Etheredge v. City Of Norfolk

• Citation: 139 S.E. 508
• Parties: ETHEREDGE. v. CITY OF NORFOLK.
• Decision Date: 29 September 1927
• Court: Supreme Court of Virginia

139 S.E. 508

ETHEREDGE.

v.CITY OF NORFOLK.

Special Court of Appeals of Virginia.

Sept. 29, 1927.

Error to Circuit Court of City of Norfolk.

Action by the City of Norfolk against Mordaunt Etheredge. Judgment for plaintiff, and defendant brings error. Reversed, and judgment entered for defendant.

Wm. G. Maupin, of Norfolk, for plaintiff in error.

R. W. Peatross, of Norfolk, and George Read Martin, of New York City, for defendant in error.

CHINN, J. The city of Norfolk is authorized by its charter to provide an "adequate water supply for said city" and "to establish, impose, and enforce water rates."

A certain ordinance passed by the city, known as section 156 of the Norfolk City Code, 1920, reads as follows:

"Section 156. Both Owner and Occupant Responsible for Supply of Water to Premises Connected with City Sewer.

"The owner of any premises which are required by the city ordinances to be connected with the city sewer shall see that water from the waterworks of the city is connected with said sewerage on said premises, and not cut off therefrom at any time, except for necessary repairs, while said premises are occupied, and such owner shall cause the water rent for the use of water on said premises to be paid the division of water supply when due.

"Any person occupying any premises required by the city ordinances to be connected with the city sewer shall see that the water from the waterworks of the city is connected with the sewer on said premises, and not cut off therefrom; and no person shall occupy any premises required by the ordinances of the city to be connected with the city sewer, if the sewer on the premises is not connected with, or is cut offfrom, water from the waterworks of the city, except when necessary for repairs.

"No person shall use a water closet which is not connected with water from the waterworks of the city, or which is cut off therefrom.

"Any violation of this section shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for each offense.

"Nothing contained in this section shall be construed as prohibiting the department of public works from cutting off water from any premises upon the failure of the owner or tenant to pay the water rent."

On December 21, 1924, the city adopted an ordinance, amending the then existing ordinance, entitled "An ordinance prescribing a ready-to-serve charge for water consumers, fixing the rates to be paid for water, " etc., by which it was provided that each person using water furnished from the city water system should pay a flat quarterly rate wherever a meter was installed, and an additional charge per quarter for each additional 1.000 gallons of water consumed, varying with the quantity used. This ordinance goes on to provide that a penalty of 10 per cent. shall be added to the bill in case it is not paid on or before the 15th day of the month in which the bill is rendered, and further declares that:

"Whenever any bill for service or water shall remain unpaid thirty days after the first of the month in which the same is due, the bureau of water shall cut off water from said premises, and shall not turn the same on again until all delinquent charges therefor have been paid in full."

Claiming its right to do so by virtue of the provisions of the above ordinances, the water bureau of the city has pursued the method of charging and billing all water rents to the premises supplied with water, instead of to the owner or occupant of the premises. If the bill is not paid, no attempt is made to collect it from the occupant or consumer, as such, but the owner of the premises alone is held responsible, and, if he refuses to pay, the water is shut off until the delinquent bill is settled. It seems that this system has given rise to considerable friction and controversy between property owners and the city authorities whenever a tenant has vacated the leased premises leaving a delinquent water bill.

With this preliminary statement, the facts of the case presented by the record may be fairly stated in the language of the petition for writ of error, as follows:

"Mordaunt Etheredge bought in January, 1914, and has owned ever since, the premises, No. 300 Park avenue, Norfolk. He has never occupied the premises; never consumed any water therein; never made any contract with the city for water to be consumed therein; and never paid for any water so consumed. One Mrs. C. De Waters entered the premises under a writ ten lease from Etheredge and occupied them from September 1, 1924, until September 30, 1925; and in said lease she covenanted to pay all water rents levied, or to be levied, thereon during the term.'

"Mrs. De Waters moved out at the expiration of her term. It afterwards developed that a bill for consumption of water furnished said premises during the period beginning May 8, 1925, and ending August 6, 1925 (while Mrs. De Waters occupied them), amounting to $12.38. remained unpaid.

"Etheredge knew nothing about the unpaid water bill until after Mrs. De Waters moved out A new tenant was secured, who, upon going to the water department to arrange for water, was there advised of the unpaid bill and told that unless it was paid water would be cut off. The new tenant reported the situation to Etheredge and declined to move in unless the matter was adjusted.

