Opinion
19913.
SUBMITTED NOVEMBER 12, 1957.
DECIDED JANUARY 10, 1958.
Bond validation; constitutional question. Before Judge Davis. Walker Superior Court. September 27, 1957.
G. W. Langford, A. W. Cain, Jr., for plaintiff in error.
Paul W. Painter, Earl B. Self, Solicitor-General, contra.
The charter provision of the City of Rossville, authorizing the contract, and the provision of the contract, authorizing the party with whom the city contracts for water and sewer service to the residents of the city to cut off the water to a consumer for nonpayment of his bill for sewer service after a period of sixty days from its maturity, do not deny the consumer due process in violation of the State and Federal Constitutions, and the provisions are valid.
SUBMITTED NOVEMBER 12, 1957 — DECIDED JANUARY 10, 1958.
To bond-validation proceedings, pursuant to Code § 87-301 et seq., by the State of Georgia through Earl B. Self, Solicitor-General, against the City of Rossville, in Walker Superior Court, Clyde A. Liner, as a resident, citizen, and taxpayer of the City of Rossville, filed an intervention seeking to enjoin the proceedings. Several separate bond issues were included in the petition to validate. The intervenor demurred to the petition and filed an answer. The petitioner demurred to the answer. However, the demurrers and answer of the intervenor attacked only the sewer-improvement bonds.
The intervenor demurred to so much of the petition as pertained to the sewer bonds on the ground that the action of the city was based on the 1952 charter amendment (Ga. L. 1952, p. 2283), asserting that the amending act was unconstitutional, in that it denied due process as required by the State and Federal Constitutions in authorizing the city to obligate its citizens to pay for water under an agreement to which they were not parties, and also in that it conferred upon the city power to enter a contract whereby the water of the petitioner as a tax-payer, consumer, property owner, and citizen could be cut off without notice or opportunity to be heard in the event of dispute as to water and sewer charges. The answer sets up the same grounds of complaint. The answer also had attached as exhibits two contracts alleged to constitute a part of the same transaction, entered into by the City of Rossville with (1) the City of Chattanooga, Tennessee, whereby the two cities would provide each other with connecting sewers, and the City of Chattanooga would fix sewer-service charges and perform related services, and (2) the City Water Company of Chattanooga, whereby it would bill and collect sewer charges with water charges from the property owners and consumers, with power to cut off water for nonpayment of water and sewer charges.
It is alleged that, by virtue of the fact that the law inseparably connects the issuance of the sewer-improvement bonds and the related contracts, the validity of the bonds and the validity of the contracts constituting a part of the same transaction and the validity of the law authorizing them, must be considered together. The court sustained the demurrer of the City of Rossville to the intervention; overruled the demurrer of the intervenor to the petition for validation, and entered judgment of validation as prayed. The intervenor excepts to each of these judgments.
We find no necessity to deal here with the matter of trying to distinguish between governmental functions and proprietary functions of a municipal government. Hence we pass by as utterly immaterial here any references to such a distinction that might have been made in Aven v. Steiner Cancer Hospital, 189 Ga. 126 ( 5 S.E.2d 356); Lawson v. City of Moultrie, 194 Ga. 699 ( 22 S.E.2d 592); Reed v. City of Smyrna, 201 Ga. 228 ( 39 S.E.2d 668). In this case we need only to determine if the amended city charter empowers the City of Rossville to do what is undertaken, and if the charter provision is valid as against the constitutional attack that it denies due process as required by both the State and Federal Constitutions (Code § 1-815; Code, Ann., § 2-103). This court squarely held in Reed v. City of Smyrna, 201 Ga. 228, supra, that the Constitution expressly provides that the waterworks systems and sewer systems may be combined in the manner there undertaken by the City of Smyrna in accord with a charter amendment that authorized it. The undertaking here is in similar fashion and pursuant to a similar charter amendment, with the exception that here both the charter and the proposed contracts authorize the party with whom the city seeks to contract for water and sewer service to cut off the water of the user if he fails to pay his water or sewer bill, irrespective of how incorrect the bill might be, without affording an opportunity to the user to be heard as to his cause for nonpayment.
Counsel for the city cite Patterson v. City of Chattanooga, 192 Tenn. 267 ( 241 S.W.2d 291), where a similar provision for cutting off water for nonpayment of sewer charges was upheld against an attack that the contract was a denial of due process. But counsel for the intervenor cite Dodd v. City of Atlanta, 154 Ga. 33, 39 ( 113 S.E. 166, 28 A.L.R. 465), where this court said: "But there is one exception to this general rule which authorizes the city to shut off the water supply for failure of the consumer to pay such charges; and that exception is, that the water supply should not be shut off in case the consumer disputes, in good faith, either the amount due or his liability therefor." But it was further said, at page 36, that, "even in the absence of legislative authority, the general rule is that those furnishing the public with its water supply, either in a private or municipal capacity, may adopt, as a reasonable regulation for conducting said business, a rule providing that the water so furnished may be cut off for nonpayment therefor; and in pursuance of such regulation the water supply may be discontinued on the failure of the consumer to pay the water rates." And again, at page 37, it is said, "A municipality operating waterworks may avail itself of this principle [ where one party fails to perform a continuing contract the other may treat it at end], and may reasonably require payment of its water rates in advance or at stated intervals, and may, except in exceptional cases, enforce the requirement by cutting off the supply of water for nonpayment of the water rates by the consumer." A fair summation of the foregoing quoted rulings is that in Georgia it is entirely constitutional to provide for cutting off water for failure to pay at stated times the rates therefor, provided only that a consumer can not be deprived of an opportunity to, in good faith, present any reason why he ought not to be required to pay and have his claim adjudicated, providing he insures the city or other party furnishing water against loss. What was there ruled applies equally to charges for sewer services.
So we must take a look at the contract provisions here involved. It provides that "The company agrees to discontinue water service to those sewer users whose service accounts remain unpaid sixty (60) days after the due date, and the company further agrees not to re-establish water service through the turning on of such water until such time as all sewer service charges have been paid." This excerpt from the contract shows that the cut-off complained about will not be abrupt; will not surprise the consumer, endanger his property, or inconvenience him for a period of sixty days after his failure to perform his duty by paying his debts. If during the sixty-day period he is unable to reach an amicable adjustment of any complaint, and his position is correct, he can resort to the courts to protect himself.
The foregoing rulings control our judgment, and we need not deal with other matters discussed by counsel, such as rulings by the courts of other States and whether or not the charter of Rossville, without the amendment, is sufficient to authorize what is being done.
Judgment affirmed. All the Justices concur.