The Montgomery Advertiser from Montgomery, Alabama • 7

HE DAILY ADVEKTISEI5 SATURDAY, DECEMBER- 22, 1894 of said city, are greatly Impaired and most-seriously endangered to the ereat I Bl III Better Cheaper. THE ROYAL BAKING POWDER is more economical than other brands because of its greater leavening strength, as shown by both the U. S. and Canadian Government Reports. The othet baking powders contain from 20 to 80 per cent, less leavening gas than the ROYAL.

So the ROYAL, even should it cost more than the others, would be much the cheaper, r. In addition to this the superior flavor, sweetness, wholesome ness and delicacy of the food raised by ROYAL BAKING POWDER would make any difference in cost insignificant 1 Highest of all in leavening strength. Latest U. S. Government Food Report.

lng to the tax records of the county he had only three hundred and twenty dollars of taxable He may hive been perfectly solvent notwithstanding he had only: that amount of taxable property in the county of Montgomery, The respondent filed several pleas to tho information and writ of quo warranto. Demurrers were Interposed to each of these pleas, and sustained by the court; and the respondent declining to further plead judgment was entered dissolving the corporation. We are now to consider the sufficiency of said several pleas, and, before proceeding to that, It is to be recalled that the in-faimation avers a charter duty upon tho respondent, to supply the city of Montgomery and the residents! -or Inhabitants thereof with pure and wholesome water sufficient In quantity at all times for domestic and other uses, and that said corporation had failed and persistently fails and refuses to. perform, this duty, which was the chief Object and end of its creation and existence, and to supply said city and its people at all times with pure and wholesome water sufficient for their uses The.several pleas of the respondent admit that It was the duty of the Capital City Water Company under its charter "to supply the City of Montgomery and Its Inhabitants with clear, wholesome and deep well water for all domestic and ordinary manufacturing purposes and sufficient In quantity for all pees of said city and Its inhabitants," and they severally set forth as an exhibit the declaration and certificate of Incorporation of Said comi pnny, constituting and being the act or charter creating said corporation, wherein the objects, powers and duties of said corporation, so far as the are involved in this case, ore declared, granted and imposed In the following language: "The object for which this corporation Is formed la to supply water to said city of Montgomery, and to build, construct, lay, set, use and operate (pumps, reservoirs, mains, pipes, hydrants, wells and tlie new esary fixtures in and near said City of Montgomery; and to supply to said city and its inhabitants clear wholesome and deep well water, suitable for and Incalculable damage of said city and lis Inhabitants, and they are wholly without any due and adequate remedy at law in the premises." The prayer of the petition Is for a writ of quo warranto, or Borne other appropri ate- directed to said Canital City -Water Company, commanding it to ap ana snow under what warrant of law it exercises the cor- orate franchises as aforesaid and aot-ig as a corporation, and also show cause, if any it -can. why its said char ter, if It hath any such, should not be forfeited and annulled, and its corporate existence, if any such it Ahonld not be upon presentation of this petition to the Judge of the City Court.

order was made toy him: "To the Clerk of the- Cltv -Court of-Montgomery: Let an alternative writ Issue according to the prayer of the petition, returnable on the 10th day of May, 1892;" and thereupon the petition and order were filed with the cleric -of the City Court, and on the same day a writ was Issued In accordance with the prayer of the petition, addressed to the Water Company, reciting the allegations of the Information and commanding said company to appear and show "un de what warrant of law you exercise the corporate functions and franchises herein above set out, and also to show cause. If any you have, why your charter should not be vacated and your corporate existence annulled." The respondent company appeared and Interposed a demurrer to the complaint, or, petition, and also a motion to quash the writ. All the assignments of demurrer which are Insisted on) in argument are also set down as grounds of the motion to quash and are available to the appellant, If et all, as well upon that motion as on demurrer to the petition. We therefore need only review the-action of trial court in overruling said motion: The first ground of the motloni proceeds on the theory that this proceeding, should have been commenced by summons and complaint under Sections 2651 and 2652 of the Code, which pro vide (Section 2651) that all civil ac- tlons In courts of record, except as oth-' erwise provicrea in ma v-uun, commenced by the service of summons and (Section 2652) that the summons must be issued by the clerk of the court and accompanied! by the complaint), Signed, setting forth the cause of action. This position Is, in our opinion, untenable.

