AUGUSTUS P. LORING & another, trustees, vs. COMMISSIONER OF PUBLIC WORKS OF THE CITY OF BOSTON.

RUGG, C.J. This proceeding was instituted for the purpose of compelling the respondent, as the officer of the city of Boston in charge of its water system, to remove from the registry of deeds statements of liens for water rates filed by him with respect to real estate owned by the petitioners. These statements were filed pursuant to St. 1923, c. 391.

The facts pertinent to the controversy are these: The petitioners are owners of a parcel of real estate in Boston. They leased it to the Middlebrook Wool Combing Company, a corporation, which remained in continuous and exclusive occupation of the estate under the written lease and renewals thereof from early in 1913 until May 14, 1927, when the petitioners entered and terminated the lease for nonpayment of rent. The last renewal lease was dated January 18, 1923. Its term was five years, commencing on February 1, 1923. Under the terms of these leases, the lessee expressly covenanted to pay all water rates. The lessee conducted on the demised premises the business of washing and combing wool, and to the knowledge of the petitioners used large quantities of water. Early in its occupancy the lessee, without objection by the petitioners, installed a large, in place of a comparatively small, intake pipe from the water supply system of the city of Boston, and was the exclusive user of all the water furnished to the premises by the city. Bills for such water during the tenancy bore the names of the petitioners as "owner" and, as the mailing address, the name of the tenant, and were delivered on the premises through the mail to the tenant and were paid by it, except those for the third and fourth quarters of 1926 and first quarter of 1927, all of which remain unpaid. These bills were dated respectively

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September 30, 1926, December 31, 1926, and March 31, 1927. The city continued to furnish water to the premises without interruption while these several bills remained unpaid and until after November 1, 1927, when it was shut off at the request of the petitioners. On August 5, 1927, the tenant was adjudicated bankrupt and there is little prospect of any substantial dividend to its general creditors. The respondent, acting under St. 1923, c. 391, in his official capacity has filed with the registry of deeds notices of liens on the premises of the petitioners to enforce the claim of the city for the unpaid water bills for the three periods of time heretofore described. The single justice found as a fact on evidence not reported that the delay of the city in shutting off the water upon failure to pay the water bills as presented was unreasonable. Apparently that delay also was contrary to the regulations and ordinances of the city.

Provision for an ample supply of water for the use of those who dwell or do business in crowded centers of population is manifestly a public utility of first importance. It has direct and intimate relation to the public health and public safety and to the public welfare even in its most restricted sense. This service may be undertaken under legislative authority by municipalities, and the power of eminent domain may be employed in its establishment and maintenance. Commonly in this Commonwealth this service, when conducted by municipalities, has been regarded in many aspects as partaking of the nature of a utility carried on for profit. Pearl v. Revere, 219 Mass. 604, and cases there collected. It is clear that the police power of the General Court extends to the enactment of all manner of wholesome and reasonable laws to protect municipalities in furnishing water at reasonable rates. It was said in Turner v. Revere Water Co. 171 Mass. 329, 331, that, although no lien for water furnished exists or can be imposed unless there is an express statute to that end, "Of course, it cannot be disputed that, if the Legislature gives a lien upon the land to a water or gas company for unpaid dues, or uses words equivalent to giving a lien, it has the right to do so, and there is nothing more to be said," and at page 335, "The Legislature may give such a company

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a lien, as it has given one to mechanics." It was decided in Leighton v. Ricker, 173 Mass. 564, that, in the absence of a statute to that effect, the owner or lessor is under no legal duty to provide water to a tenant, and in Brand v. Water Commissioners of Billerica, 242 Mass. 223, that the municipality undertaking to furnish water cannot deny water to a tenant and insist upon dealing with the lessor or owner.

