MacMahon v. Baumhauer

• Decision Date: 13 May 1937
• Docket Number: 1 Div. 965
• Citation: 175 So. 299,234 Ala. 482
• Parties: MacMAHON et al. v. BAUMHAUER et al.
• Court: Alabama Supreme Court

175 So. 299

234 Ala. 482

MacMAHON et al. v. BAUMHAUER et al.

1 Div. 965

Supreme Court of Alabama

May 13, 1937

Rehearing Denied June 28, 1937

Appeal from Circuit Court, Mobile County; A.E. Gamble, Judge.

Suit in equity by W.O. MacMahon against C.A. Baumhauer and others constituting the board of commissioners of the city of Mobile, in which there was intervention by Charles Otto. From a decree sustaining demurrers to the bill and petition for intervention, complainant and intervener appeal.

Corrected and affirmed in part and in part reversed and remanded.

ANDERSON C.J., dissenting in part.

W.O MacMahon, pro se.

Harry Seale, Robt. H. Smith, Armbrecht & Twitty, and Stevens, McCorvey, McLeod, Goode & Turner, all of Mobile, and Steiner, Crum & Weil, of Montgomery, for appellees.

Winston F. Groom, M.F. Dozier, and Albert S. Gaston, all of Mobile, amici curiae.

BROWN Justice.

This appeal is from the interlocutory decree of the circuit court denying appellants' motion for a temporary injunction and sustaining the demurrer of the defendants to the amended bill filed February 27, 1937. Therefore, we limit our consideration to the case as made by the averments of said bill, the intervention of Charles Otto, and the averments of the defendants' sworn answers in so far as such averments are pertinent to the questions raised by the assignments of error.

The bill is filed by a citizen and taxpayer, whose residence is connected with and supplied with water for domestic use by the water system owned and operated by the defendant City of Mobile, which use includes water for flushing into the public sanitary sewerage system, also operated and maintained by said defendant. Kimball v. North East Harbor Water Co., 107 Me. 467, 78 A. 865, 32 L.R.A. (N.S.) 805; 27 R.C.L. 1418, § 36.

The bill avers, in short, that the defendant City of Mobile, through its board of commissioners "passed an ordinance entitled 'An ordinance to amend an ordinance adopted March 26, 1936, *** as heretofore amended and entitled: 'An ordinance to impose rates or charges for the use and service of the sanitary sewer system of the City.'' (Italics supplied.) A copy of the ordinance is attached to and made a part of the averments of the bill, and embraces a classified schedule of rates or service charges assessed against users of said sanitary sewerages system. Such service charges are made payable monthly in advance.

Section 7 of said ordinance purports to empower the city, its agents and servants, to disconnect the public system, who fails to pay "the special charges levied under said ordinance" within ten days after same becomes due.

And by section 8 of said ordinance the city is empowered "to disconnect the water supply line or meter connecting the premises of any user with the water mains" where the water supplied thereby is used and discharged into the sewerage system, in the event the service charges imposed by said ordinance is not paid within ten days after the same becomes due.

That the water system and the sewerage system are operated by said defendant under separate and distinct departments and separate and distinct heads and superintendencies, and that separate and distinct contracts are required by the defendant city to obtain said two different functions and services.

That complainant's dwelling where he resides with his family is connected with and supplied by water for domestic use through defendants' said water system, that said residence is equipped with bathtubs, lavatories, sinks, etc., which are connected with and empty into the public sewerage system through complainant's sewerage connection installed on his own property.

That the defendant has furnished complainant water continuously since September, 1927, under contract made in accordance with the city's regulations, that he has paid promptly and regularly the charges for said service, and he offers to do equity, and has paid into court money to meet said charges for water supply. Notwithstanding all this, because the complainant has refused to pay said alleged service sewer charges, the said defendant city has given notice that it will, and at the filing of the bill was threatening to, and will if not enjoined therefrom, disconnect complainant's sewerage pipes leading into said public sewerage system, and for like reasons if not enjoined, will sever the complainant's water supply line and meter connections from the water system of the defendant city, thereby inflicting upon the complainant irreparable damage, converting said residence property into a nuisance dangerous to life and health, thereby taking or destroying complainant's property and property rights without due process of law.