The statutory provisions in question have reference solely to the ordinary civil actions for the recovery of property oCmoney, as is clearly demon- strated by a reference to the original statute, as found la the Code of 1852, I 1 (Sectlon 2160), and as carried Into Qut an(1 perform said contract in Revised Code (Section 2558), and into the Cnde of 1876 (Section 2924). which pro vides: "All civil actions in the courts of record of this State for the recovery of real estate, or any Interest therein, or for waste or trespass on land, or for alj tne rjghts, franchises and privileges the recovery of tnoney or personal prop- at any time owned, possessed; or en-ertv, or for the recovery of damages, by Arthur H. Howland, his (except In such cases as Js otherwise nsS0ciates. successors or assigns under provided by the Code), must be and by saia The commenced by the service of a sum-; contract referred to in the declaration moras." The omission from the statute Qj incorporation 19 also madS an ex-ln the codification of 1886 of the speci-! to anu get out in the pleas, and ncation of the civil actions covered by it ls ciaimea that certain provisions it manifstedly was not Intended to either tnereof taken In connection- with cer-enlarge or narrow Its operation, but ta-n action or omission to act on the only to express the same proposition part of the City Council under such more concisely; and there is nothing in provisions qualify to the otherwise ab-its present context requiring or justi- B0iute duty of the corporation to fur-fying an extension of its provisions to njsn at all times of the pre-any case not originally within its terms SCribed quality and quantity to the or to any action except those for the re city an(j its inhabitants and Justify covery of property or money. The sole whatever of faKure may have occurred purpose the statute at first, all along tnat behalf, and It Is also claimed andsow was, has been and is to substi- tbat certain of said provisions in and tute a summons and complaint for the Qf themselves afford an adequate and.

common law writ and declaration, and the only remedy for an abuse not to require proceedings which at 0f its franchise by the. common tew were prosecuted by infor-i upon the information and the writ mation or petion and the like, such as therefore, as also upon the confessions mandamus, prohibition, certiorari, su- of rhe pieaB and the provisions of re-rHmicaa. habeas corpus. to be-, gnondent's charter exhibited by the THE CAPITAL CITY. WATER COM.

PANY DISSOLVED. (The Supreme Court Affirms the Judgment of the City Court Was Quo Warranto Proceed Ins Application for Receiver Made Wednesday Set for- the AppolntmentTIie "Water Com-) panr People Very AeUve-FnlJ Opinion In the Cane, i yesterday forenoon the Supreme1 Court decided the case of the State' on, relation of Gordon MacDonald 'against' the Capital. City Water af-; firming the. decialon of the City Court! Of Montgomery, annuling the charter of. the said Water n.

-L, "i proceedings were in the nature of a quo warranto were instituted la the City Courr In. May. 1892, on a petition alleging that' the Capitol City Water Company had failed for about two years In Its chary iter and contract duty to furnish, the C'ty of Montgomery and Ua inhabitants: with pure, wholesome, deep well water for domestic and manufacturing purposes, and asking that'for such failure the charter of the Water Company be and annulled. The cause came up on demurrer and on motion to quash by the defendant company, and. after i hearing the arguments the court overruled both jfhe demurrer and motion; On the following day the case was tried and a verdict was rendered In of 'the defendant.

An appeal was taken to the Supreme Court and the cause was reversed. The cause came np again In the City Court before Judge Arrlngton. Pleas were filed by the Water Demurrers wereflled to each of these the City Court sustained, and, ithe respondent declining to plead further, judgimeut was rendered against it, dissolving the The- case was then appealed to the Supreme Court again with an affirmation yesterday by that tribunal. The following is the full opinion in the case: MeClellan, J. This Is a proceeding in the nature of quo warranto prosecuted by the State on the relation of McDonald against The Capital City Water Company, a corporation, under Sections 3167 et seq.

