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AGO 1956 No. 320 - September 20, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

PUBLIC UTILITY ‑- COLLECTION OF SERVICE FEES FEES ‑- PUBLIC UTILITY ‑- COLLECTION OF ‑- REMEDY

RCW 35.21.290 does not apply where an owner gives the superintendent of the public utility a notice and at the time there are no delinquent charges.

If there is a delinquency and the statute is complied with by the owner, the single compliance by the owner would not apply to all subsequent tenancies.

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                                                              September 20, 1956

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington

                                                                                                              Cite as:  AGO 55-57 No. 320

Attention:  !ttMr. A. E. Hankins, Chief Examiner

            Division of Municipal Corporations

Dear Sir:

            You requested the opinion of this office on the following questions:

            1. Does RCW 35.21.290 apply where an owner gives the superintendent of the public utility a notice and at the time there are no delinquent charges?

            2. If there is a delinquency and the statute is complied with by the owner, would it apply to all subsequent tenancies?

            We answer both questions in the negative.

                                                                     ANALYSIS

            The following statutes are involved in the determination of these questions:

             [[Orig. Op. Page 2]]

            RCW 35.21.290

            "Cities and towns owning their own waterworks, or electric light or power plants shall have a lien against the premises to which water, electric light, or power services were furnished for four months charges therefor due or to become due, but not for any charges more than four months past due:  Provided, That the owner of the premises or the owner of a delinquent mortgage thereon may give written notice to the superintendent or other head of such works or plant to cut off service to such premises accompanied by payment or tender of payment of the then delinquent and unpaid charges for such service against the premises together with the cut-off charge, whereupon the city or town shall have no lien against the premises for charges for such service thereafter furnished, nor shall the owner of the premises or the owner of a delinquent mortgage thereon be held for the payment thereof."

            RCW 35.21.300

            "The lien for charges for service by a city waterworks, or electric light or power plant may be enforced only by cutting off the service until the delinquent and unpaid charges are paid.  In the event of a disputed account and tender by the owner of the premises of the amount he claims to be due before the service is cut off, the right to refuse service to any premises shall not accrue until suit has been entered by the city and judgment entered in the case."

            In order to answer the questions presented, we must first analyze the purpose and function of the aforementioned statute in light of the rights and duties of a public utility in its contractual relationship with the public.

            A city, in so far as the ownership and operation of its electric and water plants are concerned, is a public service corporation and must serve all who apply and are willing to comply with its reasonable rules and regulations.  McCormacks, Inc. v. Tacoma, 170 Wash. 103.  It is apparent from this broad duty that is placed upon a public utility that it is not allowed to discriminate as are other businesses in regard to with whom it shall do business.  In order to compensate for this factor the legislature passed RCW 35.21.290 and 35.21.300.

             [[Orig. Op. Page 3]]

            Our court, in expressing the remedy which these statutes afford a public utility, stated inMetropolitan Life Insurance Co. v. Hansen, 179 Wash. 537, 543:

            ". . . the city is not given any lien at all, in the technical or usual sense of that term.  The property served by the city is not liable for the charge, nor is the property to be regarded as security for the payment of the city's claim.  What the statute has granted to the city is a definite, positive and unqualified right to shut off its service from the premises until the delinquent charges are paid.  It is a right that is coincident with the city's right to operate its water, light and power plants. . . ." (Emphasis supplied.)

            The intention and purpose of the legislature in enacting the statutes in question is further clarified by the court's interpretation of the legislative intent regarding the 1933 amendment to RCW 35.21.290 on page 539 of Metropolitan Life Insurance Co. v. Hansen, supra, to-wit:

            "In 1933, the legislature amended § 9471, [RRS] . . . [RCW 35.21.290] by adding thereto two provisos.  Under the first proviso, the owner of the premises, or the owner of a delinquent mortgage thereon, may give written notice to the head of such utility to cut off the service from the premises, and from and after the giving of such notice and the payment or tender of the then delinquent and unpaid charges plus the cut-off charge, the city shall have no lien against the premises for any charges for such service thereafter furnished, nor shall the owner of the property, or the owner of a delinquent mortgage thereon, be held for the payment thereof. . . ."

            We are of the opinion that the aforementioned language of the court in 179 Wash. 537 clearly indicates the first portion of RCW 35.21.290 limits the aid the statute gives public utility companies to turning the utility off on certain premises pending payment of delinquent charges.  The second portion of RCW 35.21.290, starting with the word "Provided," modifies the preceding portion of the statute by granting the owner of the premises the power to limit this right of the public utility company by notice to terminate service, tender of the delinquent sum up to four months and tender of the cut-off charge.

            Thus, in answer to your first question, the nature of the acts required of the owner under RCW 35.21.290 necessarily presupposes the existence of  [[Orig. Op. Page 4]] delinquent charges before the owner may give notice to terminate service.

            In answer to your second question, it is clear from the court's aforestated language in 179 Wash. 537 that the intent of the legislature in enacting RCW 35.21.290 was to offer the public utility companies a means of securing delinquent payments.  To allow a single notice by the owner to constitute a restraint of the use of the remedy against all subsequent occupants of the premises would defeat the prime purpose of the statute.

            Therefore, the notice by the owner only applies to the deficiency owing by the party having the then existing contract with the public utility company.

            We hope the foregoing analysis will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General


JOHN S. ROBINSON
Assistant Attorney General

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