A lien for water rates is neither a tax nor a special assessment for particular benefits. It is a method of securing the collection of a charge arising from the use on real estate of a public utility essential to the health and safety of the community. It is supported on the general principles which justify the imposition of liens of numerous kinds. It must be regarded as settled that in general the Legislature may provide for the establishment and enforcement of liens upon the real estate to which water is furnished, even on the order of tenants and in the absence of an express direction by the owner. This is on the broad ground that such liens may aid in providing an adequate supply of water at reasonable rates and hence may be an appropriate element in a scheme of legislation for a public water supply. Turner v. Revere Water Co. 171 Mass. 329. Provident Institution for Savings v. Mayor & Aldermen of Jersey City, 113 U. S. 506. Dunbar v. New York, 251 U. S. 516. The subject in its main aspects has been so thoroughly discussed in these decisions that it now would be futile to do more than refer to them. The general current of authority in other States is in harmony. Atlanta v. Burton, 90 Ga. 486. Ford Motor Co. v. Kearny, 91 N. J. Law, 671. State v. Water Supply Co. 19 N. M. 27, 32, 33. East Grand Forks v. Luck, 97 Minn. 373. Girard Life Ins. Co. v. Philadelphia, 88 Penn. St. 393. Dillon on Mun. Corp. § 1323.

The exercise of the police power within its sphere is not narrowed or inhibited by arts. 1, 10, 12 of the Declaration of Rights of the Constitution of this Commonwealth or by the contract clause or the due process clause of the Constitution of the United States; but the question always arises whether the legitimate bounds of the police power have been exceeded in any particular instance. Commonwealth v. Boston Trans-script

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Co. 249 Mass. 477, 483. Fairmont Creamery Co. v. Minnesota, 274 U. S. 1, 10, 11. Ribnik v. McBride, 277 U. S. 350, decided May 28, 1928. A chief contention of the petitioners is that, as applied to the facts here disclosed, the enforcement of the liens would be unreasonable and hence violate the provisions of the Constitution of this Commonwealth and of the Fourteenth Amendment to the Constitution of the United States. The argument is put forward that, since the lease from the petitioners to the tenant, for whose use the water was furnished, antedated the enactment of the lien statute, and since the lease placed the obligation to pay for city water furnished on the demised premises upon the tenant, the petitioners cannot be presumed even impliedly to have consented to the imposition of the lien. The fallacy of this argument lies in the assumption that the exercise of the police power depends upon the express or implied consent of the persons affected. Land may be subjected to liens for a variety of public improvements, such as the construction of streets, sewers and sidewalks, the sprinkling of streets, the establishment of parks, of drainage areas and of irrigation districts, and like public enterprises, when many of the owners may violently oppose the project. The mill acts, whereby the full use by some owners of real estate may be limited by the use made by another owner of his real estate, rest upon a somewhat analogous principle. The primary and fundamental inquiry is whether the interests of the public require the improvement. When that inquiry is answered in the affirmative, and the means adopted are reasonable, private rights must yield. The interests of the public are paramount and private considerations are subsidiary where the public health and safety are at stake, irrespective of the assent or dissent of property owners. Private property, including contract rights and real and personal estate, is held subject to the lawful exercise of the police power. Opinion of the Justices, 261 Mass. 523, 553. Provident Institution for Savings v. Mayor & Aidermen of Jersey City, 113 U. S. 506, 515, 516. Hudson County Water Co. v. McCarter, 209 U. S. 349, 355. Atlantic Coast Line Railroad v. Goldsboro, 232 U. S. 548, 558. Thornton v.

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Duffy, 254 U. S. 361, 369. The general principle that all property is held subject to regulations necessary for the public good in its proper sense has been applied to uphold liens imposed by the Legislature on all logs in boom for scaling fees against any one owner, Lindsay & Phelps Co. v. Mullen, 176 U. S. 126, and on a stranger's goods in possession of a guest for the benefit of am innkeeper, Horace Waters & Co. v. Gerard, 189 N. Y. 302, and to impose on brothers and sisters liability for the support of a pauper, People v. Hill, 163 Ill. 186.

The case at bar does not present an instance of an attempt to establish a lien for water furnished prior to the enactment of the statute. The water here in question was all delivered after the statute as to liens became operative.

