Metropolitan Life Ins. Co. v. Hansen

• Decision Date: 05 December 1934
• Docket Number: 25226.
• Citation: 38 P.2d 387,179 Wash. 537
• Court: Washington Supreme Court
• Parties: METROPOLITAN LIFE INS. CO. v. HANSEN et al.

38 P.2d 387

179 Wash. 537

METROPOLITAN LIFE INS. CO. v. HANSEN et al.

No. 25226.

Supreme Court of Washington

December 5, 1934

Department 2.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by the Metropolitan Life Insurance Company against William H Hansen and others. From an adverse judgment, the City of Tacoma appeals.

Reversed and remanded, with direction.

Howard Carothers, Hilton B. Gardner, and Bartlett Rummell, all of Tacoma, for appellant.

Hayden Metzger & Blair, of Tacoma, for respondent.

STEINERT Justice.

This is an action to foreclose a mortgage upon real estate, and also to foreclose the right asserted by the city of Tacoma to refuse to furnish further water and light service to the premises. The defendant mortgagors defaulted. A demurrer to the city's answer having been sustained, the city declined to plead further. Findings and conclusions were subsequently made, based upon which a decree granting the relief prayed for was entered. The city of Tacoma has appealed.

The facts necessary to be considered are these: Incorporated cities and towns of this state are authorized to construct condemn, acquire, and maintain waterworks and lighting plants for the purpose of supplying water and light to their inhabitants, with full power to regulated and control the reasonable use, distribution, and price of such water and light. Rem. Rev. Stat. §§ 8966 and 9488. The rates, tolls, and charges made by cities and towns owning such public utilities, and the reasonableness of their rules and regulations in connection therewith, may not be interfered with by the Public Service Commission. Rem. Rev. Stat. § 10454. Pursuant to the authority thus given by the statute, the city of Tacoma became the owner of a water system and also of a lighting system.

In 1909 the Legislature passed an act giving cities owning their own waterworks, electric light, or power plants a lien for delinquent and unpaid charges for water, electric light, or power, against the premises to which such service has been furnished. The act further provides that such lien may be enforced only by cutting off the water, electric light, or power from the premises until such charges are paid. Rem. Rev. Stat. §§ 9471, 9472. Pursuant to the authority of that act, the Tacoma city council passed ordinances Nos. 7038 and 9070 relating to the use of water and light, fixing rates, providing methods for collection of charges, and authorizing its officers to cut off service for delinquencies and to withhold further service until such delinquent charges are paid.

In 1933 the Legislature (Laws 1933, p. 473) amended section 9471, supra, by adding thereto two provisos. Under the first proviso, the owner of the premises, or the owner of a delinquent mortgage thereon, may give written notice to the head of such utility to cut off the service from the premises, and, from and after the giving of such notice and the payment or tender of the then delinquent and unpaid charges plus the cut-off charge, the city shall have no lien against the premises for any charges for such service thereafter furnished, nor shall the owner of the property or the owner of a delinquent mortgage thereon he held for the payment thereof. Under the second proviso of the amending act, 'such liens shall not be for more than four months' charges due or to become due, nor for any charges which have been due for more than four months.' Chapter 135, p. 473, Laws of 1933.

On February 10, 1927, the owners of the premises here involved executed a mortgage covering the real estate together with the improvements thereon. That mortgage is now owned and held by respondent. Prior to the execution of the mortgage, however, the city had begun to furnish water and light to the premises, which service it continued until the early part of July, 1933. Charges for water service becoming delinquent and being unpaid in the sum of $20.45, the city shut off the water on July 5, 1933. Charges for light service becoming delinquent and unpaid in the sum of $26.42, plus 64 cents federal tax, the city cut off the light on July 11, 1933. Both charges were for service rendered subsequent to the execution of the mortgage.

The present action was instituted December 28, 1933.

The question presented by this appeal is this: May the city's statutory right to cut off water and light service from premises, for delinquent charges, until such charges are paid, be foreclosed and barred in an action brought to foreclose a mortgage on the real estate, executed after the city has begun to supply the water and light thereto, but Before the rendition of the particular service for which the charges have become delinquent?

In McCormacks, Inc., v. Tacoma, 170 Wash. 103, 15 P.2d 688, it was held that under Rem. Rev. Stat. §§ 8966, 9488, and 10454, supra, the city of Tacoma had the power to conduct, in a reasonable manner, its light and water business, and that it could adopt rules and regulations for, and control the price and distribution of, its service without interference from the Public Service Commission. After holding that the act of 1909 (Rem. Rev. Stat. §§ 9471 and 9472, supra) was not unconstitutional, the opinion, proceeding upon quotation of authority, further holds that the provision of the ordinance giving the city officers the power to shut off the service from the premises affected, and to keep it shut off until the sums due therefor are paid, if in the opinion of such officers, such a course of conduct is necessary to collect the amount due, was a reasonable provision.

The sweeping significance and effect of that decision will be recognized when we recall the fact, as disclosed in the opinion, that the delinquent charges there amounted to over $2,000 and that the decree provided that the city was not required to furnish such service to a subsequent owner of the premises until the city's claim had been paid in full. Manifestly, the effect of that decision is to compel one person to pay for service which has been supplied to another. Harsh as this result may at first appear, it nevertheless is the product of a rule adopted not only in this state but generally throughout the Union. Girard Life Ins. Co. v. City of Philadelphia, 88 Pa. 393; Appeal of Brumm, 12 A. 855, 9 Sad. (Pa.) 483; Kohler v. Reitz, 46 Pa. Super, 350; Rochester Bldg. & Loan Ass'n v. Beaver Valley Water Co., 68 Pa. Super. 122; City of Atlanta v. Burton, 90 Ga. 486, 16 S.E. 214; City of East Grand Forks v. Luck, 97 Minn. 373, 107 N.W. 393, 6 L. R. A. (N. S.) 198, 7 Ann. Cas. 1015; State ex rel. Scotillo v. Water Supply Co., etc., 19 N.M. 27, 140 P. 1056, L. R. A. 1915A, 242; Loring v. Commissioner of Public Works, 264 Mass. 460, 163 N.E. 82; Provident Institution, etc., v. Jersey City, 113 U.S. 506, 5 S.Ct. 612, 28 L.Ed. 1102; Dunbar v. City of New York, 251 U.S. 516, 40 S.Ct. 250, 64 L.Ed. 384. In the Minnesota case just cited, it was held that a statute fixing personal liability for the charges upon the owner of the premises was constitutional, and in several others of the cases it was held that a statute establishing a lien directly against the premises was likewise constitutional. Neither of these latter questions, however, is involved in this case.

To mitigate the harshness of the rule laid down in the McCormacks' Case, the Legislature passed the amending act of 1933, which gave the owner of the premises, or the owner of a delinquent mortgage thereon, the right, by written notice, to cut off the service, and which also limited the city's lien to four months' delinquent charges. In so far as the extent of the charges and the time limit of the lien are concerned, the 1933 amendment has no restrictive application to the present case, for it is conceded that no notice to discontinue the service was ever given by the respondent, and, further, that the delinquent charges are within the four-month period.

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