. F. Lammons also clearly shows that quirement on the part of the municipality, he continued in full management and conbut an agreement voluntarily and amicably trol of the gin property, making all payentered into between Lammons and the ments and settlements, and looking after the town authorities that he would pay the property just as he had done previously, agreed sum for the wire, the amount paid when in full ownership thereof. to be credited upon his indebtedness. But, Looking through form to substance, there had this been a requirement, it has not been fore, F. F. Lammons, so far as the town made to appear that such would have been authorities knew and were concerned, was unreasonable or unjust, in view of the large still the customer of the town for this curindebtedness of Lammons for current for rent. Moreover, it clearly appears from his the previous year, and the extra expenditure own testimony that he had full authority to necessary to render the particular service make all settlements and arrangements, satisfactory. 30 Am. & Eng. Ency. Law (20 and, considering that he was acting as agent Ed.) pp. 419, 420.

for his wife, she was, under these circumWhile it appears that Lammons had a stances, fully bound by his agreement, and, judgment against the town for $3,500, yet it so far as relief by way of mandamus is conwas shown without dispute that it was cerned, stands in his stead and occupying agreed this judgment should not be en- no better position than were he the relator forced, except in the event and to the ex- himself. tent the town might be able to collect from It results, in our opinion, the petition was the Houston Power Company, from which properly dismissed, and the judgment of source it received its electric power. The the court below will be accordingly here matter of this judgment therefore may be affirmed. laid out of view. So far, therefore, as the Affirmed. controversy between Lammons and the town authorities is concerned, the latter refused ANDERSON, C. J., and SAYRE and MILto make the connection, according to their LER, JJ., concur. proof, merely because Lammons failed to meet the payments for the new wire, as had been voluntarily agreed.

[4] It is well understood that, to justify the issuance of a writ of mandamus, it is STATE ex rel. DAVIS, Sol., v. BROWN et al. necessary that the relator have a clear le

(6 Div. 37.) gal right to the thing he lemands, and it must be the clear legal duty of the respond (Supreme Court of Alabama. April 10, 1924. ents to perform the thing required. Citi

Rehearing Denied May 15, 1924.) zens' Bk, & Sec. Co. v. Com. Ct. of De Kalb

1. Nuisance 084-Evidence of general rep. Co., 209 Ala. 646, 96 South. 778; Cloe v.

utation of house of prostitution admissible. State, 209 Ala, 544, 96 South. 704. Clear

Under Gen. Acts 1919, p. 55, § 5, testimony ly, therefore, under these circumstances, as to general reputation of alleged house of Lammons would not be entitled to a manda- prostitution, as well as of inmates, is admissimus against the town of Hartford.

ble in suit to enjoin operation as nuisance. But counsel for appellant argue that all

2. Appeal and error the facts as to the agreement between Lam

Om 1054(1)-Admission of

evidence of bad reputation of alleged disormons and the municipality are irrelevant,

derly house held not prejudicial error. for the reason that the relator is the owner

In suit to enjoin operation of house of of the property, and not her husband, F. F. prostitution, admission of police officers' tes. Lammons, and that he merely appeared be- timony as to general reputation of house held fore the council as her agent-she not being not prejudicial to respondent, in view of court's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) rejection of same witnesses' testimony as to, Wooster v. State, 55 Ala. 217; Sparks v. bad reputation of respondent and other inmates. State, 59 Ala. 82; Toney v. State, 60 Ala. 3. Appeal and error C 1009 (4)-Decree not 97; Ramsey v. Smith, 138 Ala. 333, 35 South. set aside unless contrary to great weight of | 325. The weight of the modern authorities evidence.

is apparently against this rule of exclusion. Decree for respondent on testimony of wit. 18 Corp. Jur. 1266 [8 92), notes 48 and 49; nesses, seen and heard by trial judge, in suit Wigmore on Evidence (2d Ed.) 88 78 and to enjoin operation of house of prostitution, will 1620; Underhill on Cr. Evidence (3d Ed.) § not be set aside unless contrary to great weight 702; 12 Ann. Cas. 273, note. of evidence.