The bill alleges facts which reasonably justified the inference that said service charges fixed by said ordinance for draining into said public sewerage system is unauthorized, unnecessary, excessive, and discriminatory; that no such charge is made by other cities in Alabama or contiguous states similarly situated; and that in levying said charge the board of commissioners of said city exceeded their power as limited by the Legislature in the acts empowering said city to acquire, construct, and maintain said sewerage system. And exceeded their power as limited by section 2121 of the Code 1923, and section 89 of the Constitution.

The bill further avers, to quote paragraph 16, thereof, "And your complainant further avers that the Respondents cannot be heard to say that the question raised in this instance is res adjudicata for that the judgment of this Court validating the ordinance, the enforcement of which this action is brought to enjoin, was and is void, in this: that under Section 3 of Act No. 106 [196] General Acts of Alabama, pages 582, 583, 584 and 585 of the General Acts of Alabama 1935, under which Act the aforesaid validation suit was brought, by virtue of the publication of notice as provided by the said Act, all taxpayers and citizens of the City of Mobile became parties defendant to said proceedings, and all three circuit judges of Mobile County were at that time and are taxpayers and citizens of the City of Mobile, and they were therefore parties defendant to the action; and your Complainant avers that one of the said circuit judges of Mobile County, to-wit, Judge Claude A. Grayson, tried the said cause and is bound by said decree; and your Complainant avers that it is a well known legal axiom that a man shall not sit in judgment in his own cause, and any judgment rendered in such instance is void."

The bill seeks to enjoin and restrain the city, its agents or servants from disconnecting the complainant's sewerage system from the public sewerage system and from disconnecting his water service pipes and meter connection from the city's waterworks system, and for general relief.

The intervener, Otto, adopts all the averments of said amended bill, and alleges further that he is a tenant of residence property on Government street in said city to which there is attingent a perpetual easement entitling said property to the use of the said public sewerage system, created by the covenants in a conveyance through which the city in 1899, acquired the properties of the "Conti Street Sewer Company," and constituted the same a part of said public sewerage system. The properties are specifically listed in the conveyance and the owners thereof named, and the rights are reserved "to the persons and their property" and it is declared therein that "the intent of this instrument being to preserve to the person therein named, and their property, and to their heirs, executors and assigns, the perpetual free use of said sewer with no liability upon them or their property to contribute hereafter toward the further building and construction or the maintenance and operation of the sewer."

Under the general laws, cities and towns are empowered to make all needful provisions for drainage, may acquire by purchase or construct and maintain sewers, and compel property owners to connect thereto and do away with surface toilets, cesspools, and sinks, and may assess the costs of the said system against the abutting property "to the extent of the increase of the value of such property by reason of the special benefits derived from such sewers or sewer systems and from the purchase of the same by the municipality." Code 1923, §§ 2076, 2081, 2083, and 2092.

And it appears that the City of Mobile has been exercising this power for upward of thirty years. Allman v. City of Mobile, 162 Ala. 226, 50 So. 238; Local Acts 1898-99, p. 895.

The Code, section 2121, provides that, "No charge shall be made for the use of said sewers or sewer system against any property assessed under the provisions of this article for the cost of the sewer, or against the owners or tenants thereof; but the council may prescribe a maximum volume of drainage for commercial or manufacturing business or plants, and make charges for such excess, or otherwise regulate the same."

Section 3 of the local law of November 30, 1898, enlarging the charter powers of the city of Mobile, under which it appears to have acquired its waterworks and system of sewerage which no doubt have been enlarged and extended under its general powers, provides: "That the said mayor and general council shall and it is hereby invested with full authority and power to make all proper regulations for preserving maintaining, and operating such water works and sewerage systems when established, and to collect such rates for waters supplied for the use of said sewerage system as shall be sufficient to pay the interest on any bonds issued by said city for the purpose of providing said water works and sewerage systems, and the expenses necessary for operating...