"Thereupon Etheredge took the matter up with the city authorities and received from them a letter threatening to cut off the water unless the delinquent De Waters' bill was paid at once. He notified the attorney representing the Norfolk real estate board (of which Etheridge was a member), and the attorney notified the city that, if the threatened action was taken, mandamus proceedings and a suit for damages would be brought.

"The water was not cut off, but this proceeding—a motion for the recovery of money—was instituted by the city of Norfolk against Mordaunt Etheredge for the said sum of $12.38 represented by the delinquent water bill in question.

"It should be stated that this amount of $12.38 was made up of two items. One item of $2.50 represented the 'ready-to-serve' or 'advance quarterly' charge; and the balance, $9.88, was for the consumption of water, as shown by meter readings."

Etheredge, having agreed to pay the ready-to-serve charge, paid into court the said sum of $2.50, and, both parties waiving a jury, all matters of law and fact were submitted to the court. A judgment for $12.38, less the aforesaid credit of $2.50 was entered in favor of the city, and thereupon Etheredge obtained this writ of error.

The city's right to recover in this case being based solely upon the provisions of section 156 of the Norfolk City Code, the specific question presented for decision is whether that ordinance in so far as it seeks to make the owner of premises personally liable, irrespective of contract, for water consumed upon such owner's premises by a lessee thereof, is repugnant to the. Fourteenth Amendment of the Constitution of the United States and to section 11 of the Constitution of Virginia, in that it deprives such owner of his property without due process of law.

The books abound in adjudications involving various questions pertaining to the enforcement of water rents, and the respective rights of municipalities and private companies operating waterworks, on the oneside, and the owner or occupant of the premises, on the other; and while the question generally presented in these cases has been as to the reasonableness and validity of a specified ordinance or regulation and the right of the municipality or water company, acting under such ordinance or regulation, to shut off the water from the premises, and not the precise question of the owner's personal liability, as presented here, certain rules have been enunciated by the courts which may now be considered as firmly established. For instance, it seems to be agreed by all the authorities that when a municipal corporation engages in the business of furnishing water to its inhabitants by means of a permanent waterworks, it stands on the same footing, and has exactly the same right to make and enforce reasonable rules and regulations, as a private corporation upon whom a franchise for that purpose has been conferred, and therefore an ordinance prescribing such regulations has the same force, and no more, of a by-law of a private corporation whose powers are of like character and conferred for the same purpose. 1 Farnham on Waters and Water Rights, § 158, p. 814; 27 R. C. L. p. 1408; 3 Dillon on Municipal Corporations, p. 2204; Brumm, Appeal of (Pa.) 12 A. 855; State v. Albuquerque Water Supply Co., 19 N. M. 27, 140 P. 1056, L. R. A. 1915A, 242; Girard Life Ins. Co. v. Philadelphia, 8S Pa. 393; St. Louis Brewing Ass'n v. City of St. Louis, 140 Mo. 419, 37 S. W. 525, 41 S. W. 911; Chicago v. Northwestern Mutual Life Ins. Co., 218 Ill. 40, 75 N. E. 803, 1 L. R. A. (N. S.) 770.

The authorities are also practically unanimous that the regulation of a water company or ordinance of a municipality which requires the property owner to pay a delinquent bill for water furnished the tenant of the premises, which the owner has not contracted to pay, is unreasonable and void, unless a lien is given on the premises by statute, or there is at least some statutory authority therefor by virtue of the charter or othericise. Turner v. Revere Water Co., 171 Mass. 329, 50 N. E. 634, 40 L. R. A. 657, 68 Am. St. Rep. 432; Covington v. Ratterman, 128 Ky. 336, 108 S. W. 297, 17 L. R. A. (N. S.) 923; Burke v. Water Valley, 87 Miss. 732, 40 So. 820, 112 Am. St. Rep. 468; McDowell v. Avon-by-the-Sea Land & Improvement Co., 71 N. J. Eq. 109, 63 A. 13; Chicago v.-Northwestern Life Ins. Co., 218 Ill. 40, 75 N. E. 803, 1 L. R. A. (N. S.) 770; Scotillo v. Water Supply Co., 19 N. M. 27, 140 P. 1056, L. R. A. 1915A, 242; Wood v. Auburn, 87 Me. 287, 32 A. 906, 29 L. R. A. 376; Millville Improvement Co. v. Millville Water Co., 92 N. J. Eq. 480, 113 A....