Allman v. City of Mobile

• Decision Date: 10 June 1909
• Citation: 162 Ala. 226,50 So. 238
• Parties: ALLMAN v. CITY OF MOBILE.
• Court: Alabama Supreme Court

50 So. 238

162 Ala. 226

ALLMAN v. CITY OF MOBILE.

Supreme Court of Alabama

June 10, 1909

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Action by the City of Mobile against Eliza J. Allman. From a judgment for plaintiff, defendant appeals. Affirmed.

Brooks & Stoutz, for appellant.

B. B Boone, for appellee.

DENSON J.

This appeal is from a final judgment, rendered by the city court of Mobile against the appellant, Mrs. Allman, for the violation of an ordinance of the city of Mobile, in that she failed to connect her property with the sanitary sewers of that city after notice so to do. The case was tried in the city court on an agreed statement of facts, and it is not contended that appellant was wrongfully convicted if the ordinance under which she was tried is a valid one.

The ordinance involved is No. 830 as amended, and is in this language: "It shall be the duty of the plumbing inspector, or of an authorized inspector acting under the plumbing inspector, to order, in writing, all persons associations, and corporations owning property any part of which abuts a street in which a sewer is laid, to connect all closets, urinals, sinks, lavatories, laundry tubs, bath tubs and fixtures of whatsoever kind and character from which water is wasted with said sewer in said street, and any person, association, or corporation failing or refusing to make said sewer connection for a period of thirty days after such notice shall be guilty of a breach of this section, and on conviction shall be punished as hereinafter provided. Said notice may be served upon a person or left at their residence or place of business." This ordinance was approved June 17, 1907. The facts show that the defendant's property is used by her as a residence, and that at the time notice was served upon her to connect with the sewer there was in use on the premises an open pit privy vault.

In view of this condition of the property, it is insisted that Ordinance No. 830 is void, because another ordinance (No. 829) forbids the connection of such a privy vault with the city sewers. We do not think there is merit in this contention, or that there is conflict between the two ordinances, even should it be conceded that Ordinance No. 830 is not a later expression of the legislative intention than Ordinance No. 829. It may be that Ordinance No. 829 forbids an owner of property to voluntarily, or without first obtaining permission from the proper city authority, connect with the sewer such a vault as that mentioned in the ordinance. But common knowledge concedes it to be the part of wisdom to have good sanitary regulation in cities; and, as an incident of this, experience has evolved the system of placing under the supervision of an expert inspector all such matters as that in controversy, and providing that no sanitary connection shall be made, except when it is necessary to conserve the hygienic conditions of the city. In this view, each of the two ordinances has a field for operation without conflicting with the other.

In this connection we may as well dispose of the second and third insistences, by saying that Ordinance No. 824 is applicable only in cases where parties voluntarily request permission to connect their premises with the sewerage system of the city. Manifestly, no permit to make such connection is necessary, or was even contemplated under Ordinance 830 as amended.

The fourth insistence is that Ordinance No. 830 as amended is an improper delegation of legislative power to an administrative officer. It is argued that "the ordinance is not a general undiscriminating ordinance, but is directed only against those whom the sanitary inspector chooses to prosecute. The ordinance does not fix a duty on the property holder for failure in which anybody can prosecute. To be uniform, the ordinance should declare the duty and make noncompliance punishable, whether the sanitary inspector wills it or not. Only those whom he notifies are under duty to help make the city sanitary." This insistence cannot prevail, for the reason that the ordinance leaves nothing to the discretion of the inspector, but imposes upon him the imperative duty of ordering all persons of the class mentioned in the ordinance (1 Dillon [4th Ed.] § 394), namely, those owning property any part of which abuts a street in which a sewer is laid, to connect all closets, etc., with the sewer; and then the ordinance makes the refusal or failure, after such order is given in writing, to comply with it within 30 days, a violation of the regulation. Nor does the ordinance leave it to the discretion of the inspector whether or not parties violating same shall be prosecuted, or even make it his duty to prosecute them. The ordinance provides a uniform rule of action. It contains permanent legal provisions. It operates generally and impartially, and its enforcement is not left to the will or unregulated discretion of the inspector, or even of other municipal authorities. It properly requires the order or notice to be given, and then, voicing the will of the legislative department of the city, provides that a failure or refusal to comply therewith within 30 days shall constitute a breach of its provisions. We do not think that it confers any legislative power upon the inspector, or even gives him discretion. Town of Tipton v. Norman, 72 Mo. 380; Village v. Lake Erie, etc., Co., 60 Ohio St. 136, 53 N.E. 795.

It is next contended that the city has no power to compel connection with sewers; the first point of the contention being that the act of the Legislature approved March 12, 1907 (Laws 1907, p. 398), by which it is supposed that the power to compel such connections exists, was enacted in violation of that section of the Constitution (Const. 1901, § 45) which provides that "each law shall contain but one subject which shall be clearly expressed in its title." The title to the act is in this language: "An act to authorize cities and towns in the state of Alabama to provide for the drainage thereof by sanitary and storm water sewers,...