In our original opinion, we mentioned Act No. 270 of 1908 and quoted section 4 thereof. In his application for rehearing, counsel for plaintiff called our attention to the case of State v. Billhartz, 146 La. 855, 84 So. 120, 123, where it was held that said act was "incompetent legislation" and void. Our attention was not called to this case until the application for rehearing was made, and we overlooked it. We granted a rehearing, not *Page 674 because we concluded that our original decree, which affirmed the judgment of the lower court, was incorrect, but in order that we might make it clear that our conclusion was not based on the provisions of that act. The provisions of that act are not pertinent to the issue involved. Our reference to it was purely incidental.
Further consideration of the issue here involved has strengthened our view that the judgment of the lower court sustaining the exception of no cause of action is correct.
Plaintiff's petition is long and much involved, but the substance of its complaint is that the sewerage and water board, which holds a franchise for supplying water to the inhabitants of New Orleans, has cut off the water supply from its premises or is about to do so because the water bills due by tenants have not been paid, and it prays for an injunction,
"Restraining and prohibiting said Sewerage Water Board from at any time shutting off or discontinuing the supply of water in petitioner's properties under any pretense or pretext whatever."
As we pointed out in our original opinion, the sewerage and water board of New Orleans has power and authority, under the law which created it, to make reasonable rules and regulations for the use and consumption of water by pay customers. Under this specially conferred authority, the board has established a rule, which applies to all pay customers or consumers of water, to the effect that, if the water bills are not paid as required, the water supply will be cut off and service discontinued. *Page 675
Plaintiff objects to the enforcement of this rule, and asks that the board be restrained from doing so, or, what amounts to the same thing, it asks that the board be restrained from shutting off the water supply "in petitioner's properties."
The board having express authority to make and enforce such rules and regulations with regard to the use of water as are reasonable, it follows that the only question here presented is whether the rule above referred to is reasonable and not inconsistent with the duty which the board owes to the inhabitants of the city.
We hold unqualifiedly that such rule is reasonable and may be enforced. The board is under no obligation to furnish water free of charge to the inhabitants of the city, except for sewerage purposes. It must either collect for the water it supplies or cease to operate. It cannot exist without revenues, and its only revenues are derived from the sale of water. If a customer of the board refuses to pay for water, it has a perfect, legal right to refuse him further service, and this for the patent reason that it is under no obligation to furnish him water free of cost. Under no theory can it be said that the board must extend credit to its customers and take chances on collecting the accumulated sums. Such a policy would, in all probability, bankrupt the board. The board refuses to furnish water to those who will not pay; it cuts the water off when the customer refuses to pay his bills. This it has the legal right to do.
We quote the following from a case note found in 28 A.L.R. 472: "It is universally conceded by the courts that either a municipality or a private concern supplying water *Page 676 to the public may prescribe and enforce a rule or regulation which provides for shutting off the water supply from a consumer who has defaulted in payment for the same; at least, where there is no dispute as to the amount owing or the justness of the charge, and the water was not furnished for some other place or person, or for a separate and distinct transaction from that for which a right to a continuance of the supply is claimed."
Such is the holding of the courts of England and the courts of at least twenty of our states, the cases being cited in this note.
Counsel contends that the board has no right to cut off the water supply from his client's premises merely because the tenants refuse to pay. The answer is that there is no way of cutting off the water from the tenant without cutting it off from the premises.
It is alleged that the board has demanded that the property owner pay the tenant's bills or guarantee their payment, and further that it has threatened to enforce the payment against the property, and the court is asked to restrain the board from doing so.
Courts cannot restrain one person from making a demand upon another. When and if the board seeks to enforce such demands or to subject plaintiff's property to the payment of such bills, plaintiff may then set up and urge all such legal defenses as it has.
Our former decree is correct, and is reinstated and made the final judgment of the court.
ST. PAUL. J., takes no part. *Page 677