City of Atlanta v. Burton, 90 Ga. 486

City of Atlanta v. Burton

90 Ga. 486 | Ga. | 1892

Lumpkin, Justice.

There can be no doubt, we think, that the provision of the charter of Atlanta quoted in the head-note did not contemplate an exclusively cash system in the furnishing of water by the city. If this had been intended, nothing would have been said about “arrears, with interest thereon.” It is true that if the city required monthly payments in advance, which would be the only way of enforcing a strictly cash system, a citizen might make default in paying at the beginning of a particular month, but his water would be promptly cut off, and there could be no charge against the premises he occupied for either arrears or interest. To require payments at the end of each month would be neither more nor less than to have a credit system, under which there could be, in cases of default, arrears upon which interest would accrue. Clearly, then, the board of water comsioners have authority under the charter to furnish water on credit. The section of the charter from which the above extract is taken is operative proprio vigore, and needs nothing to make it effectual. The city authorities could not, by ordinance or rule, do anything more than the charter permits, nor could they thus make its provisions as to the matter in question plainer or more readily capable of enforcement.

*489It will be observed that the water is no.t furnished to individuals or to persons of any kind, but is furnished to buildings, places and premises; and doubtless the charges in the books of the water board are made accordingly. The charter did not contemplate nor intend that water should be furnished upon individual or personal credit, but that the supply should be made a charge upon the property to which the water was conveyed. It is somewhat analogous to a lien for taxes, which attaches to the property itself, and for the payment of which the property is subject; with this difference, however, that while the lien for taxes attaches without the consent of the owner, no charge for water can arise against any premises unless the owner or occupant thereof has voluntarily requested the supply. to be turned on. We do not, of course, mean to rule that-one who orders water is not liable to pay for it, but are simply showing the right of the city to enforce payment for water furnished by making the amount due for it a charge on the property supplied with it.. Therefore, when any particular building or premises is in arrears for water charges, the city does not demand of the present occupant the payment of a debt due by a former occupant, for which the latter is doubtless liable, but simply exercises its right to require that its proper charge against this building or premises shall be paid before again supplying it with water. To persons who are diligent, this reasonable regulation will not operate as a hardship. It is a very easy matter to ascertain, before buying or renting property, what charges stand against it for water already furnished, and provide against being required to pay the same in making the contract to purchase or rent. A very little reflection will suffice to show that when water is furnished on credit at all, some such system as the one above set forth is absolutely necessary to save the city *490from numerous and constant losses, which would simply increase the burdens of those who do pay promptly for the water they consume, as well as of all other taxpayers of the city. Indeed, it would be impossible to furnish water on credit to persons having no visible property with any degree of safety, and as a consequence, this class of persons, who are entitled to have and ought to receive the benefits of the city waterworks, would thus be deprived of their water supply unless they were compelled to pay in advance, a requirement which would be manifestly unjust unless imposed upon all consumers alike. We therefore think that the provisions of the city charter on this subject are both fair and just, and no good reason appears why they should not be enforced.

The existence of an ordinance requiring all persons using water-closets with sewer connections to provide proper means for flushing the same with water from the city water-works, or from some other source from which a supply can be obtained of sufficient flow and strength to prevent the accumulation of offensive matter and to promptly and safely carry the same into the sewer, presents no valid objection against the propriety and justice of the regulation concerning the furnishing of water by the city and the collection of charges for the same. The city does not require or compel any citizen to take or use water from the water-works, and hence no property can become liable to charges for the city’s water-unless the owner or occupant thereof so desires. The city does require, as a sanitary measure, that water-closets shall be properly flushed and kept clean. Of the necessity and wisdom of this requirement there can be no possible question A citizen, however, is left free to obtain his water supply from private water-works or from any other source he pleases, provided only it be adequate and sufficient for the purpose designed.

*491The doctrine that a city has a right to shut off water from premises for non-payment of charges, and keep it shut off' until the arrears are paid, is sustained by Girard Life Ins. Co. v. Philadelphia, 88 Pa. St. 393; Com. ex rel. v. Philadelphia et al., 132 Pa. St. 288; and Sheward v. Citizens’ Water Co., 90 Cal. 635; and no doubt many other decisions to the same effect could readily be found. It follows that the payment of arrears in water charges by one in possession of a building, although such arrears had accumulated while it was occupied by a former tenant, is lawful, and 'the money cannot be recovered back from the city. Nor does it matter that the payment is made under protest and solely for the purpose of obtaining a supply of water in order to escape punishment for failing to keep a water-closet properly flushed, as required by the ordinance above mentioned. The- city having, as has been shown, the right to require such payment as a condition precedent to again supplying the premises with water, the motive or reason of the person for paying the charges and having the water again turned on is of no consequence whatever. Judgment reversed.