Summary
In Harrison, the Supreme Court upheld a DeKalb County Ordinance which authorized "the discontinuance of water service at any meter service where there is a delinquent water bill after the occupant of the premises has been notified of the delinquency and has failed to remove it by payment of the bill regardless of whether the bill remaining delinquent was incurred by a prior owner or occupant of the premises." 226 Ga. at 345, 175 S.E.2d at 28.
Summary of this case from Davis v. WeirOpinion
25763.
ARGUED APRIL 15, 1970.
DECIDED MAY 7, 1970.
Mandamus. DeKalb Superior Court. Before Judge Thibadeau.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellants.
Harrison, Martin Childs, Mobley F. Childs, for appellee.
1. A county has the authority to discontinue the furnishing of water at any meter service point where there is a delinquent water bill after the occupant of the premises has been notified of the delinquency and has failed to remove the delinquency by the payment of the bill regardless of whether the bill remaining delinquent was incurred by a prior owner or occupant of the premises provided the county has previously promulgated an ordinance or regulation specifically providing for the action of the county if such a delinquency occurred. In this case an ordinance authorizing such action on the part of the county was in effect at the time of the acts complained of and it was error for the court to mandamus the county to supply water to the complainant without removing the alleged delinquencies and to enjoin the practice of refusing to supply water contrary to the provisions of the ordinance.
2. The judgment of the trial court was also erroneous in that its terms sought to have effect as in a class action when the action does not qualify as a class action.
ARGUED APRIL 15, 1970 — DECIDED MAY 7, 1970.
Donald P. Jones, Sr., filed a complaint against the members and chairman of the Board of Commissioners of Roads and Revenues of DeKalb County, seeking a mandamus absolute against the defendants requiring them to furnish water to the premises known as 4245 Roxbridge Heights Road, DeKalb County, Georgia, owned by complainant, and upon which a dwelling house is located, and to the premises at 3122 Piper Drive, DeKalb County, Georgia, owned by William Mackris for whom complainant contracted to manage the premises. The basis of the complaint was solely that the water bills past due and unpaid were not incurred by complainant or William Mackris and that the defendants had no authority to refuse to furnish water to the said premises. The complaint also sought a temporary restraining order and injunction requiring the defendants to desist from their refusal to furnish water to the premises described. The court heard the issues made by the defendants' defenses, granted the mandamus absolute and further ordered as follows: "[t]he defendants are hereby restrained and enjoined from the water service as indicated in petitioner's motion, and defendants are hereby ordered to reinstall the water meters removed from premises indicated in the motion. It is further ordered that the defendants be and are enjoined from continuing the practice as set forth in movant's petition on any and all properties located in the County of DeKalb, State of Georgia."
Pretermitting the question whether the court was technically correct in certain aspects of the injunction against the defendants, the court erred in granting a mandamus absolute and a permanent injunction for the reason that DeKalb County Ordinance Sec. 13.66.1 authorizes the discontinuance of water service at any meter service where there is a delinquent water bill after the occupant of the premises has been notified of the delinquency and has failed to remove it by payment of the bill regardless of whether the bill remaining delinquent was incurred by a prior owner or occupant of the premises. The ordinance forbids the county from supplying water again to any such building or premises until such arrears shall be fully paid. The validity of such an ordinance was upheld in City of Atlanta v. Burton, 90 Ga. 486, 489 ( 16 S.E. 214). Dodd v. City of Atlanta, 154 Ga. 33 (7) ( 113 S.E. 166, 28 ALR 465) is to the same effect as to the facts of this case but in that case the water was cut off, or proposed to be cut off, because the cost of the installation of the meter, etc., had not been paid. All bills for water consumed had been paid but not the water installation service including the meter. There the court enjoined the cutting-off of the water because there was no ordinance or regulation to the effect that the water could be cut off merely because the installation bill had not been paid. If there had been such a regulation the water could have been cut off for failure to pay such installation costs.
In the instant case no allegation is made in the complaint that the occupants of the houses were not notified of the delinquency in water-bill payments or that no demand had been made upon them. The complainant knew at the time he instituted the action that the bills had not been paid by the former occupants and what the total cost of reconnecting the water service would be.
The complaint in this case does not qualify as a class action in any particular and for this additional reason the trial judge erred in his rulings extending his findings to all inhabitants of DeKalb County occupying a position similar to the complainant.
The court erred in ordering a mandamus absolute and injunction against the appellees.
Judgment reversed. All the Justices concur, except Nichols, J., who dissents.