of the Code, for the dissolution of said corporation. It commenced iby petition or information addressed to the judge of, the City Court of Montgomery. The petition avers that said company is an organ ized 'body acting as a corporation and claiming to 'be chartered under the laws this State and to have the franchise for the business of furnishing water 'through its system of waterworks to the municipality and residents of Montgomery for domestic and other uses, and is now engaged in that business in which it operates steam pumps and uses the streets of the city for the purpose of running its pipes for the passage of its water to the consumers thereof, that it is the clear and imperative duty of said company under and by the expressed terms of the charter under which it is claiming and exercising the franchise to own- and operate said system of waterworks to urnish'to the city of Montgomery and the residents thereof, at all times, a sufficient supply of pure, wholesome water for. the use, domestic and otherwise, of said eify and the residents thereof, which duty Is the principal object and purpose of said company's corporate existence, and for the performance whereof it claims to be authorized to. and does, charge, certain rates to the city and its that "notwithstanding the clear -and obvious duty of said OaDital City 'Water Company, undertaking to exer cise ana exercising salaeorporate Iran.

chise as as to furnishing pure and wholesome water to said mu nicipality and the residents thereof, yet in open and' flagrant violation of said duties and willful misuse and abuse of "the corporate franchises exercised- fey said Capital City Water Company, said company for, to-wit. three years last persistently refused and failed perform said corporate duty of furnishing said municipality and the residents thereof for any -purpose whatsoever any supply of 'pure and whole--Bome water. and said company stilt iperelsta in refusing and failing to per form its said that Bald company has and does mill misuse and abuse as aforesaid the franchise operated by It as aforesaid: though frequently ad monished of such failure lit Us duty requested to obey and observe its corporate duties aforesaid." And the metition further avers and concludes as follows: 'That toy reason of the use and exercise of the franchise aforesaid by said Capital City Water Company and its contract with the city 01 atont-romerv as to furnishing good, pure and wholesome waiter to said city and Its Inhabitants, said municipality and Its inhabitants are now almost wholly' de- pendent on said company for hehr supply of-water for domestic-and other uses. That 'by reason of said Capital City Water Company's persistent- mis- Use ana a'DUSe OI 1U iranumses aim duties aforesaid In failing to- supply said municipality and 5 its Inhabitants -with a sufficient supply of pure and 'wholesome water as aforesaid the health and comfort of the Inhabitants Eczema Covered Head Forehead arid Cheek of Baby. Doctors Unavailing Tried Cuticura Remedies Change in Three Days Cure in Two Weeks Onr ton months' old baby had a very bad ease of eczema, and after having dontorea six or seven weeks, lnstoa of getting better, I wrtraA.

HIS forehead, cheek, and top head were literally eov orod with scab one eighth of an Inch thick, and as we could bear this sight no longer, were willing to try almost everything that we 1 1 V. UavinirivJUl I HSU IRUUWi a testimonial of Conocaa. IU Rkuedikx, we decided give tnein a nat. xxw uw-tor saw bim last on Hay Wa vnnr mmftaliefl on May anu -r S'SIZTZ "'had taken place on May 14 is wonder oftne nineteenth century. We began to use iCon-coba, completely spreading it where he was orend washing it with the Cutiouba Soap several times a day.

At the same time we gave him Cdtioura Rbsoi.ve.nt three times a day. After having attended him for two weeks, his face was as clear as any child's could be. MS is now as olean of them as he ever We can hardly find words to express our most heartfelt thanks. Mb. and Mrs.

JOHN C. RAU, -89 South Calhoun Baltimore, M6V CUtlCURA WORKS WONDERS Crnctnu, the sreat Skin Core, with Cutiouka 8oap, an eiqnisiU Bkin PnrlBer. and CuncoRA Riooltbkt, the new Blood Purifier and greatert ol Humor Remedioa, conrtitnte the most ipeedy tad ecoaomiaU treatment for ererj dueaae of the skin, seals, and Wood Bold throughout the world. Price, CirriouBA, PottkbIbo AMDCBaK.Coiup., iJole I'roprietoi JST "How to Cure Skin Diseases," tree. red and oily skin pre- I I nl vented ana curea oy v.u-u ni mil IB CTDIIMO BDIUCi i l.

