Alabama Attorney General Opinion 1979-0030

# THE ATTORNEY GENERAL STATE OF ALABAMA · MONTGOMERY, ALABAMA 36130 CHARLES A. GRADDICK ATTORNEY GENERAL 79-00030 January 30, 1979 File # 26 Mrs. Faye Swanner City Clerk, City of Clanton P. O. Box 580 Clanton, AL 35045 MUNICIPALITIES—POLICE POWER—WATER City can impose, as a condition precedent to furnishing water, a requirement that an applicant must secure health department approval of sewage disposal facilities. Dear Mrs. Swanner: This letter is in response to Ms. Carlisle's letter of August 2, 1978. It is our understanding that you are the new City Clerk. In Ms. Carlisle's letter she asked the following question. Is it unconstitutional for the City of Clanton to require, as a condition of connecting with the city water system, that an applicant must secure sewage or septic tank approval from the health department. The question is answered in the negative. Mrs. Faye Swanner January 30, 1979 Page 2 A city has the authority to require that reasonable conditions be met as a prerequisite to furnishing water. In Alabama this authority was recognized the the cases of Moody v. Barrentine, 284 Ala. 302, 224 So.2d 655 (1969), and Wheat v. Ramsey, 284 Ala. 295, 224 So.2d 649 (1969). The Wheat case upheld the constitutionality of a city housing code that was challenged as being unreasonable, discriminatory and violative of the due process clause of the fourteenth amendment. The particular provision challenged was a section requiring every dwelling to have a properly installed kitchen sink, lavatory, tub or shower and a water heater. In its opinion the Supreme Court held that, ". . . the governing body of the City of Dothan had the legal authority under its police power to adopt reasonable health and sanitation ordinances to protect the public health and promote the general welfare." The Moody case was a companion case of Wheat v. Ramsey. In Moody the Supreme Court reversed a lower court's writ of mandamus requiring the City of Dothan to furnish the appellee with water and electricity. The City of Dothan, acting to uphold the city building code challenged in Wheat, had demanded that the appellee install a water heater, bath tub and lavatory in his house as a condition precedent to furnishing water and electricity. The appellee petitioned the circuit court for a writ of mandamus to require the city to furnish services. The circuit court issued the writ, and on appeal the decision of the circuit court was reversed and remanded on the basis of the ruling in Wheat v. Ramsey, supra. The conclusion to be drawn from a reading of Moore and Wheat is that a city can, when acting pursuant to its police powers, require that reasonable conditions be met before furnishing water. As noted in the Wheat case, the imposition of such conditions is grounded in the city's exercise of its police powers. The general proposition that it is the right and duty of a state possessing police powers to adopt such laws and regulations as are necessary to preserve the public health is well recognized. 16 C.J.S. Constitutional Law, §183, p. 919. In Alabama the authority to exercise police powers has been partially delegated to cities and towns: All cities and towns in this state shall have the power to maintain the health and cleanliness of the city or town within its limits and within the police jurisdiction thereof. Code of Alabama 1975, §11-47-130. Mrs. Faye Swanner January 30, 1979 Page 3 In addition to the powers granted to them by the applicable provisions of this title or any other provision of law, all cities and towns of this state shall have the following powers, and the councils or other governing bodies of such cities and towns may provide by ordinance or resolution for the exercise or enforcement of the same: to prevent the introduction of contagious, infectious or pestilential diseases into such cities or towns; . . . to adopt such ordinances and regulations as the council or other governing body may deem necessary to insure good sanitary conditions in public places or in private premises in the cities and towns . . . . Code of Alabama 1975, §11-47-131. In *Spear v. Ward*, 199 Ala. 105, 74 So. 27, the Supreme Court discussed such a delegation: The Legislature has the undoubted authority to authorize municipalities and cities to pass ordinances relating to any of the subjects of municipal regulation, except such as may be inhibited by the Constitution or our municipal form of government. The preservation of the public health by the installation and maintenance of sanitary systems of sewers and closets is well recognized as one of the most important duties of municipal governments, and falls clearly within the police powers of government, subject to which the inhabitant and citizen of the municipality holds his individual rights to property and to liberty. The court went on to say: As before stated, one of the most important objects of municipal government is the preservation of the public health; and science has demonstrated that nothing contributes more to secure that end than a sanitary system of sewerage and water-closets connected therewith; Mrs. Faye Swanner January 30, 1979 Page 4 and the benefits of such a system are largely lost unless the inhabitants of the city can be compelled to connect their premises with the system . . . . To this end the Legislature has clothed municipalities with the power and authority to pass ordinances, by-laws, etc. The municipal authorities to this extent exercise the police power of the state . . . . It is evident from the authorities cited that cities in Alabama have been delegated police powers to protect the public health, and generally the exercise of those powers has been upheld by the courts, but it is necessary that the requirements imposed by the city must have some rational relation to the legitimate end sought to be protected. In light of the foregoing analysis, it is the opinion of this office that the requirement imposed by the City of Clanton is constitutional. The requirement is a reasonable exercise of the city's police power. The requirement that an applicant for city water service must present health department approval of the premises' sewage disposal facilities before being furnished water is well founded in protecting the health interests of the community. Properly functioning sewage disposal facilities are undoubtedly in the public interest, and as the Supreme Court noted in *Spears v. Ward*, *supra*, the benefits of such measures are lost unless citizens can be compelled to properly install and use such facilities. It should be noted that most modern sewage disposal facilities are dependent on a clean water supply, and connection to a water source is an integral part of such systems. It is difficult to imagine a more reasonable or rational way to assure that proper sewage disposal facilities are installed than to require that such facilities be approved by the health department before water can be furnished by the city. The requirement in question is well-founded as a measure to protect the public health, is reasonably applied and rationally related to the legitimate and compelling goal of protecting the public from raw sewage, and is clearly within the city's authority to exercise police powers. In light of these findings, it is our opinion that the requirement in question is not unconstitutional. Mrs. Faye Swanner January 30, 1979 Page 5 Hopefully, this opinion is a satisfactory response to the question raised by the City of Clanton. If there is a need for clarification or if we may be of further service in other matters, please do not hesitate to contact our office. Sincerely, CHARLES A. GRADDICK ATTORNEY GENERAL By- CHARLES A GUYTON ASSISTANT ATTORNEY GENERAL CAG:ln