Davis v. Weir

Decision Date17 June 1971
Docket NumberCiv. A. No. 14494.
Citation328 F. Supp. 317
PartiesWillie DAVIS, Individually and on behalf of all others similarly situated, Plaintiff, v. Paul WEIR, General Manager, Atlanta Department of Water Works, et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

Jay E. Loeb, Michael H. Terry and Alden C. Harrington, Atlanta, Ga., for plaintiff.

Henry L. Bowden & Martin McFarland, Atlanta, Ga., for all defendants.


MOYE, District Judge.

This suit is brought as a class action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 seeking declaratory relief with respect to certain Ordinances of the City of Atlanta, Georgia, and seeking to enjoin defendants (the Mayor, Vice-Mayor, Aldermen and General Manager of the Water Works of the City of Atlanta) from terminating water service at the plaintiff's premises and from refusing to contract with the plaintiff for continued water service.

Plaintiff and his family reside at 522 Martin Street, S.E., in Atlanta, Georgia, under a month-to-month oral lease agreement with Chapman Realty Company, under the terms of which lease, Chapman (as agent for the owner) undertook to pay all water and sewer charges at no extra charge to plaintiff in addition to his lease payments. Such charges were billed to Mr. G. Al Smith, % Chapman Realty Company, by the Department of Water Works. Plaintiff alleges that he has kept current with his rental payments and there is no contention or evidence to the contrary.

In December, 1970, water service was terminated at the premises of the plaintiff, apparently for two reasons: (1) defective plumbing at the premises which resulted in an exorbitant waste of water, and (2) the landlord's refusal to pay the outstanding water bill resulting therefrom. The plumbing was eventually corrected, and it is no longer claimed here that the plumbing is so defective as to necessitate termination of water service. The defendants' refusal to continue water service now is based solely on the fact that the large outstanding water bill has not been paid.

At the December 18, 1970, hearing on plaintiff's motion for a preliminary injunction, the grounds for which are discussed, infra, it was represented to the Court that the plumbing was momentarily to be repaired and that an arrangement had been made between the defendants and Chapman Realty Company whereby the outstanding water bill would be paid, and defendants' attorney represented to the Court that his clients would not discontinue water service to plaintiff's premises without notice to the plaintiff and the Court. On the basis of that representation, the Court denied the motion for a preliminary injunction.

The arrangement between the defendants and Chapman Realty Company then apparently broke down. Plaintiff renewed his motion for a preliminary injunction and a further hearing was held on April 7, 1971. Prior to that hearing, plaintiff requested the Water Department to provide him with water service in his own name. That request was refused.

At the hearing on April 7, the Court, after hearing from the parties, took the case under advisement, maintaining the status quo for 10 days to allow counsel an opportunity to arrange with the Water Department to continue water service to the plaintiff. On April 8, 1971, plaintiff, by letter, requested an accounting for water charges for the period from December 18, 1970 (the date the suit was filed) so that he might tender the amount due for service provided thereafter. The Water Department did not render the requested accounting but rather rendered an accounting for the entire balance and further indicated that water service would be terminated unless the total bill was paid.

The Court held a further hearing on April 27, 1971, with respect to plaintiff's motion and suggested that defendants file a motion to dismiss, with accompanying brief, and allowed plaintiff to respond thereto. Before the Court had ruled on the motion, several events1 occurred which appeared to have some bearing on the case, and the Court on June 3, 1971, conducted a further hearing to determine the effect of those events on the case. After determining that the matters referred to would not affect the issues herein, the Court ruled from the Bench, temporarily enjoining defendants from terminating plaintiff's water service and from refusing to contract with the plaintiff in his own name for water service. The nature of and basis for that relief is set out below.

The relevant provisions of the City of Atlanta ordinances and charter provide that the manager (of the City of Atlanta Department of Water Works) is authorized to terminate water service at any premises upon failure of any person to pay any water bill and declare that the manager is not required again to supply the premises with water until the arrears are fully paid.2 It is also provided that the manager is required to give three days notice to the owner or tenant before termination.3 In the instant case, it appears that the ordinance and charter provisions were followed to the letter. The landlord had not paid the water bill.4 Notice was sent to the landlord (% Chapman Realty Company) that the water service would be terminated unless the bill was paid. No notice was given to the plaintiff (tenant) by the Department of Water Works. The bill was not paid and the service was terminated. It has never been contended by defendants in this case that the plaintiff, as tenant, is liable for the bill. Plaintiff argues, in support of his motion for preliminary injunction, that the summary termination of his water service without affording him notice and an opportunity to contest his liability for the bill is in violation of his rights under the due process clause of the Fourteenth Amendment.