I.M ana woaKnw. wm u-. nevi, rhraoiaustn, and enesi paina relieved in one minute by the Cuticura AaU-Faia flaator 4 Zi? I in A BIG RUN OX A BIO BANK YESTER- DAY. Bat the Proprietor Handed Out the Stuff to Meet the Deinnnd, and i Say They Have More onj the Road to Gllve When the Hank's rile la Exhausted. One of the greatest sensations that ever hook the city was caused yesterday by the breaking of a big bank.

Coming just at this time it would have been a great handicap to many people, but the hole in the bank by the run yesterday was promptly filled up by proprietors, and now the bank's assets are subject to the order of on account of the heavy and numerous orders for Westmoreland Coal.jMessrs. May and Offutt were compelled to break into their great bank of this fine product to satisfy the demand However, from that bank can be drawn a draft of about two hundred tons, more, and when that gives out, Messrs. May Offutt say they have more on the road which will 'be here before this gives out. If you want first-olass coal at living prices, try Westmoreland. The people are fast finding out that Westmoreland is the best 'and cheanest scnA that Offutt's is the place to buy it.

Telephone (No. 21. Try Cannell Coal. Prf. R.

Ogden Doremus of Be'llevue Medical College. New York CRy, reports: "I find Dr. Prlce's'Cream Baking Fowder composed of pure materials and -compounded on correct scientific principles. Its yield of carbonic acid gas Is greater than ithat of any other powder." THE MACON The Renlt Agrninxt Repeal ot the (i Liquor Prohibition Law. mife? Democfatio primary election, up in Macon County held last Wednesday to nominate a candidate to succeed the late Judge Holt in the House of Representatives resulted, as has 'already been announced, in the election of Mr.

J7 R. Wood over Mr. S. Q. Hala toy about sixty majority.

The question of the repeal of the present prohibition liquor law in that county figured to -a considerable extent in the -although the issue was not squarely made. Mr. Hale came out squaVely for repeal, while Mr. Wood, the feuecesstul candidate, was non-committal, promising to 'do what the majority of the people wanted in certain localities. It is said that a large ma-joritjf of the country beats were- in favor of the law remaining as at pres ent against repeal.

In, many of those places whisky is sold openly. It appears that in the town of Tuske-gee'the vote was very close, the majority for Mr. Hale toeing only seven. toutnot more than 70 per cent, ot the vote of that precinct was cast, A ma jority of the people of Tuskegee are in favor of Mr. wood is pledged to thatf course and the next effort now will be to get a full expression on tha question in that town.

There are a number of internal revenue! licenses taken out in the county andIthe names of those holding them would toe very interesting and an effort will toe made to iget them from the office of internal revenue collector. A toill has'ipassed' the Senate making the taking 'kiut of such revenue license prima facie1 evidence of the violation of the StatS law and it ought to become a law. as it will check to a considerable extent the sale of liquor in the prohibition counties of the State. C0ALWO0DCOKE Lowest Prices. Montgomery Coal Wood Phone 223.

Office, 3 Dexter Ave. Christmas Exercises at Mia Woodruff's School. Yesterday the closing exercises of the first 'term of Miss Woodruff's school took place at the school room at her residence, corner of Alabama anrF- South Lawrence Streets. The room was prettily decorated with evergreens. The pupils executed a varied and' interesting program of recitations, sonjrs and instrumental music.

A number Bof parents and friends were present "and greatly enjoyed the proficiency evinced by the pupils. See our trreat lihe of Slippers. Any style, any price. J.P.BULLOCK Shoe Headquarters. Holiday Excursion Rates on the Central Railroad.

The Central Railroad will sell round-trip tickets on December 22, 23, 24 and or. nn r-iofomhor 9ft tft And 31. 1894. and January 1, 1895, with final limit re turning to January issb, ai iwu tenia mila aui.li uriflv tipketn Rftld for jjvri a greater distance than three hundred miles. JU Xt, VAJN' J- -L-crvjn, 13t Com.

