Jones v. City of Nashville

• Decision Date: 17 January 1903
• Parties: JONES v. MAYOR, ETC., OF NASHVILLE.
• Court: Tennessee Supreme Court

72 S.W. 985

109 Tenn. 550

JONES v. MAYOR, ETC., OF NASHVILLE.

Supreme Court of Tennessee.

January 17, 1903

Appeal from Circuit Court, Davidson County; J. A. Cartwright, Judge.

Action by Linnie B. Jones against the mayor and city council of Nashville. Judgment for defendants, and plaintiff appeals. Affirmed.

Colyar & Daniel, for appellant Price & McCannico, for appellees.

SHIELDS J.

This suit was brought by the plaintiff, Linnie B Jones, against the city of Nashville to recover $5,000 damages for the failure and refusal of the defendant to supply her with water. The plaintiff avers in her declaration that the defendant owns and maintains a system of waterworks, built and operated for the purpose of supplying its inhabitants with water; that she has been a resident of the city for some three years past, engaged in the business of keeping a boarding house, in rented premises at several places in the city, and that the defendant has wrongfully and unlawfully declined and refused to supply her with water, at these several places, for the space of some three years, although she, and her landlord and children for her, have tendered the money in payment of the usual and regular charges and rates therefor in advance, and thereby has destroyed her business and greatly damaged her.

The defendant filed two pleas, the general issue of not guilty and a special plea averring that, under an ordinance of the defendant duly enacted by its mayor and council, it was unlawful, and its officers were prohibited from furnishing and supplying any person, firm, or corporation, with water indebted to the city for water previously furnished and failing to pay such indebtedness upon the demand of the city authorities at the place where the indebtedness was contracted, or at any other place, until such indebtedness should be discharged, and that, before it failed and refused to furnish the plaintiff with water, she had become and was indebted to the defendant for water theretofore supplied her which indebtedness she refused to pay upon proper notice and demand, and that for this reason it had lawfully refused to further supply her with water.

The sections of the ordinance, which the defendant pleads in defense of plaintiff's action, necessary to be stated are as follows:

"Sec. 381. After the water tax assessment shall have been completed by the water tax assessor and turned over to the comptroller for collection, the comptroller shall insert twice in each of the daily papers an advertisement notifying water consumers of the completion of the water assessment. He shall also send to the name of each water consumer appearing on the book, taking street by street, a postal card, notifying such consumer that, if the tax assessed be not paid within twenty days from the date of notice, that the water will be turned off, and in cases of metre measurement he shall also give the reading of the metre of each consumer, showing quantity of water used and the cost thereof; provided, however, that the making out of the statement and the addressing of the cards to the respective water consumers shall be done in the water works office, and the board of public works and affairs are hereby authorized to employ an additional clerk at a salary not to exceed fifty dollars per month to perform this work and such other work as may be required of him.

"Sec. 382. At the expiration of the period named in said card of notice, the water tax assessor shall examine the books of the comptroller wherein is kept a list of the water consumers, and taking street by street, certify therefrom to the board of public works and affairs, the names of all parties who have not paid their water tax, giving names and number of street. This certified list the comptroller shall compare with his books, ascertain its correctness, and add his certificate thereto.

"Sec. 383. Whenever the water tax assessor and comptroller, in the performance of their duty as defined by law, certify to the board of public works and affairs, that any person, firm or corporation, is indebted to the city and is in arrears for water tax, said board is hereby authorized and required to have the water supplied by the city to such person, firm, or corporation, shut off.

"Sec. 384. The water thus turned off shall not be again turned on, except by officers or employees of the city duly authorized, and in no instance by them, until the entire tax due to the city by such persons, firms or corporations, is paid; provided, however, that all persons, firms or corporations that may be in arrears for two or more assessments at the date of the passage of this ordinance, shall be required to settle up said delinquency by installments, making at least one payment in amount equal to one of said assessments in the order they appear on the tax books every sixty days. Upon a failure of any delinquent to pay as above required, it shall be the duty of the comptroller to report said failure to the board of public works and affairs, who shall at once have the water turned off, and the water shall not be again turned on until the entire tax due is paid."

"Sec. 408. Whenever any person, firm or corporation becomes indebted to the city for water, and fails, on demand of the city authorities, to discharge said indebtedness, as provided in sec. 384, it shall not be lawful to furnish water to said firm, person or corporation, at the place where said indebtedness was contracted or at any other place within or without the city, until said indebtedness is discharged."

Sections 384 and 408 contain the provisions which were relied upon by the defendant. The other sections are set forth that the object and purpose of those relied upon, and their bearing upon the management and government of the waterworks department of the defendant, may fully appear.

The plaintiff assails the validity of sections 383 and 408, making it unlawful to furnish persons with water who are indebted for water previously supplied them, after notice and demand of payment, at the place where the indebtedness was contracted, or any other place, until such indebtedness shall be discharged, upon the ground that they are harsh, oppressive, and discriminating in their operation, and therefore unreasonable, in that they authorize and enable the city to coerce and compel its inhabitants receiving their water supply from it to pay past-due indebtedness created for water furnished them, by declining to further supply them with water until such indebtedness is paid, although they may be ready and willing to pay for the water desired, notwithstanding its duty as a public corporation to supply all persons with water who tender the regular rates therefor; and that for this reason said sections are to this extent void, and afford the defendant no protection in this action. The question, therefore, for determination is whether the ordinance in question is reasonable and valid or unreasonable and void, and, there being no controversy as to the facts, it is one of law to be determined by the court.

There is no arbitrary rule by which the reasonableness or unreasonableness of ordinances can be tried and tested, but much depends upon the surrounding circumstances, and the nature, purpose, and operation of the ordinance in question. And the same may be said in regard to the by-laws of public service corporations for the regulation of their business relations with the public, for such by-laws and ordinances of municipalities, of the nature of the one here involved, are much alike, and largely subject to the same limitations and rules of construction. It may be said, generally, that ordinances must be consonant with the Constitution and statutes of the United States and of the state, and with the general principles of the common law. They must be authorized by the charter of the corporation or general laws applying thereto, and consistent with the objects and purposes of its creation. They must be general, and applicable alike to all persons and property affected by them, and certain in their application and operation, and their execution not left to the caprice of those whose duty it is to enforce them. They must be just. And they should be adapted to the locality and affairs which it is intended they shall control and affect. They must not be harsh and oppressive. They must not discriminate in favor of or against any class of persons or property, but must be general in their nature, and impartial in their operation and effect. Long v. Taxing District, 7 Lea, 137, 40 Am. Rep. 55; Dillon, Mun. Corp. vol. 1, §§ 319-330; Am. & Eng. Ency. of Law, vol. 21, pp. 985-987.

An ordinance which is free from the objectionable features enumerated, and contains those stated to be necessary, may as a general rule be said to be reasonable and valid. The material and operative parts of the ordinance complained of are as follows: (1) That when the water has been turned off after the period of delinquency has expired, and the party has been notified to pay and has failed, it shall not be again turned on except by officers or employés of the city duly authorized, and in no instance by them until...