Hiller v. City of Pinckneyville

Full title: F. B. Hiller, Appellee, v. City of Pinckneyville and John Keene, Appellants

Court: Appellate Court of Illinois, Fourth District

Date published: Jan 23, 1933

269 Ill. App. 53 (Ill. App. Ct. 1933)

Opinion

Opinion filed January 23, 1933.

1. WATERS AND WATER SUPPLY — when city cannot shut off water supply for nonpayment of bill. Although payment of a water bill, owing a city, is refused, the city will not be permitted to shut off the consumer's water supply, where, since the bill became due, the city has continued to furnish to the consumer water for which he has paid.

2. WATERS AND WATER SUPPLY — how old water bill enforceable by city sued for injunction. Where a city, which has continued to furnish a consumer with water for which the consumer has paid, shuts off the consumer's water supply because of the consumer's refusal to pay an old water bill, and the consumer sues for an injunction, the city cannot litigate the validity of the old bill in the injunction suit but must sue thereon at law.

3. WATERS AND WATER SUPPLY — how consumer may enforce credit on water bill after supply shut off for nonpayment. A physician rendering medical services to city employees and refusing, unless the city credited him with his charge for such services, to pay a water bill owing by him to the city, was not entitled to a mandatory injunction, issued without notice and continued after answer and motion to dissolve, to compel the city to restore his water supply which the city had shut off because of the water bill's nonpayment, the physician's claim against the city, if any, being enforceable not in such manner but only by a suit at law.

Appeal by defendants from the Circuit Court of Perry county; the Hon. Louis BERNREUTER, Judge, presiding. Heard in this court at the October term, 1932. Reversed and remanded with directions. Opinion filed January 23, 1933.

M. C. Cook and W. O. EDWARDS, for appellants.

NELSON B. LAYMAN, for appellee.

MR. PRESIDING JUSTICE BARRY delivered the opinion of the court.

Appellee is a physician and conducts a hospital, the water supply for which is procured from the city. He rendered medical services to three persons who were in the employ of the city and for which he made a charge of $25 against the city. He made no showing that the city was liable for such services by virtue of a contract or otherwise. He refused to pay for the water used unless the city would credit him with the $25, and for that reason his water supply was shut off. He then filed this suit and procured a mandatory injunction, without notice, requiring the city to turn on the water. After answering the bill, a motion was made to dissolve the injunction and the same was denied.

Appellee admits that the water bill is just and correct. His sole contention is that he should only be required to pay the balance thereof after taking credit for the medical services aforesaid. If a consumer refuses to pay a bill and the city continues to furnish him water that he pays for, the city will not be permitted to shut off the water because of the nonpayment of the old bill. If the water is shut off under such circumstances and a suit for injunction is brought, the city cannot litigate, in that suit, the validity of the old bill but must sue at law. 27 R. C. L. 1455; Wood v. City of Auburn, 87 Me. 287, 32 A. 906; Hatch v. Consumers Co., 17 Idaho 204, 104 P. 670; Holly v. City of Neodesha, 88 Kan. 102, 127 P. 616. If a city accepts a due bill from a consumer for water furnished and continues to furnish him water that he pays for, the city cannot shut the water off for a failure to pay the due bill. Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S.W. 1058. If a city compels a purchaser of a building to pay back water rent under a threat that if he did not do so the water would be shut off, he may pay the bill and recover the amount from the city. City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40.

The law is well settled that a city will not be permitted to force the payment of a separate and distinct claim by shutting off the water or to litigate such a claim in a suit for injunction. That being true, appellee cannot litigate in this case the merits of his claim for medical services. If he thinks he has a valid claim he must sue at law. The order denying the motion to dissolve the injunction is reversed and the cause is remanded with directions to allow the motion and dissolve the injunction.

Reversed and remanded with directions.