Land Development Co. v. Sewerage and Water Board , 175 La. 669 ( 1932 )

This is a suit to enjoin the sewerage and water board of the city of New Orleans from cutting off the supply of water served by the defendant to premises owned by the plaintiff when the charge therefor had not been paid.

The substance of the lengthy prayer of the petition is that the defendant be enjoined and restrained from, at any time, shutting off or discontinuing the supply of water to the plaintiffs' properties under any pretense whatsoever.

It is alleged in the petition that defendant has fixed certain arbitrary charges, without lawful warrant, which it claims the right to collect; that plaintiff is entitled to have water supplied to its premises for sewerage purposes free of charge; that all charges for the service of water to plaintiffs' premises are assessed against the properties served regardless of the waste of water by its tenants; and, for the foregoing and other alleged reasons, which it is not necessary to specify, the defendant has caused damage to petitioner in a sum exceeding $2,000.

The petition was excepted to as not disclosing a right or cause of action. After a hearing, the exceptions were maintained, the rule to show cause why an injunction should not issue was discharged, the preliminary injunction prayed for was denied, and the suit was dismissed. The appeal is from that judgment.

The defendant sewerage and water board was created by Act No. 6 of the Extra Session of 1899. Twenty-four sections of this act, including section 21, were amended by Act No. 111 of 1902. Section 21, as amended, so far as its provisions are pertinent to this case, is as follows:

"Be it further enacted, etc., That the said Board shall have power to fix the rates to be charged private consumers of water and to collect the same from all persons who use water, (except for sewerage purposes only), from the public water supply of the City of New Orleans. * * * These charges shall be based, as far as possible, on the actual amount of water consumed, shall be equal and uniform for each grade or class of customers, and shall be framed so as to cover only the actual cost of maintenance and operation of the said public water system, inclusive of interest and sinking funds of any assumed mortgage bonds on said property, and of the furnishing of the public and private supplies. Said Board shall have further power to make reasonable rules and regulations for the use and consumption by such pay customers, and by such free customers of the water supply furnished them," etc.

The rate-making power of the sewerage and water board is limited by the proviso of section 23 of article 14 of the Constitution of 1921, which fixes the maximum charge for water at the rates in force on November 1, 1913, unless otherwise authorized by the Legislature.

Section 4 of Act No. 270 of 1908 is as follows:

"Be it further enacted, etc., That the owners of all premises shall be primarily liable for all water rates assessed against such premises for water used for all purposes, except sewerage; and the rates assessed against each premise for water used shall be a lien thereon for three years, equal in rank to the lien of taxes, to take effect against third persons on the recording of past due bills in the Mortgage Office," etc.

Whether or not the shutting off of the water supply because of the nonpayment of the charge for the service is a reasonable regulation is a question which has not heretofore been presented to this court, but in other jurisdictions it has been uniformly held that, where the power is conferred upon the board to fix rates and collect charges for serving premises with water, and with making needful rules and regulations with respect to the exercise of said powers, the shutting off of the water because of the nonpayment of charges for the service, was a reasonable regulation. This is the ruling in Tacoma Hotel Co. v. Tacoma L. W. Co., 3 Wash. 316, 28 P. 516, 14 L.R.A. 669, 28 Am. St. Rep. 35; American Water Works Co. v. State, 46 Neb. 194, 64 N.W. 711, 30 L.R.A. 447, 50 Am. St. Rep. 610; Shiras v. Ewing, 48 Kan. 170, 29 P. 320; People v. Manhattan Gas Light Co., 45 Barb. (N.Y.) 136; Harrisburg's Appeal, 107 Pa. 102.

The charge for serving premises, in the city of New Orleans, with water is a lien upon the property so served. Section 4, Act No. 270 of 1908. In Brumm v. Pottsville Water Co. (Pa.) 9 Sad. 483, 12 A. 855, 11 Cent. Rep. 792, the court held:

"But the supply of water may be cut off for arrearages due by the previous owner where the charter of the water company provides that real estate to which the water is supplied shall be bound and liable for the use of it."

In New Orleans Taxpayers' Protective Ass'n v. Sewerage Water Board, 132 La. 839, 61 So. 843, this court held that under the rules adopted by the board the allowance of free water for sewerage purposes was not merely a reasonable but a liberal allowance.

For the reasons stated, we find that the trial judge properly sustained the defendant's exceptions of no right and no cause of action, and the judgment appealed from is therefore affirmed at appellant's cost.

On Rehearing.