Plaintiff relies upon recent United States Supreme Court decisions which require prior notice and a hearing as a matter of due process of law before certain administrative action can be taken. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (prior hearing required on probable liability before suspension of uninsured motorist's drivers license following accident); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L. Ed.2d 287 (1970) (prior notice and hearing required before termination of welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required prior to garnishment of wages).5 The underlying principles applied in these cases may well be said to be merely a restatement of what Mr. Justice Frankfurter, some years ago, deemed essential to due process of law: "* * * the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction."6 Though, perhaps by necessity,7 this broad precept has not been the subject of uniform application,8 the underlying rationale has survived and has more recently taken the form of a "general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a `right' or a `privilege'."9 It is against a "curious patchwork"10 of precedents in this area that the Court must determine what, if any, notions of due process of law apply to the instant case.

The Court's original concern with the application of the principles of Goldberg v. Kelly and its progeny involved several factors. First, most of the cases applying the Goldberg rationale involved the termination of governmental rights, privileges or benefits to which the claimant was directly entitled.11 There was, in those cases, some direct relationship between the person receiving the benefit and the agency which was taking the terminating action. In the instant case, the plaintiff has been receiving a benefit, water service, not by direct entitlement, but by means of (1) a lease from his landlord, and (2) a contract between his landlord and the Department of Water Works. This additional factor rendered the application of the Goldberg rationale less than clear and a sort of "privity" factor appeared to the Court to be a possible obstacle to a requirement that the tenant (who had no direct relationship to the Water Works) be afforded notice and a hearing. Another concern of the Court was that, since the failure of the landlord to pay the water bill was apparently the reason the water service was to be terminated, the appropriate remedy for the plaintiff might be against the landlord for breach of contract and not by suit against the defendants here. Also, even assuming that Goldberg was applicable and that notice and a hearing were required, the Court questioned whether "liability" (of the plaintiff) was really the appropriate or decisive inquiry. In other words, what is the necessity of a hearing to determine what is not contested, i. e., the nonliability of plaintiff.

Although not lightly casting aside these factors, the Court believes they are overshadowed by the nature of the governmental function and private interest herein involved.12 There can be no serious doubt that water is an absolute necessity of life. The City of Atlanta, through the Department of Water Works, has undertaken to provide this important necessity to the people of Atlanta. In operating as a public service, and an apparent monopoly, the City necessarily is obligated to furnish water to all members of the municipality upon application subject only to the reasonable, nondiscriminatory rules and regulations of the Department of Water Works.13 The Court believes the fact that the City has undertaken to provide water to all members of the municipality upon application (which it has a duty to do) renders the important benefit bestowed by the City sufficiently analogous to an "entitlement" to satisfy any requirement along this line in the recent Supreme Court decisions. Goldberg v. Kelly, supra; Bell v. Burson, supra. Furthermore, the Court does not...

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  • Martell v. City of St. Albans
    • United States
    • U.S. District Court — District of Vermont
    • February 21, 2020
    ...review period to satisfy due process." Id. at 130 (quoting Mullane , 339 U.S. at 314, 70 S.Ct. 652 ); see also Davis v. Weir , 328 F. Supp. 317, 321–22 (N.D. Ga. 1971) (holding that "[t]he City cannot terminate water service without [providing] notice to the actual user of the service —in t......
  • Dawes v. Philadelphia Gas Commission, Civ. A. No. 73-2592.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 5, 1976
    ...Public Serv. Co. of Colorado, 350 F.Supp. 240 (D.Colo. 1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). See also Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976), in which my colleagu......
  • Koger v. Guarino
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • May 3, 1976
    ...v. City of Eureka, 399 F.Supp. 64 (D.Kan.1975); Limuel v. Southern Union Gas Co., 378 F.Supp. 964 (W.D.Texas 1974); Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971), aff'd 497 F.2d 139 (5th Cir. 1974); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell......
  • Sterling v. Village of Maywood, 77-1632
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 7, 1978
    ...entitlement to continued water service when that service is terminated due to arrearages in the landlord's bill. See Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976) and Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). With all due respect to those ......
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