Agent The best Christmas present you can give your friend at a distance is a year's subscription "to The Semi-Weekly Advertiser. Only $1 a year. jU VTGOMERY COTTOS MILLS. Nevy Machinery En RoteThe Jfum. y.

of Spindle Will Inoreu- d. iSixoar loads of new -machinery are now( en route to this city. for. the Montgomery cotton mills. Some 'two years agq.the old Adams Cotton, tMiUa Cow ROYAL BAKINQ POWDER 106 WALL NEW-YORK.

pany was reorganized into the present institution with Mr. J. C.O'Connell, President and Mr. W. B.

Tanner, Sec-i-elury and the success has crowned the efforts of their excellent managegmeni. Within the next few days, machinists will begin to take out the 2,800 old spindles and replace them with the latest Improved and perfected spindles. The mills will mot stop running and gradually 6,000 spindles a capacity double the present will be put in. A force 135 operatives are now em ployed In the Montgomery cotton mills and this number will be increased. The people are paid good wages, and it Is an exceptionally thrifty class, in every respect ranking above the ordinary type of cat-ton factory hands.

Air. Connell stated to a reporter that an electric light plant would probably be put In at an early date, so that the spindles may be operated at nighi if necessary. All this is good news. It is evident to everyone that the building up of industries in Montgomery is essential to the city's progress and prosperity, and of all enterprises, the cotton mill Is bept adapted to this section. Said Mr.

O'Connell: "The day is not far distant when mills with hndreds of thousands of spindles will be established here." Prof. Albert E. Memke, of the Kentucky State Agricultural College, writes: "I have found on examination Dr. Price's Baking Powder to be the strong est and most wholesome in public use. A GREAT ASSORTMENT Of Holiday Presents at White, Woodruff Ftt-wler's.

There Is no more attractive place in the city just now thaji White. Woodruff Fowler's 'bookstore. Everybody wants Christmas presents, and It is safe to say that no grea'ter assortment can toe found than there. Of course art works and standard editions of classi cal works at all prices are there, but in there is a large stock of toys, Christmas cards, Japanese ware, torie-a-torac, etc. Any taste can be pleased; every pocketbook sui'ted.

If you have overlooked White's, as it is familiarly called, in your shopping founds, you have made a wliich you should correct today. THE MONTGOMERY ART WORK Is Now Ready and 1 Complete Gem. The art work of Montgomery which Messrs. Harney and Jones of the Ken-nicott Company have been getting up for some months past is now complete. The agents were at work yesterday delivering it.

The entire twelve parts are ready, and they constitute the most admirable exhibit of Montgomery's attractions ever The work is done in the most attractive style of photogravure, and is of the highest artistio merit. Everything of beauty or special interest about the city is included. The work: shouldTbe in the hands of every lover of his city. Send your orders to Howe for Christmas Turkey, naininir the size you want. Xmas Eve Delivery.

IS! IS! MONTGOMERY ARMS CO. IS HEADQUARTERS THIS YEAR. Everybody will buy toys nt the Montgomery Arms Company this Christmas. Do you ask why? Well, because they sell toys cheaper than any other place in Montgomery and give the public a finer line of goods from which to seleot. If you are going to buy toys, air-guns, cutlery, fireworks, footballs or, firearms, you should go to the Montgomery Arms Company, for they can save you money, 5t.

The best Christmas present you can give your friend at a distance is a year's subscription to The Semi-Weekly Advertiser. Only Jl a year. Looking Southward. Bradford, Dec. 20.

Southern Pines. N. is attracting the attention of West Pennsylvania and Western New York fruit men. A syndicate headed by B. H.

Butler, editor of The Bradford Era, and J. N. Perrin, business manager of the Oil City Derrick, has purchased a tract of 15,100 acres of land at Southern Pines, and will go into the fruit industry on a large scale. COAL, COKE, WOOD AND DRAYS. The best Coal and Wood for the least moneyTry us and be convinced.

4 Capital City Coal Co. H. MOORE, G.M. Shavings are coming into demand for bed and mattress filling, and the Wisconsin planing mills have struck a bonanza in packing them like hay and sending them all over the country. Lowest Prices.