However, the act of the Legislature which 4. Nuisance 88 Costs cannot be taxed authorizes and regulates this proceeding by against state.

bill in equity (Gen. Acts 1919, p. 55, § 5) deIn absence of statutory authority, cost of clares: proceeding by state to enjoin operation of house of prostitution cannot be taxed against

"In such action, evidence of the general repstate on dismissal of bill.

utation of the place (i. e., the place where lewdness, assignation, or prostitution is conducted]

sball be admissible for the Appeal from Circuit Court, Jefferson Coun- purpose of proving the existence of said nuito; William M. Walker, Judge.

sance and shall be prima facie evidence of Bill for injunction by the State of Alabama, such nuisance and of knowledge of, and acon the relation of Jim Davis, Solicitor of quiescence and participation therein, on the the Tenth Judicial Circuit, against Hattie part of the person or persons charged with Brown and H. C. Bartelson. From a decree maintaining such nuisance as herein defined.” for respondents, complainant appeals. Corrected and affirmed.

It was within the power of the Legislature

to make such evidence admissible; and, Jim Davis, of Birmingham, for appellant. there being a logical and reasonable relation Roderick Beddow, of Birmingham, for ap- between the fact and the inference, to depellees.

clare the prima facie effect of the fact of

such general reputation in the proof of the SOMERVILLE, J. The bill of complaint fact of lewdness or prostitution in the con. Fas filed by the state of Alabama, on the duct of the place. Zeigler v. S. & N. A. R. relation of the solicitor of the Tenth judicial R. Co., 58 Ala. 591, 599; Doe v. Minge, 56 circuit. It charges that the respondent Hat- | Ala. 121, 125; Stoudenmire v. Brown, A8 Ala. tie Brown is operating or conducting a house 699; State v. Haberle, 72 Iowa, 138, 33 N. of prostitution at a certain place in Birming- W. 461; State v. Wilson, 124 Iowa, 264, 99 ham, or is aiding or abetting therein, and N. W. 1060. that the place so conducted is a menace to A great many states have adopted provithe public morals and health. The respond- sions like this, and their constitutionality ent denied the charges of the bill, and a trial does not seem to have been seriously doubtof the issue was had on the testimony of a ed. 18 Corp. Jur. 1267 [8 92], note 49, and number of witnesses for both the state and cases thereunder cited. the respondent, who were heard by the trial We therefore hold that the proffered testijudge orally in open court. A decree was mony was admissible by virtue of the prorendered in favor of the respondent, the bill vision of section 5 of the act, and should of complaint was dismissed, and the costs have been received. taxed against the complainant.

[2] We are satisfied, however, that its re-
[1] Several police officers, witnesses for ception and consideration by the trial court
the state, testified to the bad reputation of would not have affected the conclusion of
women alleged to have been living in the the trial court upon the issue of fact deter-
bouse with the respondent; and the solicitor mined, since it would have come from the
offered to show by each of them that he mouths of the same witnesses who testified
knew the general reputation of the house, to the bad reputation of respondent and of
and that it had the general reputation of other women who lived in the house, and to
being a bawdyhouse, or a house where acts specific acts of lewdness alleged to have been
of lewdness or prostitution were carried on. witnessed by them; and whose testimony.
This testimony was excluded by the trial was rejected by the court, in the face of the
court, and the ruling is assigned for error. contradictory testimony of more numerous
On common-law principles, it has been the witnesses for respondent who were not in
settled rule in this state that, though evi- any way impeached.
dence may be given of the general reputa [3] As to the decree in favor of respond-
tion for lewdness of the inmates of a house ent, with or without the rejected testimony,
the character of the house for lewdness—or, the witnesses having been seen and heard
more properly, the character and mode of by the trial judge, we would not be justified
its operation-cannot be shown by evidence in setting it aside as contrary to the great
of the general reputation of the house. weight of the evidence.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
100 SO.--15

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[4] We are not aware of any statutory pro- longing to plaintiff held demurrable under Code vision for taxing the costs of this proceed- 1907, vol. 2, p. 1201, form 31. ing against the state when the bill of com. 3. Landlord and tenant 230(1)-Count in plaint is dismissed. In the absence of such action for rent held not demurrable, though authority, the decree so taxing the costs in not in statutory form. this case was erroneous. Pollard v. Brewer, Under Code 1907, 88 4731, 4737, a count of 59 Ala. 130, 134; Dawson v. Matthews, 103 a complaint, in action for rent, averring deAla. 485, 17 South. 19. In that respect the fendant owed plaintiff stated amount for rental decree will be corrected, and as thus cor- of described property for stated time and that rected it will be affirmed.

defendant occupied during that time as tenant

of plaintiff, held not demurrable, though not in Corrected and affirmed.

conformity with Code 1907, vol. 2, p. 1200,

form 30. ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

4. Appeal and error Om 1040(4)—Sustaining

demurrer to count of complaint held harmless error in view of other counts.

