Arkansaw Water Co. v. Furnish ( 1917 )

Wood, J.

(after stating the facts). The findings of fact by the court are sustained by the evidence. The appellant contends that it had the right to cut off appellee’s supply of water when it discovered that there was a leak in the hydrant resulting in a waste of water, and that it was not required to give the appellee any prior notice in order to enable him to repair the leak. Appellant justifies its act in cutting off the water, without giving the appellee previous notice that it was going to do so, under section 13 of the ordinance of December 9, 1880, as follows:

“13. The authorized agents of the company shall have the right to enter upon the premises of any consumer of water furnished by the company, for the purpose of examining the pipes and fixtures and preventing waste, and in the event that any consumer permits waste of water, then the company may shut off the water supply from said premises.”

An amended ordinance of the city, passed in 1904, reads as follows: “The water company shall have the right to refuse to supply at flat rate any consumer whose fixtures are allowed to get out of repair and leak, or when water is wasted and improperly used; in such cases the water company shall first notify the consumer to repair leaky fixtures or correct the abuse; if not repaired and corrected in a reasonable time and water is again found wasting and fixtures leaking, the water company shall have the right to set a meter.”

It will be observed that section 13 of the ordinance of 1880 does not expressly require any notice to be given to consumers of water before shutting off their water supply where they are permitting a waste of water. The ordinance is silent as to notice. But it expressly grants the right to shut off the water supply where the consumer permits a waste of water and appellant contends that it should be construed as if the words “without notice” were contained therein. If this were the only ordinance on the subject of the waste of water, it might be conceded for the purposes of this decision that the appellant would have the right to shut off appellee’s water supply without giving him previous notice of its intention to do so.

But that part of the ordinance of 1904 above quoted fully covers all of the subject-matter of section 13, and more. In Coats v. Hill, 41 Ark. 149, we said: “Repeals by implication are not favored. To produce this result, the two acts must be upon the same subject, and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates, to the extent of the repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended asa substitute for the first.”

Now, under the ordinance of 1904, when the consumer under the flat rate allows his fixtures to get out of repair and leak, and therefore waste the water, the company has no right to shut off his water supply at all as a means of preventing the waste of water. The method which it must pursue in such cases to prevent waste .is to first notify the consumer to repair the leaky fixtures or correct the abuse. If the consumer, after receiving such notice, does not repair the fixtures or correct the abuse, then the company, after a reasonable time has elapsed, may install a meter and in this way charge the consumer for the water that is being wasted. The two methods prescribed by section 13 and the ordinance of 1904, for the prevention of waste are entirely different and wholly repugnant to each other. For, conceding that under section 13, the supply of water may be shut off without previous notice to the consumer, still, under the ordinance of 1904 the water supply can not be shut off at all so long as the consumer is paying the water charges, even though he has notice to repair the leaky fixtures. If the consumer allows the waste to continue after he receives such notice and after he has had a reasonable time to make repairs, then the company may, by installing its meter, compel him to pay for the water that thereafter goes to waste. The latter ordinance does not contemplate that the consumer on a flat rate shall be denied a supply of water to his premises so long as he pays the rent charges, even though there may be a waste of water by defective and leaky fixtures. But the design of the ordinance was to compel the consumer to pay for the water which was going to waste through his neglect to repair the fixtures after he was notified of their defective condition, and had had a reasonable time to repair them. The two ordinances being totally repugnant to each other, can not therefore stand together. Moreover, even if they were not repugnant to each other, the last ordinance, as before stated, covers the whole subject-matter of the first, with other provisions, and was manifestly intended as a substitute for it so far as the method of preventing waste is concerned. See Carpenter v. Little, 101 Ark. 238.

The judgment is correct and it is affirmed.