State Ex Rel. Scotillo v. Water Supply Co. of Albuquerque.

• Decision Date: 28 April 1914
• Docket Number: No. 1584.,1584.
• Citation: 140 P. 1056,19 N.M. 27
• Parties: STATE EX REL. SCOTILLO ET AL.v.WATER SUPPLY COMPANY OF ALBUQUERQUE.
• Court: New Mexico Supreme Court

19 N.M. 27

140 P. 1056

STATE EX REL. SCOTILLO ET AL.

v.WATER SUPPLY COMPANY OF ALBUQUERQUE.

No. 1584.

Supreme Court of New Mexico.

April 28, 1914.

Syllabus by the Court.

The owner of a municipal utility, whether a private party or the municipality, may prescribe and enforce such rules and regulations for its convenience and security as are reasonable and just, and refuse to furnish water, or other service being supplied, to any person who declines to comply with the same.

The right of a municipality, operating a municipal utility, to make and enforce reasonable rules and regulations, is exactly the same as that of a private corporation.

A rule which provides for shutting off the supply of water from the person who contracted for and received the water, in default of payment for the same, is just and reasonable, and may be enforced by the company, where there is no dispute as to the amount owing, or the water was not furnished for some other place or residence, or for a separate and distinct transaction from that for which he is claiming and demanding a water supply.

In the absence of a statute, or an ordinance enacted under authority of a statute, making a charge for water supplied a lien upon the land or premises for unpaid dues, or which uses words equivalent to giving a lien, a rule or regulation which authorizes a water company to shut off the supply from the consumer in all cases of nonpayment of water rates would be unreasonable and void if so construed as to permit the water to be shut off and turned on because a former owner or occupant had not paid his bill for water, and thereby coerce the new owner or occupant into paying for water, or service, for which he did not contract and from which he received no benefit.

Where the state law gives to the water company or municipality a lien upon the land and premises for unpaid dues, or uses words equivalent to giving a lien, a rule or regulation of the water company which provides for shutting off the supply and discontinuing the service until the delinquent charges are paid is reasonable, and may be enforced against a subsequent tenant, owner, or occupant of the building or premises upon which the lien exists.

Section 1, c. 68, S. L. N. M. 1912, gives to the water company, engaged in supplying water to the inhabitants of cities and towns, a lien on the real estate and premises where the water is used for all legal charges for the water so supplied.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Mandamus by the State, on the relation of Charles Scotillo and another, composing the firm of Scotillo & Nizzi, a partnership, against the Water Supply Company of Albuquerque, a corporation. Judgment for relators, and defendant appeals. Reversed, with directions.

The material facts in this case are: “That appellees were copartners, conducting a business at Nos. 225 and 227 North Third street in the city of Albuquerque, said premises being owned by one G. Badaracco. That from August, 1912, until the 17th day of February, 1913, appellees occupied the premises under a lease by the terms of which the landlord was to pay the water rent. In February, 1913, the landlord became delinquent to the appellant, and the water was shut off and the meter taken out. Thereupon appellees made a new lease with the landlord, under which the appellees agreed to pay the water rent accruing thereafter, but appellees did not undertake nor agree to pay the past-due water rent. After the new lease was made, appellees informed the appellant of the terms of the new lease, as it affected the payment of the water rent, and demanded that the water be turned on, and agreed to pay the regular rates charged by the company and to comply with “all the reasonable rules and regulations” of the appellant. Appellant, however, refused to turn on the water until the sum of $9.55 was paid, said sum being the amount due from Badaracco, the landlord, for the period during which appellees had occupied the premises under the lease requiring the landlord to pay water rents. Appellees thereupon applied to the district court for a peremptory writ of mandamus to compel the appellant to turn on the water. Upon an agreed statement of facts, and after hearing argument in the case, the court granted the writ, and from this judgment this appeal is prosecuted.

Where the statute gives a water company a lien on premises for unpaid dues, a regulation of the company providing for discontinuance of services until delinquent charges are paid may be enforced against a subsequent tenant, owner, or occupant.

A. B. McMillen, of Albuquerque, for appellant.

John C. Lewis, of Albuquerque, for appellees.

ROBERTS, C. J. (after stating the facts as above).

The appellant refuses to turn on the water until the appellees pay the bills incurred by their landlord for water supplied to the landlord for the premises occupied by appellees, because it has, during the whole existence of its franchise, established and enforced a rule that where water rates are not paid monthly, within a rasonable time after the same become due, the water will be turned off for nonpayment and remain off until the delinquent charges have been paid.

[1] There is no question raised as to the amount or justness of the delinquent charge; hence the only question in the case is as to whether the rule adopted, and here attempted to be enforced by the water company, is reasonable, for it is universally conceded by the courts that the owner of the municipal utility, whether a private party or the municipality, may prescribe and enforce such rules and regulations for its convenience and security as are reasonable and just, and refuse to furnish water, or other service being supplied, to any person who declines to comply with the same. American Waterworks Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. St. Rep. 610. The rule is stated as follows by Farnham (section 161, vol. 1, Waters and Water Rights): “It [the company] may prescribe all such rules and regulations for its convenience and security in supplying water to a city or its inhabitants as are reasonable and just, and may refuse to furnish water to any inhabitant who refuses to comply with such reasonable rules and regulations. But the rules must be reasonable, just, lawful, and not discriminatory. And such rules may be enforced by shutting off the supply of a customer who refuses to comply with them. But the enforcement of unreasonable rules will be enjoined.”

[2] And the authorities all agree, and appellees concede, that the right of a municipality, operating a municipal utility, to make and enforce reasonable rules and regulations, is exactly the same as that of a private corporation; no more and no less. Girard Life Insurance Co. v. Philadelphia, 88 Pa. 393; Brewing Association v. City, 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.

[3] Appellees admit, and the courts universally hold, that a rule which provides for shutting off the water supply from the person who contracted for and received the water, in default of payment for the same, is just and reasonable, and may be enforced by the company (see note to the case of State ex rel. Hallauer v. Gonsell [Wis.] 61 L. R. A. 33, where the cases are collected on page 105; and note to case of City of Mansfield v. Humphreys Mfg. Co., 82 Ohio St. 216, 92 N. E. 233, 31 L. R. A. [N. S.] 301, 19 Ann. Cas. 842),...