Erroneous sustaining demurrer to count of complaint held not reversible error, where

same cause of action was stated in other counts STATE ex rel. DAVIS, Solicitor, V. Julia under which plaintiff had benefit. SMITH, alias Borders. (6 Div. 35.)

5. Landlord and tenant 231(2) -Use and

occupation O9-Exclusion of (Supreme Court of Alabama. April 17, 1924.)

evidence showing duration of occupation under lease

and after it expired held error. Appeal from Circuit Court, Jefferson Coun.

In action for reasonable rent for property ty; William M. Walker, Judge.

to particular date and use and occupation after Jim Davis, of Birmingham, for appellant. that date, exclusion of evidence tending to

Roderick Beddow, of Birmingham, for ap- show how long defendant was in possession of pellce.

land under leases and how long he remained by

sufferance of lessor after expiration of leases THOMAS, J. The decree of the circuit court held improper. will be affirmed as to the findings of fact. The testimony was taken ore tenus before the judge 6. Evidence en 471 (27)-Occupancy of land is renděring the decree. The rule of Hackett

fact to which witness with knowledge may v. Cash, 196 Ala. 403, 72 South. 52, was ex

testify. tended to chancery causes'in Andrews v. Grey,

Possession or actual occupancy of land is 199 Ala. 152, 74 South. 62, and Ray y. Wat- a fact to which a witness with knowledge of it kins, 203 Ala. 683, 85 South. 25. As to tax- can testify. ing costs against complainant, the decree is corrected on authority of State ex rel. Davis, 7. Use and occupation 9–Evidence of title

as a basis of action or defense improper. as Solicitor, v. Brown et al. (Ala. Sup.) 100 South. 224; the state's said agent may not be

In action for the use and occupation of taxed with the costs.

land, evidence of title as a basis of action or The decree of the circuit court, in equity, is defense has no proper place. corrected and affirmed.

8. Landlord and tenant Cawa 231 (2)-Use and Corrected and affirmed.

occupation CwIEvidence affecting plain

tiff's title held properly excluded. ANDERSON, C. J., and SOMERVILLE and

In action for rent and for use and occupaBOULDIN, JJ., concur.

tion of land acquired by plaintiff, during defendant's occupancy, from widow whose right was derived through probate court proceedings, evidence relating to such proceedings admissi

ble only on issue of extent of possession, which DAVIS v. REED. (6 Div. 105.)

was not in dispute, held properly excluded; ti

tle of plaintiff or his grantor being not before (Supreme Court of Alabama. April 24, 1924.) court. 1. Landlord and tenant am 230(1)-Count of 9. Landlord and tenant am 231(2)-Use and complaint in action for rent held demurrable. occupation C9-Deed to plaintiff of land In action for rent, count of complaint which

held admissible to show assignment of right did not follow Form 30, Code 1907, vol. 2, p.

to sue. 1200, and failed to aver any demise by plaintiff In action for reasonable rent and for use to defendant, or any rental contract, or that and occupation of property by defendant under defendant occupied the property under rent and after expiration of a lease by plaintiff's contract, held demurrable.

grantor, deed to plaintiff was, under Code 1907,

88 4731, 4737, and section 4753, subds. 1 and 3, 2. Use and occupation Om Count of com- admissible to show an assignment to plaintiff

plaint in action for use and occupation held of rent to accrue under lease or of other right demurrable.

to recover for use and occupation and to fix date In action for use and occupation of land, from which plaintiff was entitled to recover, count of complaint failing to aver property be- I though inadmissible to show title in plaintiff.

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(100 So.)
10. Vendor and purchaser 196-Grantee of defendant occupied the property under rent
land entitled to recover of occupant rent sub-contract owned by plaintiff. The demurrers
sequently accruing or compensation for use of defendant to this count were properly sus.
and occupancy.

tained by the court. Form 30, p. 1200, Code
A grantee of land is entitled to recover 1907; Burgess v. Am. M. Co., 115 Ala. 468,
from grantor's lessee rents subsequently ac-

22 South, 282; Rutherford v. Cowling, 200 cruing, or, if the lease has expired, he is en

Ala. 556, 76 South. 914. titled to recover for use and occupancy.

