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Oliver v. Hyle

August 27, 1973

OLIVER ET AL, APPELLANTS,
v.
HYLE ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Pat Dooley, Judge.

Glen H. Downs, Legal Aid Service -- Multnomah Bar Association, Inc., Portland, argued the cause and filed the briefs for appellants.

Walter W. Yeager, Sr., Deputy City Attorney, Portland, argued the cause and filed the brief for respondents.

Thornton, Judge. Schwab, Chief Judge, and Fort, Judge.

Thornton

This appeal presents a single issue: May the Bureau of Waterworks of the City of Portland terminate water and sewer service to tenants because they refuse to pay the service arrearages incurred at the premises by previous tenants?

The named plaintiffs*fn1 in this case are all tenants who were threatened with termination of water and/or sewer service when they refused to pay arrearages incurred by prior occupants. The plaintiffs sued on behalf of themselves, and "* * * a class of all persons

similarly situated * * *,"*fn2 seeking declaratory judgment to construe and determine the constitutionality of Section 21.16.030*fn3 of the Code of the City of Portland, Oregon, and for injunctive relief to enjoin the defendants from proceeding under the section.

The trial court denied any relief to the plaintiffs, holding that the Code section was constitutional and that the defendants acted legitimately and within the terms of the Code. Plaintiffs appeal.

The parties stipulated to the facts, which may be summarized as follows:

All the named plaintiffs are tenants under month-to-month tenancies. In all cases, the tenant and landlord had agreed between themselves that the tenant would be responsible for water and sewer service charges. Water was running in all the premises when the plaintiffs inspected them and when they began occupancy. None of the plaintiffs had actual knowledge of service arrearages before beginning their tenancies.

At some point after moving in, all the plaintiffs received water and/or sewer service bills from the Bureau of Waterworks. In all cases some, or all, of the bills sent were for service rendered before the plaintiffs had moved in. All the plaintiffs have at all times offered to pay for water and/or sewer service furnished during their occupancies. However, the Bureau of

Waterworks has refused tender of only this portion of the arrearages, demanding payment in full, and threatening termination of service absent such payment.

None of the plaintiffs, before moving in, notified the Bureau of Waterworks of the change in occupancy. In this connection it was stipulated:

"If notified and requested, it is the practice of the Bureau of Waterworks to take a meter reading and supply a statement for charges incurred for water service to a premises when a change in occupancy occurs."

It was further stipulated:

"* * * However, it is the practice of the Water Bureau to terminate water service despite notice of the change in occupancy, or notice as to who is responsible for water charges if bills for previous water and sewer ...


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