Ripperger v. City of Grand Rapids

• Decision Date: 18 February 1954
• Docket Number: No. 38,38
• Citation: 338 Mich. 682,62 N.W.2d 585
• Parties: RIPPERGER et al. v. CITY OF GRAND RAPIDS et al.
• Court: Michigan Supreme Court

Page 585

62 N.W.2d 585

338 Mich. 682

RIPPERGER et al. v. CITY OF GRAND RAPIDS et al.

No. 38.

Supreme Court of Michigan.

Feb. 18, 1954.

John M. Dunham, Grand Rapids, for plaintiffs and appellants.

Fred N. Searl, City Atty., Grand Rapids, George R. Cook, Deputy City Atty., Lowell, for defendants and appellees.

Before the Entire Bench.

KELLY, Justice.

The Superior Court of Grand Rapids granted a request of the Water Resources Commission and decreed that the city of Grand Rapids construct adequate sewage disposal facilities and refrain from further pollution of the Grand river. The city commission complied by enacting ordinance 1340, thereby placing the entire sewage disposal service on a utility basis, and also prescribed rates for the use of same.

Plaintiffs do not question the commission's action in the passage of the ordinance, or the authorization or sale of the bonds. This appeal presents to this Court two questions:

1. Did the city of Grnad Rapids have the right to pass an ordinance (section 11 hereinafter quoted) giving to its officials authority to shut off the water supply to a consumer for failure to pay sewage disposal charges?

2. Did the provisions of the ordinance, and more particularly section 8, violate the laws of this state?

The legislature passed what is commonly known as the revenue bond act, P.A.1933, No. 94, as amended, C.L.1948, § 141.101 et seq., Stat.Ann. § 5.2731 et seq. Section 21 of this act was amended by P.A.1941, No. 210, to include the following:

'In addition to any other lawful enforcement methods, the payment of charges for water service to any premises may be enforced by discontinuing the water service to such premises and the payment of charges for sewage disposal service to any premises may be enforced by discontinuing either the water service or the sewage disposal services to such premises, or both. The inclusion of the above methods of enforcing the payment of charges for water and sewage disposal, in any ordinance heretofore adopted, is hereby validated.' C.L.1948, § 141.121, Stat.Ann. § 5.2751.

The commission of the city of Grand Rapids decided that the charge for sewage service would be based upon the water metered for the winter quarter, and so provided in the ordinance. We agree with the statement of the trial court as follows:

'It is evident therefore that in basing the use charge of this period that the City considered that it was during this time of the year that little if any water that passed through the meter would be used for outside purposes and would fairly represent for the whole year the amount of water entering the sewer.'

Section 11 of ordinance 1340 provides for the enforcement of service charges in the following language:

'The charges for sewer service are hereby recognized to constitute a lien on the premises served thereby, in accordance with the provisions of Section 33 1/2 of Title VIII of the City Charter of the City of Grand Rapids. Whenever any such charge against any piece of property shall be delinquent for six months the city officials in charge of the collection thereof shall certify to the tax assessing officer of the city the fact of such delinquency, whereupon such charge shall be entered upon the next tax roll as a charge against such premises, and shall be collected and the lien thereof enforced in the same manner as general city taxes against such premises are collected and the lien thereof enforced. Nothing in this section, however, shall be deemed to prevent the city from suing ina court of law to collect the amount due it for sewer service charges. In addition to the other remedies provided in this section, the city shall have the right to shut off and discontinue the supply of water to any premises for the non-payment of the sewer service charges when due.'

Plaintiffs contend that the charges for both water service and sewage disposal should be termed and declared a tax and should as a tax be collected onoy by assessment against the property or by personal action against the consumer.

This Court has not passed on the question as to whether charges for sewage disposal should be considered a tax, but has decided that charges for water service is not a tax. In Jones v. Board of Water Commission of Detroit, 34 Mich. 273, this Court said:

'The water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity, just as similar rates are payable to gas companies, or to private water works, for their supply of gas or water. No one can be compelled to take water unless he chooses, and the lien, although enforced in the same way as a lien for taxes, is really a lien for an indebtedness, like that enforced on mechanics' contracts, or against ships and vessels. The price of water is left to...