There is no sound ground on which to rest a contention that the liens impair the contract between the petitioners and their tenant to the effect that the latter should pay all water rates. The liens do not in any respect impair the obligation of that contract. That obligation remains in full force. The lien is simply an additional security to the city. But as was said in Union Dry Goods Co. v. Georgia Public Service Corp. 248 U. S. 372, 375, 376: "That private contract rights must yield to the public welfare has often been decided by this court." Chicago, Burlington & Quincy Railroad v. McGuire, 219 U. S. 549, 567-569. Opinion of the Justices, 261 Mass. 523, 553.

Even on the doctrine of implied assent, to which reference is made in Dunbar v. New York, 251 U. S. at pages 517, 518, the petitioners cannot prevail. They are charged with notice of the statute. It is almost unthinkable that any landlord should wish his buildings to be without a water supply. It was within the power of the petitioners to ascertain whether the rates were being paid promptly by their tenant and to have taken steps to protect themselves. Many liens have been upheld where the inference of implied consent was quite as tenuous as in the case at bar. See, for example, liens for repairs on a vehicle against a mortgagee, Hammond v. Danielson, 126 Mass. 294, or on an automobile against a mortgagee, Guaranty Security Corp. v. Brophy, 243 Mass. 597,

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and against a conditional sale vendor, Dunbar-Laporte Motor Co. v. Desrocher, 247 Mass. 292. There is nothing pertinent to the present issues in Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 7, where the police power was not involved, but only a possibly retroactive statute. There is nothing of that sort in the case at bar.

The circumstances that there was unreasonable delay by the city in shutting off the water from the demised premises for nonpayment of the rates and that there was failure on the part of city officers to comply with ordinances and regulations in this respect, do not exonerate the land of the petitioners from the lien. It is provided in § 42A, added to G. L. c. 40 by St. 1923, c. 391, that, "If the rates and charges due to a city ... for supplying water to any real estate at the request of the owner or tenant, . . . are not paid within sixty days after their due date, the same shall be a lien upon such real estate . . . ." This remedy is provided in addition to all other and previous remedies open to the city and not as an alternative to any of them. It does not impair or cut down such remedies in any particular. The purpose in the enactment of this provision was to facilitate and increase, and not to restrict and hamper, the collection of water rates. It was designed to prevent losses to the public revenue. The right to the lien is not made dependent upon compliance with city ordinances or regulations, but is quite distinct and separate from such subsidiary considerations. The right to the lien also is independent of the state of the initial obligation to pay for the rates. It is of the utmost importance to the rental value of real estate that there be available for use on it an abundant supply of water. It is this factor of utility on which the statute is in part founded, and on which it may be justified. In that aspect, it is of slight consequence whether the tenant or the landlord may order the turning of the water into the intake pipes of the real estate. It was contemplated by the petitioners and their tenant that water was to be used on the demised premises, and they provided so far as they could that payment for such use should be made by the tenant rather than by the landlord. The default of the tenant did not relieve the real estate from the lien which had been

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imposed by the superior public authority for the preservation of the public health and safety. The fact that the tenant has become insolvent is the misfortune of the petitioners, but it does not affect the enforcement of a right lawfully established for the public welfare. Dunbar v. New York, 251 U. S. 516, 518.

Unreasonable delay in shutting off the water for nonpayment of the water bills is a factor irrelevant to the enforcement of the lien in conformity to the enabling statute. The Legislature has not imposed any such limitation upon the lien. It is not within our province to do so. Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42, 47, 48.

No questions as to practice or procedure or form of remedy have been raised, and we have not considered them. Since the result must be the same in any event, we have treated on their merits the issues raised by the parties on the record. Commonwealth v. McNary, 246 Mass. 46, 48, and cases there collected. Davis v. Smith-Springfield Body Corp. 250 Mass. 278, 284. Diaz v. Patterson, 263 U. S. 399, 402.

Petition dismissed.