[2] Count 2 purports to be a count for use
II. Landlord and tenant Cw231 (2)-Use and and occupation of this property for and dur-
occupation om 9 – Deeds to plaintiff showing ing the year 1919, but it is insufficient, as it
title held properly excluded.

fails to aver this property belonged to the
In action for rent under lease made by plaintiff. The demurrers of defendant point-
plaintiff's grantor and for use and occupation
after expiration of such lease term, deeds to ed out this defect, and they were properly

Form 31, p. 1201,
plaintiff by children of his grantor, releasing sustained by the court.
their interests in the land, held properly ex-

Code 1907.
cluded; plaintiff's title being not involved, and The plaintiff amended the complaint by
Deither of the grantors in such conveyances be- adding counts 3, 4, 5, 6, and 7. Demurrers
ing lessors under whom plaintiff claimed. of defendant to count 3 were sustained by
12. Landlord and tenant 231(2)-Use and the court, and demurrers of defendant to
occupation om 9-Letter by plaintiff's grant counts 4, 5, 6, and 7 were overruled by the
or's daughter claiming of defendant interest court.
In rents held properly excluded.

[3] In count 3 plaintiff "claims of the de
In action for rent accruing under lease by fendant $360 for rent of the following prem-
plaintiff's grantor and for use and occupancy ises in Palos [describing them), together with
of land after expiration of lease period, a leto storehouse and dwelling house thereon, which
ter written by plaintiff's grantor's daughter, premises defendant occupied," during each
previous to conveyance, to plaintiff, demanding of the months of the year 1919, “as a tenant
that defendant account to her for her share in of plaintiff, and for which he owes plaintiff
such rents, held properly excluded under Code
1907, $ 4731; there being no evidence that de- the reasonable rental value thereof, viz., $360,
fendant ever attorned to daughter.

for which plaintiff súes." It avers defend

ant owes plaintiff $360 for the reasonable Appeal from Circuit Court, Jefferson Coun- rental value of the property for the year 1919 ty; Richard V. Evans, Judge.

as a tenant of plaintiff, and that defendant

occupied the property during that year as
Action for rent, use, and occupation, by
J. H. Davis against G. W. Reed.

Follow- a tenant of plaintiff; and it describes the
ing adverse rulings on pleadings and evi- property occupied by defendant as his tenant.

[4] The defendant could not be the tendence, plaintiff took a nonsuit and appeals. ant of plaintiff for rent of the property, Transferred from Court of Appeals under unless the plaintiff was landlord, or unless section 6, p. 449, Acts 1911. Reversed and there was a demise of the property to the remanded.

defendant with which the plaintiff was conHarsh, Harsh & Harsh, of Birmingham, nected by transfer or assignment from the for appellant.

lessor. While this count does not follow the Sterling A. Wood, of Birmingham, for words in the form numbered 30, p. 1200, appellee.

Code 1907, still it states 'a cause of action

for rent between plaintiff and the defendant;
MILLER, J. This is an action for rent and the court erred in sustaining the de-
and for use and occupation of land, with murrers to it. Sections 4731, 4737, Code
storehouse and dwelling house thereon. It 1907; English v. Key, 39 Ala. 113. But this
was commenced by J. H. Davis against G. | is not reversible error, as the same cause of
W. Reed. The plaintiff took an involuntary action was stated in other counts in the
nonsuit by reason of adverse rulings of the complaint under which plaintiff had this
court on pleadings and evidence, and from a benefit.
judgment of the court entering the nonsuit, Plaintiff, in count 4, claims $500 for the
dismissing the cause, and taxing plaintiff use and occupation of a lot with store and
with the cost, this appeal is prosecuted by dwelling house thereon for the year 1919 in
the plaintiff with a bill of exceptions.

the N. W. 14 of S. W. 14 of section 15, town.
[1] The original complaint contained two ship 16, range 5. Count 5 is the same as
counts. Count 1 was for rent for a lot with count 4, except it claims $2,000 for use and
a storehouse and residence thereon for each occupation of said property from December
month in the year of 1919. It did not follow 4, 1914, to December 4, 1919. Count 6 is
form No. 30, p. 1200, of the Code of 1907, the same as count 4, except it describes the
and failed to aver the property was demised lot as being in the N. W. 44 of S. E. 44 of
by plaintiff to the defendant. It averred no section 15, township 16, range 5; and count
rental contract for the property between 7 is the same as count 5, except it describes
plaintiff and defendant. It failed to aver ) the lot as being in said N. W. 44 of S. E.

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