This bill was filed under section 3513 of the Code of 1907, *Page 145 the opening part of which provides as follows:
"Whenever any corporation operating or maintaining any public utility and having enjoyed franchises under contract with any city, town, or other municipal subdivision to render any public or quasi public service to such city, or other subdivision, or the inhabitants thereof shall fail, after reasonable notice of default in the performance of such contract, to comply with and perform the same in the manner provided in such contract, the governing body of such city, town, or other subdivision, may by bill or petition apply to the chancery court or other court of like jurisdiction of the county in which such city, town, or other subdivision is situated, to enforce the forfeiture of the rights and franchises and annul the charter of the corporation."
The bill in this case shows that the respondent was such corporation enjoying the franchises of the town of Eutaw, that it was rendering public or quasi public service to such town, and shows a continuous failure to comply with its contract with said town after reasonable notice of such default of the performance of such contract was given by the municipal authorities. The bill therefore embraces all matters essential to the right to file the bill in accordance with the very language of the statute.
The majority opinion holds the bill is without equity, because it fails to aver that the corporation has failed, or refused, to perform its contract, either willfully or by reason of the lack of means to do so, and this holding is rested upon that portion of the statute which reads as follows:
"If upon the hearing of the cause the court shall find that the corporation has so failed or refused to perform its said contract, either willfully or by reason of lack of means to do so, it shall enter a decree ordering such corporation within a time to be named in said decree, to comply with its contract in the respect where it is in default, which time, for good cause shown, the court may extend."
This is clearly defensive matter, which the corporation may bring forward by its answer, but certainly not such matter as would be required to be alleged in the bill. If it is required to be alleged in the bill, then it must be that the complainant is expected to prove it. It would be unreasonable that the municipal authorities should be required to prove willfulness on the part of the corporation in the failure to perform the contract, or to prove that it was on account of lack of means. Each of these matters is a question within the peculiar knowledge of respondent, and therefore the statute, in my opinion, has been so worded as to clearly indicate they are defensive matters to be brought forward by the corporation. The bill, in my opinion, shows careful preparation, and was drawn in the light of the statute and in strict compliance with the language thereof.
The majority opinion concedes that the proceeding is in the nature of a quo warranto, and, clearly, if such is the case, these averments are purely defensive. State ex rel. v. Foster,130 Ala. 154, 30 So. 477; Montgomery v. State, 107 Ala. 372,18 So. 157; Jackson v. State, 143 Ala. 145, 42 So. 61.
Entertaining the view, therefore, that the bill is entirely sufficient, and that the decree should be affirmed, I respectfully dissent.