Montgomery Coal Wood Co. 'Phone 223. Office, 3 Dexter Ave. he largest flower In the world grows In Sumatra. It la called the Rafilesia Arnoldl, and some of the specimens are 39 inches in diameter.

The central cup will, hold six quarts of water. Howe Co. ean supply the city with Pure Farm Link Sausasjre and Saussure Meat, Dressed Poultry, Gape Cod- Cranberries, Celery and fresh Country Ejrfrs. Orders left with them will be delivered Monday. The best Christmas present you can give your friend at a distance is a year's subscription to The Semi-Weekly Advertiser.

Only a year. tis THE ELEVENTH! CIRCUIT. 1 Hon. Thomas R. Itoujhac, For tnnute Applicant.

The appointment of a Judge of the new Eleventh Circuit, composed of the counties of Colbert, Franklin aud L.u derdale, has given Governor uates no little concern. There were six applicants and all had strong and influential backine. but the preponderance ot sup port was in favor of Hon. Thomas R. Koulhuu of.

Sheffield, and his appoiut-ment was announced) by. the Governor lust night. Mr. Roulhao is a native of North Car olina, but for a long time resided at Ureensboro, wnere tie engugea in me practice of law. He removed to Shef field only a few years ago, but at once took first ranlc at the par oi uoiperc Countv.

and tols election to the bench a just recognition of capacity and merit. His family in North Carolina were among the first people of that State, and two of his grand iatners were judges on the Supreme bench of that State, making a reputation second to none. One of these was Thomas Ratlin, for whom he was named. The appointment of Mr.JRoulhac will give entire satisfaction to the bar audi the people of the new circuit. when Dr.

Price's Baking Powder is used. It works to perfection. I The Famous Whitney Opera Co. "The Fencing Master," by De Koven Smith, ti brightest, best and most successful of latter-day couiio operas, will be presented at the Montgomery Theater oa Monday evening, next, Dec. 24, by the famous Whitney Opera Company of fifty odd artists.

This organization is the largest, best equipped and most perfectly appointed of all companies presenting comic operas on the road this season. Everything appertaining to the performance is carried intact. The scenery is complete, the costumes are new and superlatively handsome, while the smallest property and stage-effect is reproduced precisely as in "The Fencing Master's" metropolitan engagement. Reserved seats on saie this morning. The HUYLER'S CANDY ordered for Christmas has arrived.

E. G. FOWLER, Druggist. IN THE Supreme Court Adjourns Until January 7th Other Matters. The Supreme Court was in session yesterday and handed down several decisions, one of which is of very great interest to Montgomery, for the reason that it affirms the decision of the City Court of Montgomery, annulling the charter of the Capital City Water Com-.

pany. The opinion in uill will be foundl in another part of the paper- this morning. An adjournment was taken until January 7th, when cases fromi the Seventh Division will be called' up. On that day the resolutions over the late Col. JaB.

N. Arrdngtom will be presented to the court for adoption. The resolutions were adopted by the Montgomery Bar some time ago. The case of John Greenough, Calvin S. Brice, and others, against the Alabama Great Southern Railroad, appealed from the Jefferson County Court, has been postponed from January 4th to the 17th The following decisions were rendered by the Supreme Court Friday: McClellan, J.

Capital City Water Company vs. State of Alabama, ex from Montgomery City Court; affirmed. William J. Ward vs. Preston Clark, et from Tuscaloosa Circuit Court; affirmed.

Wm. J. Gill vs. J. S.

Dally, from Franklin Circuit Court; affirmed. Coleman, J. W. W. Wilkinson Mces Weil et al, from Butler Chancery Court; affirmed.

Haralson, J. Bethel- Cole vs. State of Alabama, from Walker Circuit Court: reversed and remanded. The court then adjourned until Monday, January 7th, 1895, when cases fi-em the seventh division will be called. The several revenue cases set down for hearing in the City 'Court yesterday came up.

Orily one was disposed of. the defendant pleading guilty and paying the costs in the case. The other cases went over until December 31st. Before Commissioner Watts yesterday, R. C.

