City of Leeds v. Avram

• Decision Date: 10 June 1943
• Docket Number: 6 Div. 151.
• Citation: 244 Ala. 427,14 So.2d 728
• Parties: CITY OF LEEDS v. AVRAM.
• Court: Alabama Supreme Court

14 So.2d 728

244 Ala. 427

CITY OF LEEDS v. AVRAM.

6 Div. 151.

Supreme Court of Alabama

June 10, 1943

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

The bill prays specifically that complainant and others similarly situated be declared not subject to suit for collection of charges nor subject to prosecution for nonpayment; and that section 21 and 22 of ordinance SS2 as amended be declared unconstitutional and void.

The sections added to ordinance SS2 by amendment are as follows:

"Section Twenty-One: Upon failure of any owner or owners of such premises to pay sewer service charges herein provided for when due, and after same shall have been delinquent for a period of thirty (30) days, then in that event the City Clerk shall notify the Sanitary officer of the City of Leeds who shall thereupon notify the owner or owners of such premises in writing of such failure to pay and that unless such delinquent charges are paid within a period of five days from the date of (Sic) such premises will be disconnected from the sanitary sewer system of said City of Leeds by such Sanitary Officer. Upon the failure of such owner or owners to pay the delinquent charges within the time specified in said notice the said Sanitary Officer of the City of Leeds shall immediately proceed to disconnect such premises from the sanitary sewer system of said City and to keep such premises so disconnected until such owner or owners have paid such delinquent sewer service charge in full plus any and all amounts or charges necessary or due under the laws and ordinance of the City of Leeds for the purpose of reconnecting to such sanitary sewer system.

"Section Twenty-Two: Any owner or owners of such premises who shall use or allow to be used any kitchen sink, lavatory, commode bathtub, or other such fixtures with or draining into the sanitary sewerage system of the City of Leeds, without first paying said sewer service charge according to the rates hereinabove set out, shall be guilty of a misdemeanor and upon conviction shall be fined the sum of five ($5.00) dollars and upon failure to pay such fine, shall be sentenced to hard labor for the City of Leeds for a period of five (5) days. Each day such fixtures are used as above prohibited shall constitute a separate offense and shall be punishable as such."

The final decree declared that ordinance SS2 as adopted and as amended is valid; that prior to the amendment no liability was imposed by the ordinance upon the owner where property and facilities were used by a tenant and not the owner; that subsequent to the amendment the owner is made liable for charges, even though he does not occupy the property or use the facilities if he allows the property and fixtures to be and remain connected with the sewer system; that obligation of complainant to pay such charges accruing after amendatory ordinance may be enforced by assumpsit when delinquent and the city may proceed to disconnect premises from system under Section 21 of the ordinance and proceed to prosecute such owner under Section 22.

Sadler & Sadler, of Birmingham, for appellant.

Rosenthal & Rosenthal, of Birmingham, for appellee.

FOSTER Justice.

The question in this case is whether the owner of property occupied by a tenant is liable for the charges fixed by a city ordinance for the use of a sanitary sewerage system to which the property owner has made the necessary physical connections as also required by an accompanying ordinance.

The question is different as applied to the status existing before and after an amendment of the ordinance prescribing the rate of charges.

The ordinance in question SS2 was adopted August 27, 1936, as alleged in the bill filed by a property owner seeking a declaratory judgment (section 312, Title 37, Code of 1940). Another ordinance SS3 was adopted on the same day, requiring property owners to make physical connection with the system. The ordinance SS2, supra, was amended on February 2, 1942.

The trial court declares in a decree of the court that ordinance SS2, supra, prior to its amendment, did not impose the service charges against the landlord property owner for the use of the connection by the tenant; but did so after the amendment of that ordinance.

The city appeals and contends that the property owner was liable for such service charge before as well as after the ordinance was amended.

The property owner cross-assigns errors and contends that the court erred in holding that she was liable for such service charge after the amendment. These contentions are made to depend upon a construction of ordinance SS2, before and also after the amendment, supra.

Section 9, before the amendment, insofar as here material, is as follows:...