(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 be other ground of reversal; for, as the case has been *471decided, 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 malee 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 better for convenience in administering the law in such cases that there should be; the defendant is a private corporation doing business primarily, it is safe to assume, for the benefit of its stockholders. A municipal corporation in many respects stands on the same footing as a private corporation engaged in the same line of business. It occurs to me, however, that there is this difference which may be worthy of consideration : That the public are quasi stockholders in any municipal business of a private character, and its members as such are entitled, as matter of law and right, to uniformity of treatment. Being a private corporation, defendant solicited plaintiff to enter into a contract with it. She did so. Defendant now contends, or the opinion so holds, that, the contract being void as against a general public policy requiring uniformity, plaintiff acquired under it no rights which defendant is bound to respect. I do not say she was entitled to the contract in the beginning, though, for aught appearing, she may have been. That she could not have *472required defendant to enter into the contract, assuming that she was tendered a contract unduly unfavorable to her, is all that a number of the cases cited in the prevailing opinion go to prove. I do say that neither the legal nor the moral aspects of the defendant’s position with reference to the contract in question carries any appeal to my mind.
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 on Carriers (3d Ed.) § 521.
This was the effect of the language used in State ex rel. Ferguson v. Birmingham Wateworks Co., 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep. 69, 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, 34 N. E. 549, 21 L. R. A. 519, 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 not require absolute uniformity of rates, nor forbid discrimination by performing the service for one at rates lower than those exacted of others. The most familiar illustration of pursuits of this character is that of a common carrier, and the well-recognized rule is, that while the carrier cannot *473select Ms patrons arbitrarily, and must furnish equal facilities to all and on equal terms, he is not forbidden to take one customer’s goods at an unreasonably low rate, or to confer on that customer other practical advantages in the transportation to which competitors and the general public are not admitted. — Schouler on Bailments and Carriers, 380; Hutchinson on Carriers, § 447. The same rule, doubtless, where no statutory restriction has intervened, is equally applicable to all other kinds of business which have become affected with a public interest, such as that ordinarily carried on by telegraph or gas companies, the construction and maintenance of public wharves, or the maintenance and operation of waterworks in cities.”
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, American and English, are cited.
“This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision.” — License Tax Gases. 5 Wall. 462, 469 [18 L. Ed. 497]. “When the will of the people has become crystallized into legislative enactment, and a given subject has been surrounded by regulation, 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, 85 N. W. 122, 123 (53 L. E. A. 650, 83 Am. St. Rep. 854). 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 poAver to refuse to enforce a contract as *474against public policy is one of limits not clearly defined and the courts prefer, in cases not settled by recognized precedence, to use such power only in clear cases. Tbe defense of public policy is so often interposed as a last resort that tbe courts, have become 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.