Bryce of Henry County, was arraigned on a charge ot wholesaling liquor without lieanse. He was bound over in the sum of $200 to await the action of the Federal grand jury. Judge Arrlngton heard an application for a writ of habeas corpus yesterday afternoon in behalf -of Jim Green, colored, confined in jail on a charge of vagrancy, tout the writ was denied. pair of ourchil-drens and boys' shoes and see what leather and shoe-making can stand. J.

P. BULLOCK BR0. f. -i; The Report FIntsUefl. Kingston, N.

Dec. 20. Commissioner Linson 'has finished his report on the testimony in the District Attorney Fellows matter and will take It to -Albany to Governor Flower himself. He refuses to tell its purport. Mr.

Lin- son goes person, so that the Governor: can Interview him in the matter, if he desires. C0ALW00DC0KE Lowest Prices. Montgomery Coal Wood 'Phone 223. Office, Dexter Are. I D05es ana sufficient In quantity for all all domestic and manutnetunng pur- uses of saia ctty ana its innuDiianra, a9 tet fortn an(j proVided In a certain contract ordained by the uo-nc-raMe City Council of said city to.wit tne 7th day of October, 1886.

granting to Arthur H. Howl.inil his a8SCCiateSi successors and assigns the rgnt t0 ay down, use, and maintain wnre, mains, pipes and aqueducts and fixtures pertaining to supplying a ater supply to and In the City of Mont Mnntiromerv. and to ear- all respects and particulars aecord.ng to the true meaning and intent thereof on the part of said Arthur H. How- his associates, successors un assigns, and to use. exercise and enjoy pleaa the case presented Involves a chanter duty resting on the Cap.tal city Water Company to supply water of the prescribed quality and adequate quantity to the city ana its lnnamiants at all times; and upon the information and writ the case presented- Involves a willful failure on 'the iart -8f said' company to discharge and perform this duty.

The duty Is obviously a public one and of vast importance to the municipality and people of Montgomery. It is of no less consequence in respect of the quality of the to be sup-Dlled than in respect of its quantity and the constancy of the supply. The "act creatine the cor poration" is equally imperative in respect of the quality and the quantity and the continuity of the supply of water for the furnishing of wh'ch to the the city and the residents thereof the corporation wa3 organized, chartered and invested with the valuable franchise of constructing and operating a system of water works in the city of Montgomery. Nay; more, it is readily conceivable that to supply the city and its inhabitants with impure, unwholesome and polluted water would be more disastrous than to supply an insufficient quantity of pure water or even none at all. And so in respect of the constancy of the supply: The charter requires the' prescribed water to be furnished at all times without exception.

And to fall in this duty for any material length of time is as much a breach of corporate duty, as much an offense aga'nst the charter and abuse of the franchise granted as total failure In that regard though not sq mischievous in results. Hence, we feel no hesitation in affirming that a failure to constantly furnish water of the pre! scribed quality is an offense against the act creating this corporation w.thln the terms of Section 8167, 1 of the Code, unless Justification or excuse for such failure on the particular facts under which it occurred -can be found, in the charter of the corporation. Re currlng to the pleas of "the it is to be considered whether they sev- erally Jeither negative the charge failure made by the petition and re-f cited In the writ, or, without such negation, present facts which excuse or justify such- failure In such sort as to strip it of the essentials of an ofi fense against the charter of the re- spondent company, or failing this, whether they present ia, case which ad- dresses flsetf to. scretion of the court and requires an exercise of that discretion in the respondent's favor. Respondent's first plea does not negative the failure of corporate duty laid in the Construing it, as all pleas must be construed, most strongly against the pleader, it, in the first place, only claims that the Water Company discharged the duty in question for the first five years after Its organization and incorporation, and the completion of its.

works, that is down to the year 1890, and his is to be taken as a confession that it has not performed that duty during the two years elapsing from, 1890 to 1892 when this proceeding was And the plea, proceeds upon the assumption of failure to supply pure and wholesome water continuously during said named period to state facts which are intended to afford Justification or excuse' for such failure, thus emphasizing the admission of its failure. After 'this it proceeds to aver that -the-ctty anP its inhabitants are entirely dependent upon the respondent for a supply of water for- fire end sanitary purposes and that should the company's charter te taken away from the city will toe left without any supply of water for either of said purposes awl further "that many of the inhabitants of said cRy are now depending solely upon '-the defendant for their waiter: supply, and they are now and. have been at, all times since the construction of defendant's works furnished with an--utdant supply of pure, wholesome end deep well watef and sufficient in xiuality and quantity to all the wants of the ctty and its In habitants, and defendant avers that if its -charter was forfeited it would have po right to supply, either the City of Montgomery or Inhabitants vwitto (jC-onciaded ixth Pagr.) commenced by the service of summons and complaint. This view is strength-1 ened by reference to the provisions of. ha rnAa in rpsnect of the form of the summons required to be issued and served in "all civil actions," as well by the present as all former and by the forms ot complaint found in all the Codes.

None of these forms are adapted to other actions than those for the recovery of property or money or dam ages; and it has never been supposed that any of the extraordinary proceedings noted above) should or could be pnmmenfied bv a summons accompanied either by a common low declaration or,) by a complaint any wm uiruusuuu to those given. Moreover, quo warranto was aot even a civil proceeding at the common law, but criminal in Its nature, involving severe pains and penalties; and. now that it has been shorn of these consequences It still cannot be said to be "civil action" withim statutes like Section 2561 of the Code which Is defined: "An action which has for its object the recovery of private or civil rights, or compensation for their lnfractiot." Bouvier's Law Diet. 3 Amer. Eng.

Ency. of Law, p. 257. And, beyond all this, It may well be said to be the settled practice in this State to commence- proceedings under Sections 3167 et seq. of the Code by information or petition in the nature of an Information setting forth the facts and praying a writ of quo warranto, as in the case at bar.

Tuscaloosa Scientific and Art Association vs. State fex rel. Murphy, 58 Ala. 64; The State ex rel. Sftoehe vs.

Webb et al. 97 Ala. Ill; and this practice Is expressly approved, with reference to similar statutory pro- 1 visions, by the Supreme Court of New Jersey, Attorney-uenerat vs. me jjeia. ware and Bound Brook Railway Company, 38 N.

J. L. 282, where it is also decided that this proceeding is not "an action" within statutes like Section 2651 of our Code. State vs. Roe, 2 216.

It was not necessary for the relator to obtain leave or art order of any court to institute and "prosecute this proceeding before- filing the Information or at all, as is insisted by the second ground of the motion to quash. Tuscaloosa Scientlno end Art Association 'vs. State ex rel. Murphy, 58 Alabama; 64; State ex rel. Sanche vs.

Webb et al 97 Alabama 111. The remaining grounds of the motitm to quash are obviously ill taken and as they are not Insisted tap by appellant's counsel wa shall not discuss The motion to quash the writ was properly overruled. The respondent also moved to dismiss the proceeding for that the relator did not give security for costs before: filing the information. It is quite true that in such cases security for the costs must be given- before the instituted and cannot afterwards be supplied If seasonable objection be; made. Taylor vs.

State ex reL Hand, 31 Alabama 383. But it is equally well settled that where -the security is ia fact given after the suit has been com-ipcnced the respondent may waive the irregularity, and that he does waive it bv proceeding with the eause and omitting to move with reasonable promptness for a dismdssal oh account of This proceeding wa9 begun on April 27, The security" for costs was approved and accepted by the Cleric of the Court on May 2, 1892. The respondent filed his demurrers end motion to- quash on May 10, 1S92, and af-, tervards Its pleas to which the petitioner and when the case came on for hearing in February, 1894, this motion to dismiss on the ground that security for costs was not given before Hie commencement of the proceeding was for the first tame Interposed. 5 Under these crronmstances the, court properly overruled it -puncan vsj Richardson, 84 Alabama 568; Heflln vs.j Napier, 33 Alabama 668 Heflln vsj Rock Mills M. end C.

68 013. v' We cannot affirm that the trial courti should have granted respondents. iMM tion "to require the relator tc give other or additional security -for costs of this suit, for the reason that-the security given by the relator, to-wit, T. Gardner Foster, 4s insolvent" because the evidence adduced in support of the motion only went to show that accord-..